Better behaving clients

Posted Saturday, November 10th, 2018 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Earlier this week I received what may be one of the bigger complements of my career. A fellow member of the local family court bar was discussing two recent cases we’d had against each other. In both of these cases my clients had been represented by other attorneys prior to retaining me and in one case that client had hired subsequent counsel before coming back to me. The complement: “your clients were much better behaved when you were representing them.”

To the extent this statement was true, it is a product of intent. Folks may retain family law attorneys with specific goals in mind but generally what they are searching for is peace in their intimate relationships. This is especially true in cases involving children, as the parties will be dealing with each other in raising their children long after the case is over. There are really only three ways for such clients to move towards peace: 1) employ legal strategies that encourage the other side to modify his or her behavior; 2) convince a family court judge to issue orders that improve the client’s situation; 3) have the client behave in ways that create peace. Of these methods, only the third delivers guaranteed results. Even better, this method does not require contested litigation and is thus much less expensive.

There are two easy ways that attorneys can counsel family court clients towards methods that achieve peace. The first is to counsel them that they must follow the court’s orders–no matter how much they dislike them–until the court modifies those orders. There are four reasons this counsel is crucial. First, a failure to follow court orders typically leads to contempt proceedings. The consequences of being found in contempt can be devastating: $1,500 fine; payment of the other party’s attorney’s fees and costs; 300 hours of community service; a year in jail. Additionally, the failure to follow court orders places both parties in a state of perpetual anxiety, as neither party can rely upon that order’s commands to set expectations on conduct.  Further, being found in contempt greatly increases the other party’s ability to get court orders modified in his or her favor and greatly reduces the client’s ability to do the same. Finally, financial resources a client might use to obtain more favorable orders are now being used to defend contempt proceedings. Clients do not like being told that they must follow provisions of court orders they don’t like. However, such counsel is critical.

The second bit of advice to get better behaving clients is to push them to treat the other party with kindness, no matter how the other party is treating them. There are myriad benefits to such counsel. A subtle benefit is treating the other party with kindness may alter a pattern of mutual disrespect and thereby enable the parties to resolve their differences cooperatively. The obvious benefit is that it makes the family court judge’s task much easier when one party is kind and the other is disputatious. When both parties are treating each other rudely, it’s hard for a family court judge to determine how co-parenting problems may be resolved. When one party is kind and the other is rude, solutions become more obvious.

It should be routine counsel that all communication be conducted with the expectation that a family court judge will read, listen to, or watch it. The test isn’t whether that communication makes the client momentarily feel better (as bouts of self-righteous anger often do) but whether, upon cool reflection, it makes the client feel mature. Further clients could be counseled to develop a more generous mind set. When receiving a request from the other party, clients often seek their attorney’s interpretation of an order with the question, “Do I have to…?” I turn their question around with a “what would be the concern if you did?” If the sole concern is being seen as a pushover, I will typically counsel the client to agree to the other side’s request for a few times and see if the other side develops a more generous attitude. If, over time, my client’s generosity doesn’t engender a more generous attitude by the other party, we can still address these requests with a polite no rather than an accusatory criticism.

Earlier this summer, an opposing attorney asked me to interpret an order that gave my client five weeks at summer. That attorney wanted to know whether the order allowed my client to select two two-week periods and one one-week period (as my client requested) or one two-week period and three one-week periods (as his client demanded). Rather than answer that question, I asked him why it mattered and did his client really need to create this dispute. That question was never answered and my client received the visitation schedule he requested. However, that attorney should never have even raised this issue–and wouldn’t have if he’d asked his client why it mattered. Yet to ask one’s client this question will often cause the client to question that attorney’s advocacy: “why are you taking the other’s side?” The answer: “because changing your relationship dynamic is a key to solving your relationship problem.”

Teaching clients to follow court orders (until modified) even when they don’t like them and to treat the opposing party with kindness may not make the attorney liked. However experience teaches that it solves more problems than all my fancy litigation skills.

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