The pessimistic defendant’s attorney

Posted Tuesday, November 6th, 2018 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants

I suspect I lose a lot of business by projecting a pessimistic outlook when first meeting with Defendants in family law cases. While many litigants prefer the primacy of being the Plaintiff, and thereby going first, I’ve never seen a clear advantage in trial to representing the Plaintiff or the Defendant. However experience teaches that litigants become Plaintiffs because: 1) they believe they have the stronger position; and 2) they are seeking to alter the status quo.

Thus, when first meeting with a Defendant regarding potential representation, one must assume there is a strong possibility that the immediate future is going to shift from the status quo in a manner that will not be to that person’s liking. Generally, the best one can do for a Defendant in the initial part of a case is to preserve the status quo. However informing such litigants that preservation of the status quo is a likely best case scenario–and that much of our early efforts and expense will likely be damage control–does not engender confidence or create warmth.

Thus, in the first few meetings with a Defendant, there is a tension between projecting confidence and setting realistic goals and expectations. Preparing to defend a motion for temporary relief is akin to preparing to defend an invasion. In selecting when to file and what temporary relief to seek, the Plaintiff has already chosen the timing and terms of the “battle.” Generally, the time is when the Defendant has recently engaged in behaviors that weaken his or her position and the Plaintiff’s requested relief is intended to exploit the Defendant’s weaknesses.

A good defense is often one that minimizes the Defendant’s losses or limits those losses to areas of lesser importance. Part of developing the strategy of defending motions for temporary relief is determining where one’s position is weakest (in other words, where is the moving party’s position is strongest), developing strategies to counter those weaknesses, and discussing settlement (surrender) options that limit the damage. None of this preparation is enjoyable or projects confidence. However failing to consider the possibility of loss often leaves the client unprepared for a temporary hearing result.

Many a Defendant has been devastated after a temporary hearing because, in hiring counsel who projected confidence, the possibility and potential mitigation of loss was never considered. Not only was this Defendant unprepared for a negative outcome, but, because there wasn’t such preparation, the negative outcome was worse than it need be. There’s no value in an attorney who projects pessimism to the opposing party and the court–within these realms an attorney needs to appear confident in the client’s position. Yet, as counterintuitive as it may seem, an attorney who, in private, forces a client to consider the worst, and helps the client prepare to avoid the worst outcomes, may achieve the best results in defending claims.

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