What we got here is a failure to communicate

A few months ago I tried an initial custody case involving an eight-year old child on behalf of the father against a pro se mother.  Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114 (2004), stands for the proposition that “there is an assumption that custody will be awarded to the primary caretaker.” Aware of this, I attempted to create substantial evidence in support of father’s claim for custody by showing that he was the primary, and only stable, caretaker for the child.

During the child’s life there were three periods, each lasting approximately one year, that mother was largely absent: once due to medical incapacitation; once due to incarceration; and once due to a move to Louisiana.  At trial my cross examination of her attempted to elicit testimony that she was unable to “care” for the child during these periods.  She vehemently denied what, to me, appeared seemingly obvious, claiming that even while incarcerated or hospitalized or a thousand miles away, she had “cared” for her child.  Each time she would explain her “care” in what I perceived of as largely irrelevant details: she had sent the child a doll or a few articles of clothing.  In the heat of trial these answers seemed slightly loopy.  Meanwhile, she seemed to take great offense at my questions.  The whole experience was slight surreal but in family court one gets used to this feeling, even if the feeling never become wholly comfortable.

Long after the trial, I had an “a ha” moment:  Mother and I had differing definitions of “care.” Using the definition from Patel, I understood “care” as the actual work of handling the child’s day-to-day physical and emotional needs.  Mother saw “care” as being concerned about the child’s well being and wishing the child’s happiness.  From mother’s perspective, asking her if she “cared” about her child was offensive: how dare some attorney imply that didn’t wish her child well?

In any litigation, and especially at trial, an attorney needs to strive for clear communication.  Given the specialized training and typically higher level of education that attorneys have compared to the general population, there is always a concern about speaking over the audience’s or witness’ head.  Even when my questions don’t struggle against the mangled syntax that happens when your thoughts alter slightly in the midst of asking a question, I remain concerned that my questions may contain words not understood by the witness.  One benefit of a large vocabulary is that one has a better chance of selecting the “right” word for the particular thought one is trying to convey.  However if the word being used isn’t understood by the audience, using the “right” word is less effective than using a simpler word.  The balance between choosing the right word and the simpler word is a continuous struggle.

In the example above, however, even a simple word like “care” created tremendous misunderstanding.  With greater emotional intelligence I might have had that “a ha” moment during trial, been able to acknowledge my lack of dispute that mother was always concerned for her child’s well being, and been able to clarify my questioning to note that I was seeking information on mother’s day-to-day care for the child’s physical and emotional needs.  Instead mother and I locked-horns during a frustrating day.

In litigation clear communication remains the attorney’s responsibility.  The lesson–being learned slowly as I gain experience but never learned perfectly–is that even seemingly simple communication can lead to great misunderstand.

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