At the very beginning of any new domestic client relationship the attorney and client need to discuss the client’s goal, discuss the law related to each of these goals, and discuss the evidence that might be marshaled to achieve each goal.

For example, if a client has the goal of getting custody of the children, we might discuss the law on custody and then the client would explain the reasons he or she should get custody. Some of the reasons the client might provide might be legally insignificant–for example, “I am the mother” (assuming that fact isn’t contested) is insignificant if the client is trying to get custody from the father but much more significant if the client is trying to get custody from a third party.

Part of the discussion should weed out the insignificant and irrelevant factors and decide what facts to focus on. For each goal, the attorney and client should try to narrow the factors they are attempting to prove to achieve that goal to a few big things. Trying to achieve goals based upon the hope of proving a lot of small things is a high risk strategy that rarely succeeds.

As an example, a client trying to change custody might argue custody should change because the children are doing very poorly in school, the custodial parent isn’t addressing the educational issues, and this client is positioned to do so. This “basis” to change custody relies upon proving three facts and, when proven, has a good track record of leading to a change of custody. However the client who comes in wanting to change custody due to a litany of small complaints–the other parent is sometimes behind on getting the children’s dental appointments; the other parent doesn’t always promptly respond to that client’s questions about the children; the other parent has the child in a car seat designed for a slightly older child–presents the attorney with a much harder task.

Proving a lot of small things is typically not as successful as proving a few big things. This is especially true at temporary hearings. Often I will encounter affidavits for temporary hearings in which one party makes a litany of small complaints about the other party with no general theme and no analysis of how these many small things should compel the court to rule in that party’s favor. In contrast, affidavits that stick to a few big themes are much more persuasive.

Moreover, and literally from a mathematical standpoint, each additional fact one must prove to achieve one’s goal makes achieving that goal exponentially harder. If one has an 80% chance of convincing the court on each contested fact, one has about a 50% chance of going three-for-three on convincing the court of three contested facts, but only about a 25% chance of going six-for-six–and less than a 7% chance of going twelve-for-twelve.

This doesn’t mean that one shouldn’t try to introduce all non-cumulative evidence that substantially supports a client’s position on a contested issue. However, one should develop simple themes on why the client should prevail on each contested issue and develop and highlight evidence that supports that theme.

Death from a thousand paper cuts isn’t nearly as efficient as a shotgun blast to the head.

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.

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.

There’s a theory that our modern world offers us so little exposure to pathogens that our autoimmune systems overreact to things like pollen and peanuts, causing a massive increase in allergic reactions to relatively benign substances. On a level of culture I see something similar playing out with the human ability to tolerate risk. Evolved for an era in which predators lived among us and unknown humans often meant us harm, our flight-or-fight system overreacts to minor stressors. Just in my adulthood Americans have become much more risk adverse. Helicopter parenting is one symptom of this. The decline in Americans starting small businesses or relocating is another. Some even think that the reluctance of Millennials to marry or have children is a symptom of American’s increasing intolerance for risk.

In my practice this fear of risk often manifests itself in client anxiety. Anxiety is a normal reaction to the loss of control that litigation entails. I assume that as long as there have been attorney-client relationships, clients have always wanted their attorneys to assuage their anxiety over that uncertainty and loss of control. “Good” bedside manner requires attorneys to counsel clients that they shouldn’t worry and that everything will be fine. Accurate advise requires just the opposite–litigation involves risk and risk is anxiety provoking.

It’s been my experience in twenty-five years of practice that this anxiety is getting worse and many litigants are less able to handle the uncertainty and stress of litigation. Attorneys need to take a client’s tolerance for uncertainty and stress into consideration in settlement negotiations. One can think of any litigation as having a range of potential outcomes. When all parties to litigation are represented by competent counsel, the case will likely settle within the range of likely possible outcomes. However, within that range there is some variability–this is what makes litigation unsettling for many folks. Ironically the folks who handle such stress least well are those who do worse on the range of likely possible outcomes.

There’s two reasons for this. The first is those who are unconcerned with that risk won’t discount the value of the claim to avoid that risk. Imagine a simple scenario in which a litigant can flip a coin and get $100,000 if it lands tails but nothing if it lands heads. That litigant is also offered a sum of money to avoid the coin flip. Someone who truly isn’t bothered by risk will want $50,000 to forgo the coin flip. Anyone who is risk adverse will certainly accept less than $50,000. Someone truly bothered by risk will accept substantially less than $50,000 to avoid the risk of heads.

