Let’s save the warm fuzzies for the end of the case

Posted Wednesday, October 14th, 2020 by Gregory Forman
Filed under Attorney-Client Relations, Of Interest to Family Court Litigants

I am aware that I could double my case load if I gave potential clients the warm fuzzies and projected more confidence in a likely favorable outcome in their initial consultations. Clients who want warm fuzzies from me need to wait until their case resolves on favorable terms. Many a client I’ve enjoyed working with will get treated to a celebratory meal upon leaving the courthouse. Until that point, I want my clients a little scared–sometimes a lot scared.

In any contested domestic litigation the potential for a bad, even disastrous, outcome exists until the case is over. Some responsibility for obtaining a good, and avoiding a disastrous, outcome lies with the attorney (which is why domestic litigants who treat attorneys as fungible get the results they deserve). However much of the responsibly for case outcomes lie with the litigants.

There are three common ways litigants can negatively affect their case outcomes. First, litigants can set unrealistic goals. Doing so means that much of their and their attorney’s efforts will be focused on the unproductive activity of pursuing such goals, when such efforts could have focused on pursuing realistic goals.

Second, such litigants can fail in the basic fact gathering that is part of the litigation process. While an attorney can guide a litigant as to what information needs to be gathered, the client is ultimately responsible for much of this fact gathering–especially if the client has a limited budget. I might know the type of witnesses who would be helpful to a client’s custody case but that client knows who such witnesses are and is better able to insure they cooperate in providing the court supporting information. I can help craft a client’s affidavit or testimony but the client knows the facts, and is generally in a better position to obtain the documents, that might help or hurt his case. Further this information needs to be timely provided. If a hearing is scheduled three weeks out, dumping this information on the attorney the day beforehand gives the attorney limited opportunity to craft that information into something coherent and persuasive. A client who actively cooperates in the basic fact gathering, and task completes by the deadline the attorney sets, greatly enables his or her attorney to achieve the best possible result.

Finally, litigants can engage in behaviors that actively undermine their goals. Custody clients with substance abuse concerns who don’t take their sobriety seriously are undermining their goals. A client seeking joint legal custody who creates unnecessary disputes over picayune issues is demonstrating to the court why joint custody won’t work. A supported spouse who commits adultery destroys her alimony claim.

Thus, in the early part of the litigation process competence is useful but confidence is not. There are two reasons confidence isn’t useful early in the litigation process. First, family court judges are unpredictable and will do surprising things. An attorney and client can work together to present the best case possible, try to frame the argument in a manner that might appeal to that particular judge, and try to settle matters where the certainly of a mildly favorable agreement outweighs the risk of seeking a more favorable result but obtaining a less favorable one. However certain issues need to be decided by a judge. Telling a client what a judge will do in a contested matter isn’t projecting confidence; it’s demonstrating hubris.

Second, projecting confidence early in the case allows the client to be less concerned about how his or her efforts and behavior can affect the outcome. I prefer my clients mildly scared until they have demonstrated the ability to task complete, set realistic goals, and avoid undermining behaviors. My confidence in a client tends to be substantially more outcome determinative than his or her confidence in me.

Fear of a bad outcome should prompt clients to set realistic goals, do the necessary work, and not engage in behaviors that undermine their goals. A sizable portion of my client base are folks who consulted with me, hired someone else, and came back to me when they realized they needed guidance and direction, not warm fuzzies, to litigate their case. Another sizable portion of my client base are folks who fire me over my bedside manner and then rehire me when they begin to appreciate my methods.

Cooperate with me to the point where we have achieved your goals and you will encounter a warm fuzzy Gregory Forman. Until that point, warm fuzzies are the opiates of domestic litigation.

One thought on Let’s save the warm fuzzies for the end of the case

  1. Rich Lynn says:

    “…warm fuzzies are the opiates of domestic litigation.”


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