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Barbara Handschu Mary Kay Kisthardt

Many lawyers indicate that they do not want to represent a client who is involved in a matrimonial proceeding. Anyone who has handled family law cases knows that we often find our clients at the worst times of their lives and that what we think of as irrational behavior often permeates the situation when clients’ emotions prevail over reasoned judgments. Those who have handled matrimonial litigation sometimes complain that opposing counsel take on the persona of their clients and bitterness becomes the modus operandi between counsel. Many of us have had experiences with courts, tribunals and dispute resolution providers who make it apparent that they are uncomfortable handling family law matters. The first order of business: keeping your sanity In this month’s column we will share some of our thoughts on how to keep your sanity and successfully maneuver through the difficulties of family law practice. These suggestions are intended to be thought provoking. Of course, one must be vigilant for those clients (and sometimes opposing counsel) who suffer from serious mental or other disabilities (perhaps substance or chemical abuse problems). In those instances, one must seek assistance from and referrals to the proper professional providers. We are not implying that we as lawyers in any manner attempt to “treat” these serious problems. That would be a terrible disservice with perhaps disastrous results. Our suggestions are designed to assist you in identifying emotional and behavioral issues that often arise in family law litigation and offer some suggestions on how to address them. A client encountering a matrimonial proceeding (such proceedings include cases with divorce and separation or litigation that involve people who have lived together without marriage perhaps with a child in common or those who are third parties with involvement with a child) is faced with many frightening circumstances. Change in any form is an unknown that may feel like a void. Someone who has to leave his home, not wake up every morning and hug his child, not know if he will have enough money in the future to live decently is faced with life-shattering issues. The very newness of these situations can be terrifying. The person who does not want the separation to occur is even more troubled. The clients may feel betrayed by their most trusted friends. Some married clients remember their vows-to love forever-and they feel anger toward their departing partners. People who have lived together know how to press buttons that have an impact on their partners. When emotions rise people start to play games: Threats of denial of access to children or of absconding with them are often made. It is, in short, a very stressful time for most clients. How does the family lawyer avoid being overly affected by the emotions of these clients? There are several approaches that can be considered. First, it is helpful to educate yourself about what your client may be experiencing. There are many wonderful resources available that describe the emotional stages of a divorce. Familiarizing yourself with them will go a long way toward helping you meet the client “where she is” and consequently to serve her effectively. If your jurisdiction provides parent education classes for divorcing parents, attend one. It is a good way to learn about how children experience divorce and it gives you a sense of what your client is hearing from other professionals. Second, when accepting new clients, encourage them to find a competent mental health professional to assist them through what you acknowledge to be a difficult situation. Explain that neither you nor your staff is competent to help the client through the roller coaster of emotions in the litigation. If they are anticipating custody litigation, they will have to consider the fact that mental health counseling might be mischaracterized and used to cast a negative light on parenting competency. You can assure the client, however, that most judges are sophisticated enough to realize that mental health professionals can assist litigants through difficult times and that seeking such assistance may demonstrate a willingness to become an even better parent. Third, don’t involve yourself in their emotional issues. Set the parameters and perhaps when you get a frantic call from a client who is having difficulty communicating, assure him that you are willing to talk to him but the best course may be to postpone the conversation for a little while. When you get an e-mail that is filled with venom toward you or the other party, the court or opposing counsel, just put it aside (after hard-copying it). Answer it the next day in a calm fashion if it needs an answer. Tell clients that any e-mails that they are about to send out to other parties when they are really angry should be held in “send later” for at least a day. Fourth, keep your clients advised about their case in a timely fashion. You or your staff should answer promptly their telephone calls. Of course, if clients call just to ask “what’s happening,” it is best to remind them that you will transmit promptly copies of all correspondence and written memos of conversations or meetings and that they incur charges every time they insist on such calls. Setting limits is important. When clients become excessive in terms of the number of times they want to have contact with you, perhaps you can give them a particular time on a certain day of the week when they can check in with you. If you are not available at that time, provide your staff with a list of issues that they can review with the client to keep him or her up to date. You may ask yourself why this situation is occurring. Perhaps clients feel that you have not been listening to them. A clarifying conversation about roles and expectations might also help. Finally, be understanding, but do not attempt to be a therapist without that professional license. We are “counselors,” but the counseling should not go beyond legal issues. Many have a hope to remedy wrongs; sometimes the legal system cannot accomplish everything. We need to explain this to clients. Stories of “Rambo” litigators persist. We hear about circumstances where a law office files a motion a day to litigate the case to death. We hear about situations where the opposing counsel identifies with his/her client and the pronoun “we” is in every motion and discussion. We know of times when simple tasks need the intervention of courts because counsel cannot agree on anything. We also know about cases where opposing counsel is not highly versed in the law, which compounds difficulties in litigation. What can be done? Play by the rules; do it by the book Do not play into the games or traps set by difficult adversaries. Play it by the rules and do it by the book. Keep a very careful paper trail. For instance, if you are trying to obtain disclosure material from a difficult adversary, follow up a conversation with a letter verifying the oral request that will permit you to attach the letter to a subsequent motion for disclosure and sanctions if necessary. If you get into an angry discussion with opposing counsel who is trying to bait you, be upfront about the behavior. Tell them that it is inappropriate and ask if he or she is truly interested in resolving the matter. Intimidating behavior and tactics can be dealt with in a constructive manner. Excellent, easy to read resources are available. Basics such as Roger Fisher & William Ury’s Getting to Yes and Ury’s Getting Past No: Negotiating With Difficult People provide concrete suggestions on how to deal with this behavior and move on to effective negotiation. If you find yourself in a new case and then discover that you have had serious conflicts with opposing counsel, you need to reassess the situation. If you have other attorneys in your office, you might consider asking the client if it would better to have someone else handle the matter with consultation from you. If you can’t transfer the case and you are going to proceed, you should probably advise the client that there have been difficulties with opposing counsel in the past and that you will be exercising some caution concerning written and verbal communications. You may need to discuss with the client whether this will increase the costs of litigation or will have an impact on the likelihood of settlement. If your difficult opponent tries to engage you in a squabble in the presence of the court, do not respond in kind. Be direct, address the facts or the law but do not personally attack opposing counsel. In some jurisdictions, such conduct may be actionable. Above all, conduct yourself in a professional, prepared manner that will stand you in good stead with the courts. Keep in mind that judges talk with one another and that it is possible that the difficult adversary is already well known for antics before this and other courts. If that is the case, your professional behavior will be appreciated even more. Perhaps most fundamentally, the best way to address the “craziness” of family law practice is consciously to attend to one’s own health and balance. If attorneys neglect their own personal psychological and emotional well-being, they will be unable to maintain their independent professional judgment on behalf of demanding clients and in the face of unprofessional opposing counsel. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City.Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y., and is president-elect of the American Academy of Matrimonial Lawyers.

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