I sometime envision opposing counsel in highly contentious domestic litigation as a bullying gunslinger, shooting bullets at my client’s feet and demanding that my client dance.
This feeling typically occurs when opposing counsel makes some horrific allegation about my client–he’s a pedophile; she’s a crackhead–and expects my client to dance to dodge (disprove) these bullets (claims).
Now sometimes I have good reason to suspect my client is, indeed, the crackhead or the pedophile. In those circumstances I will sometimes have my client undergo the appropriate diagnostic testing in order to determine whether my client has problems that need resolution for me to move the case forward. I’ve gladly represented addicts, the mental ill, and the sexually deviant in family court but, until my client and I know exactly what the problem is, it’s hard to set client goals or develop a strategy to achieve these goals.
However, often, these allegations are merely some claim the other party has come up with in order to throw stones in my client’s passway, with the goal of having my client expend his or her limited resources clearing his or her name so there aren’t resources for my client to achieve his or her goals. In those circumstances, I typically agree to such diagnostic testing only upon two conditions: 1) the other party initially pays the costs of such testing and; 2) the other party provides me an affidavit stating the allegations that merit such testing.
Meet those two conditions and there are few hoops I won’t advise my client to jump through. However, in my requiring those two conditions, I achieve two goals. First, I require the opposing party, as opposed to my client, to expend resources. Second, if the diagnostic testing clears my client, I not only have evidence that benefits my client, I can show the other party has made inaccurate and derogatory claims against my client, under oath.
Attorneys who merely have their client dance to the tune the other party calls are failing to get the full benefit they could achieve from clearing their client.