The attorneys or clients who cry wolf

Posted Friday, May 21st, 2010 by Gregory Forman
Filed under Attorney-Client Relations, Jurisprudence, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In Aesop’s fable of “The Boy Who Cried Wolf” a shepherd boy entertains himself by repeatedly pretending a wolf is attacking his sheep.  Each time the villagers come running to assist him only to discovery it’s a false alarm.  Eventually the boy suffers consequences when a real wolf comes and the villagers, thinking it’s another of the boy’s tricks, fail to come to his aid.  As a consequence, the boy gets eaten by the wolf.

In family court, a few attorneys have a reputation for crying wolf: frequently raising the cry of emergency.  A small subset of family court clients will also cry wolf.  In Aesop’s fable, there were severe consequences for crying wolf; in family court, not so much.

I lump emergency claims into three categories: actual emergencies; perceived emergencies; and emergencies because someone waited too long.  “Perceived” emergencies are typically situations in which irritation has been overblown: one parent is keeping the child a bit longer than the court order allows or allowing the child to play a video game the other parent doesn’t approve of.  The client, naturally, wants his or her attorney to “fix” the problem immediately.  Thus begins a typically fruitless round of telephone or e-mail tag.  I call opposing counsel to complain (or opposing counsel calls me to complain), a client gets called and is asked to respond the accusation, a denial is issued or an excuse offered, this is communicated back to the other attorney who relays it to the complaining party who remains unsatisfied–and the daisy-chain continues.  When it doesn’t get resolved an emergency hearing request sometimes gets filed.  By claiming “emergency” over issues that are merely irritating the client, or the opposing party, expects me to disregard my other work to focus on his or her concern.  It’s this type of self-centered thinking that often necessitated the high-conflict litigation. Such folks are exhausting to work with.

Included in the latter category of delay-created “emergencies” are emergency hearing requests to set Christmas or Thanksgiving visitation.  I can look at a calendar and know the dates for these holidays millennium in advance (assuming these holidays are still celebrated in the year 5284).  Yet each year some attorney will seek an emergency hearing to set holiday visitation.  From clients these emergencies arise because humans sometimes procrastinate rather than resolve issues and, with a deadline approaching, they need immediate attention to preserve their rights.  Since few professionals do their best work while rushing, handling these “procrastination” emergencies is draining.

Twice in the last few months, I have been retained to file a post-trial motion right before the deadline to file, on one occasion at 4:00 p.m. when the paperwork needed to be filed with the court and mailed to the opposing party by 5:00 p.m.  Both times my new clients wanted to argue procedural issues or have me prepare a more thorough motion, seemingly oblivious to the fact (despite my frequent reminders) that at 5:01 p.m. all effort will be for naught if we haven’t filed the motion yet. You will never observe me in a worse temperament than when I’m rushing to meet some last-minute deadline because my client procrastinated.

Equally frustrating are those attorneys who wait until Friday afternoon to make their emergency hearing requests.  There are two local attorneys–no I’m not going to name them–whom I dread having cases against because at least once every few months I can expect a novella-sized fax to cross the phone lines between 4:45 and 5:30 p.m. Friday, heralding an emergency hearing the following Monday.  When I have cases against these attorneys I cannot safely leave my office early on a Friday afternoon and every weekend approaches with a state of anxiety.

Ironically, from a legal standpoint real emergencies are the easiest to resolve.  Convince me that an emergency situation exists due to my client’s behavior and I will generally counsel my client to agree to the emergency relief request.  Even when there’s a factual dispute as to whether an emergency exists, the narrow focus of most true family court emergencies–either mom’s smoking crack or she isn’t; either dad’s beating stepmom in the children’s presence or he isn’t–limit the feeling of being overwhelmed by the dispute.

Still any type of emergency is exhausting to handle.  Most family law attorneys have dozens of clients and an emergency means our other clients need to be patient until the emergency is resolved.  My long-time clients have sometimes commented that they knew I was dealing with an emergency because e-mails and phone calls took longer for me to respond to.  Further, emergencies generate strong negative emotions and while attorneys try to maintain some emotional detachment from their clients’ emotions, there’s always some leakage.  Clients who come to me with repeated irritant or delay emergencies are subtly encouraged to modify their behavior or find other counsel.  Even clients who have repeated legitimate emergencies raise concerns because it means that we are failing to find a long-term resolution to the problems that led them to me initially.  Rather than hopscotching through emergencies, it sometimes helps to step-back and focus on what might eliminate the emergencies altogether.

Emergencies are stressful, and the stress created by artificial emergencies is needless torture.  I have frequently cogitated upon how to create consequences for overblown emergencies, so far unsuccessfully.  It would be lovely if I could charge clients double my hourly rate for handling emergencies but creating a bright-line test of what constitutes an emergency is daunting and it seems unfair to charge clients more for situations created by the adverse party.
To learn if there are consequences for attorneys who bring frequent emergency requests, I took an informal poll of some family court judges I respect as to whether they note the identify of the attorney when considering the emergency request in the hope that they judges would know which attorneys “cry wolf” and that there might be consequences for gaining that reputation.  All the judges responded that they didn’t let the attorney’s identity affect their thinking on the emergency request.  One judge noted that he was well aware that some attorneys make frequent emergency requests, some even gaining the reputation for waiting until Friday afternoon to make the request, but that he couldn’t let this affect his judgment.  Despite this knowledge, he explained, one couldn’t let the attorney’s reputation be a factor in his decision-making.

As much as I dislike it, emergency situations are going to be part of any family law attorney’s practice.  If only there was a way to punish litigants or attorneys who get everyone worked up with overblown emergency claims.  Maybe a wolf could come eat them?

3 thoughts on The attorneys or clients who cry wolf

  1. Tamar BenArdout says:

    Well put. :) Actually VERY relevant to my situation at this very moment.
    Ahh well, this too shall pass……

  2. MJ Goodwin says:

    I file maybe 5 or 6 emergencies a year. They always deal with a real threat to a child. But you are right about how some other attorneys do it. I hate that. We have a couple who let their office staff do most of the domestic work and they ask for emergencies a lot.

    Right now, we have a real and the most serious emergency situation that I’ve ever encountered in almost 20 years doing this. A non-custodial parent has vanished with the children. She is mentally unstable and unfit. And it is terrible. Law enforcement is involved; state lines are probably being crossed; and all I can do is file motions and contempt actions. The kids have been gone for a week today. It is about all I can think about.

  3. Consider Rule 11, SCRCP, sanctions; South Carolina Frivolous Civil Proceedings Sanctions Act; or producing expert testimony on the attorney’s fees issue at the final hearing. As an ounce of prevention, post to Facebook as you have, or initiate discussions on the subject with other lawyers whenever you get the chance.

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