Further an anxious client is more likely to do poorly during the stress of trial. Anxious litigants are more likely to answer inaccurately during cross examination. Inaccurate testimony hurts one’s credibility with the factfinder. Further anxious clients often appear fidgety or “off” during court proceedings. The factfinder may confuse this nervousness with other, negative, attributes. This can have adverse consequents on the court’s ultimate decision.

For the purposes of settlement negotiations, an ideal client is one who can control his or her anxious feelings and has good tolerance for risk. For such clients one doesn’t need to discount the value of the claim in order to avoid trial. However not all clients meet this ideal. Clients with limited or no tolerance for risk need to understand that their feelings reduce the value of their case. They can either work on developing better control of their anxiety or understand that, in settlement negotiations, there is a cost to avoiding trial if the other party is less frightened.

Per wikipedia, during the Roman republic, the river Rubicon marked the boundary between the Roman province of Cisalpine Gaul to the north-west and Italy proper (controlled directly by Rome and its allies) to the south.

Governors of Roman provinces were appointed promagistrates with imperium (roughly, “right to command”) in one or more provinces. The governor then served as the general of the Roman army within the territory they ruled. Roman law specified that only the elected magistrates (consuls and praetors) could hold imperium within Italy. Any promagistrate who entered Italy at the head of his troops forfeited his imperium and was therefore no longer legally allowed to command troops.

Exercising impertium when forbidden by the law was a capital offence. Furthermore, obeying the commands of a general who did not legally possess imperium was a capital offence. If a general entered Italy in command of an army, both the general and his soldiers became outlaws and were automatically condemned to death. Generals were thus obliged to disband their armies before entering Italy.

In 49 BC, Julius Caesar led a single legion south over the Rubicon from Cisalpine Gaul to Italy to make his way to Rome. In doing so, he deliberately broke the law on imperium and made armed conflict inevitable. Caesar allegedly uttered the famous phrase alea iacta est (“the die has been cast”). The phrase “crossing the Rubicon” has survived to refer to any individual or group committing itself irrevocably to a risky or revolutionary course of action.

The metaphor of “crossing the Rubicon” has frequent application in counseling family law clients. There are certain actions a client can take that are highly risky and will have irrevocable consequences. Among the most common are seeking to place another parent in jail for violation of a court order, seeking to take custody away from a parent who is generally supportive of one’s relationship with the child(ren), or placing a father who voluntarily pays support on court-ordered child support. Taking any of these actions will irreparably damage co-parenting cooperation. Making allegations of serious immorality or financial dishonesty against the other party in domestic litigation will have similar irrevokable consequences.

This is not to suggest that one’s domestic clients should never “cross the Rubicon.” Nor am I suggesting one should never provide clients counsel that would have them do so. However, one should be mindful of litigation goals or strategies that will create an irrevokable rift between parties who either have children in common or once loved one another enough to be married. One should note this risk in providing counsel, and exercise caution in proceeding with such goals or strategies on less than overwhelming facts or without clear goals in mind (goals that cannot be achieved otherwise). “Crossing the Rubicon” is inherently risky. “Crossing” but failing to achieve one’s goals leaves the other side both vengeful and empowered.

It is extremely difficult for parties to have a good relationship with each other once one party has tried to put the other party in jail or accused the other party of some heinous act. Sometimes jail is the only way to get another party to behave reasonably and sometimes alleging (and proving) such heinous acts are necessary to protect one’s children or safeguard one’s rights. However one should not take such actions haphazardly. One should only “cross the Rubicon,” with mindfulness of how such actions will alter the parties’ dynamic, an strong (preferably overwhelming) chance of success, and with clear goals in mind that cannot be achieved otherwise. Mindlessly counseling clients to take actions that “cross the Rubicon” merely to demonstrate aggressiveness is bad lawyering.

The recent FBI search of the records of Michael Cohen, President Trump’s attorney, has raised issues of attorney-client privilege and the crime-fraud exception to that privilege. Attorney-client privilege is the client’s right (and the attorney’s obligation) to shield a client’s disclosures to the attorney and that attorney’s advice to the client from exposure to others absent the client’s consent. However this privilege does not extend to information a client provides an attorney to commit fraud or a crime and the advice the attorney provides to further the fraud or crime if the client then uses that advice to commit the fraud or crime. This waiver of attorney-client privilege was first recognized by the United States Supreme Court in Clark v. United States, 289 US 1 (1933).

