Pulled inexorably into disaster

Life is competitive–survival-of-the-fittest and such–and lawyers are among the more competitive life forms.  We don’t like to lose and we especially don’t like to lose big.  Yet, no matter how good an attorney is, occasionally we find ourselves handling a situation in which disaster looms with little the attorney can do can prevent it.  In these occasions, I often wonder which side of the “event horizon” my client and I are on.  Is it too late to avoid the disaster or has gravity taken over to the point that we will inevitably get sucked into that black hole?

Typically these situations arise because a client has spent months, or even years, engaging in a pattern of conduct that the court or factfinder is going to find reprehensible.  In family court there are parents who appear to have spent years creatively determining how to drive their children or the other parent crazy and spouses who seem to believe they are in a competition for a worst-spouse-ever award.  These folks will retain counsel shortly before a motion for temporary relief, and sometimes shortly before trial, hoping that their attorney will make everything come out alright.

How attorneys react to such clients reveals both character and experience.  Some attorneys try avoiding these situations altogether by not taking on representation in which high disaster potential exists.  Even then, court appointments sometimes place these attorneys in such unpleasant circumstances– as anyone who has ever been appointed to represent an unrepentant drug abuser in an abuse or neglect case can attest.

Inexperienced attorneys–we were all there once–often fail to see the looming disaster (incarcerating for contempt; custody being changed; visitation being supervised; support obligations being imposed that leave the client living in penury) until it has happened.  This would perfectly describe my first family court trial.  I counseled a cheating husband to reject a demand on alimony and attorneys fees only to have the judge order alimony and attorneys fees more than twice the rejected offer.  I frequently hear from new attorneys whose clients got hammered by the family court for reasons they find inexplicable but that I, as a more experienced attorney, find completely explicable.

When I was younger, and such disasters struck, I tended to take on the anxiety that my clients would have when they had a horrible result.  I would not only counsel my clients about appeals and petitions for supercedeas, I would suggest we do so immediately.  Often I would begin these appeals and petitions upon the promise of payment only to find that the promised payment never forthcame.  Experience has shown that petitions for supercedeas are rarely granted and the appellate process is slow and expensive: good for remedying injustices; bad for turning around disaster.  Now I avoid taking on my clients’ anxiety when these results occur–remembering that it wasn’t my behavior that brought the situation to this point–and only counsel appeals or petitions for supercedeas when I believe a reversal is likely.

Sometimes very experienced attorneys become merely jaded and cynical about such cases.  They will accept the client’s money, and handle the case to the best of their ability, but give little regard to the possibility that their client is headed towards a horrible resolution.  Such attorneys are rare.  However it requires investment of emotional energy to counsel a client who is facing disaster to try to change his or her ways or limit his or her goals in the hope of remedying or at least limiting the bad outcome.  Typically, these clients are the most resistant to any suggestion that their behavior is counterproductive or that their expectations are unrealistic.  It’s easier to simply take such clients’ money and do one’s best than to continually fight with these clients in the hope of reaching a better–often only slightly better–outcome.

The (Formally) Honorable Barry W. Knobel often counsels,

There are 5 stages in an attorney’s professional life: 1) Optimist – right out of law school; 2) Realist – after 10 years of practice; 3) Pessimist – from the 10th to the 20th year (maybe much sooner); 4) Cynic – anytime after the 10th year; and finally, 5) Hypocrite – the worst of the lot.

I try to remain between stages one and three but the allure of stages four and five is never greater than in these disaster situations.

Unlike the experienced attorneys who avoid such representations, I will take on cases in which I see disaster looming.  Typically my work will then involve trying to resolve the matter by agreement in a way that leaves my client very unhappy but avoids complete disaster or to develop sufficient evidence to obtain a slightly better result.  The best legal work isn’t necessarily helping a great client win a strong case; rather it may be that the best work is helping a client with a horrible case avoid a disastrous outcome.  This can only happen if that client is finally willing to accept some responsibility for the actions that have led to this place.  Too often such clients merely deny any fault or responsibility and continue to blame everyone but themselves for their legal problems.

These are the very clients most often resistant to the idea that their actions might be leading them to a disastrous conclusion.  Such clients are the worst any domestic attorney can have.  These representations are incredibly stressful, as I spend much of my time trying to get my clients to understand the situation is dire while my clients, refusing to understand my fuss, assume all their claims will be accepted by the court and that the outcome will surely go their way. These clients will further accuse me of not “taking their side” because I am perpetually harping on their personal flaws.  Despite my best efforts, disaster generally strikes.  In every such case, at some point before that occurs, I have a moment in which I am mildly optimistic that it won’t be as bad as I fear.  Then I get the result and question why I was every hopeful; perhaps I was/am merely decisional.

Even though I have tried to prepare my client for this possibility, they uniformly remain surprised when it actually occurs.  It’s as though every warning I issued was simply unheard.  Instead, the judge is then blamed for failing to accept my client’s position, witnesses are blamed for lying or being biased, and I am blamed for the horrible result.  After disaster strikes these clients finally show willingness to consider negotiated outcomes short of total victory but the moment to achieve such resolution has passed.  Of course, I am further blamed for failing to encourage the client to accept this position previously.

I’m glad to be past the point in my career in which I often fail to see disaster looming on the horizon, but hope I never reach the point in my career in which I am too blase to care.  Still, the most stressful part of my practice are those situations in which I can spot an “event horizon” and recognize that there is little I can do to avoid impending disaster while my client, deaf to my counsel, remains oblivious.

 

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  • Well said, Greg.

  • I find it more more fun and more professionally satisfying to represent the underdog rather than the overdog. Erin K. Urquhart and I have more than our fair share of cases in which we represent alcoholic mothers. Our first goal is to rehabilitate our client and then present our client in a positive light while avoiding any negative testimony by our client against her spouse. We have had some clear wins but the real success is getting a better result than the client would otherwise have gotten regarding custody and visitation. I did not go to law school to represent sane upper class clients in “slam dunk” cases.

    Erin and i take a few cases every year where we voluntarily “punch the tarbaby,” our expression for a case where we are going to do everything necessary including the hiring of experts, whether our client can afford to pay us or not. Those have been some of our favorite cases. Sometimes we get court ordered attorney’s fees, sometimes not. Sometimes our client actually pays all or part of our fee, sometimes not.

    Yesterday we tried a criminal domestic violence jury trial where our client had been offered a dismissal if he would attend twelve sessions of anger management counseling. Turning down such an offer was probably legal malpractice per se; however, the client felt that he was innocent and did not want to do anything to suggest he accepted guilt. Had we lost the case, i would have give the client credit for most or all of the fee. After we won and he recovered the bond he posted, he paid $1,000 toward our fee and, I expect and hope, he will eventually pay it all.

    Where do I fall on your optimist-hypocrite continuum?

    • Wouldn’t presume to tell you where you fall on the optimist-hypocrite continuum. I know you can’t say tarbaby anymore as it’s politically incorrect. Which is sad because it’s such a vivid image.

  • I have spent the past 24 hours considering a “bad” result I had yesterday in Family Court. I put “bad” in quotation marks, because some attorneys I have told about it view it not as a loss, but as a less-than-win. I acknowledge there is a difference. In my situation, I was quite confident going into trial that we would prevail on a change of custody. I still think we should have prevailed, but realize it was a close call. My view of the coming “less-than-win” began with my second witness, who was my client’s mother and who (after complaining loudly about the father for some 3 years now) testified that he is in fact a good father and that nothing had changed in the 6 years since the divorce. Well, that was completely contrary to everything she had said up until that time. The third witness (grandmother’s neighbor) performed in the same way. We were blindsided by this. The other factors that I think played into my “less-than-win” were the judge (no control on that) and a very weak Guardian ad Litem. I plan to use his report in future CLEs (names omitted of course). Add a crazy counselor and it’s over, a “less-than-win”. The wishes of a 12 year old child were virtually discounted. I think I would have won if I had tried this case next week with a different judge. On the positive side, my client ended up with much more visitation than she had before and no attorney fees were ordered to be paid. Certain restraining orders that will benefit my client were also entered. In this case, dealing with the “less-than-win” has been harder for me because opposing counsel was rude and belligerent throughout the case. Interestingly, that is a course of conduct for that particular attorney with virtually all other attorneys. Around 5pm yesterday, I had multiple incoming texts from several different attorneys wanting to know if my opposing counsel had suffered a loss or any discomfort (inflicted by me or anyone else) during the trial. Sad. So while I wouldn’t say it was a disaster for my client (she actually took it pretty well), I have had some difficulty dealing with it. I am not so naive to think I will never lose. However, I don’t do it frequently. I do try to take cases that I think I can win and I do try very hard to turn around my client’s bad situations with good lawyering. But there is little any attorney can do when the witnesses change stories midway through their testimony. In my case, I predict that the child will be with the mother by the time he is 14. He will become so unmanageable that his father will relent and let him go (as he did with the older child who is now 19).

  • I know this an old blog but I’ve spent much of my weekend licking my wounds from my own “bad result” on Friday and researching how to best resolve the situation for my client (thank you again, Greg, for taking my call Friday night). While I continue to work on the best option for my client, reading this blog raises another point – how to handle the loss myself. You and MJ might want to consider one day speaking on the topic at a CLE. I’m the same as MJ – I honesty haven’t lost that many hearings, because I try to only go to court when I think I can win. It was a lesson taught by many of my great mentors that I took to heart. Nonetheless, we all sometimes lose and sometimes the loss is harder to swallow than other times. As a still new-ish attorney, I’m still learning how to dust myself off after one of those “I should have one” losses. It would be a good mental health credit topic – I’m sure my tactic of stopping by the liquor store on the way home wouldn’t be the advisable approach =)

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