Normally, in family court proceedings, I want my clients to be forthcoming with all relevant information about their case so that I can have a greater understanding of the facts and provide them better advice. However clients frequently try to hide information from the court or present false information to the court. Family law attorneys should be mindful of the situations in which this is likely to happen. Advice that furthers a fraud on the court not only loses the shield of attorney-client privilege, it also violates an attorney’s ethical duty of candor towards the tribunal and can lead to discipline. See South Carolina Rule of Professional Conduct 3.3(a)(3) (A“ lawyer shall not knowingly: … offer evidence that the lawyer knows to be false”).

There are a few common areas in which South Carolina family law clients seek advice that may further such fraud. One area is folks seeking to shorten the one-year waiting period for a no-fault divorce. Every so often someone will ask me if he or she can shorten the waiting period for divorce by falsely acknowledging adultery. Family law attorneys cannot advise such clients on how to falsely obtain a fault divorce. One can advice such potential clients to seek separate maintenance or to contact the attorney shortly before the year expires.

One of the areas where clients often attempt to engage in fraud is with financial declarations. Sometimes clients have hidden assets or unknown side-jobs. When such clients seek advice on how to fill out a financial declaration without disclosing these assets or income, an attorney cannot provide such advice. Further an attorney who is aware that the client has failed to disclose assets or income in a financial declaration cannot file that financial declaration with the court.

Another area where clients often attempt to engage in fraud is on the issue of substance abuse testing. Clients will sometimes indicate a fear of failing such tests and want to discuss the possibility of using products that alter urine or hair to create a false negative test. Again, an attorney cannot advice a client on the use of such products or knowingly provide the test results from an adulterated urine or hair sample as evidence of a clean test.

The final area where clients often attempt to engage in fraud is on the issue of adultery. While an attorney who unwittingly presents a false denial of the client’s adultery to the court does not engage in misconduct, an attorney who assists the client in falsely denying adultery does.

The desire to provide clients legal advice that furthers their goals can sometime conflict with a prohibition against providing advice that furthers fraud or crime. The duty of loyalty to the client does not encompass a duty to assist in fraud. Ironically, when clients are caught in such frauds on the court, they frequently accuse their attorney of advising them to commit the fraud–demonstrating a lack of reciprocal loyalty. Once informed by a client of a desire to commit fraud on the court, an attorney should not provide advice that furthers that fraud. Doing so removes attorney-client privilege and subjects that attorney to discipline.

A colleague, after watching a recent presentation I did on trial preparation, emailed me his appreciation. Part of his comment, “My favorite nugget: ask my client what question does he dread being asked on the stand.”

That idea was indeed a “nugget” in my presentation–something I mentioned briefly without elaborating. In my own trial preparation practice, I don’t uniformly ask clients this question. My colleague’s comment has me realizing that I should start.

In any attorney-client relationship one of the most difficult tasks is overcoming the client’s embarrassment to disclose information that could prevent that client from achieving his or her goals. Folks are naturally reluctant to discuss what shames them, but overcoming this reluctance if vital to understanding the weaknesses of a client’s case. Almost every attorney has a “war story” about a case that fell apart when the client was asked a question on cross examination that revealed information of which the attorney was completely ignorant. Asking the client during trial preparation what question(s) he or she dreads reduces the possibility of such shocks.

Assuming the client answers that question untruthfully, and the trial goes poorly when that client is asked a case-destroying question that the attorney and client are completely unprepared for, the attorney can note this inaccurate answer if the client indulges the post-trial blame game. However, assuming the client answers this question truthfully, that response can prompt two effective actions. First, if the information is so damaging that the client is unlikely to achieve his or her goals if the question is asked, this is a signal that goals need to be reduced and settlement options need to be pursued more vigorously.

More likely, the answer to this question will be something damaging but not fatal. The task then is to rehearse the answer. The goal is to answer the question truthfully and forthrightly but to limit the damage. If the answer is merely embarrassing, or involves some distant action of limited relevance, a short answer that does not include context should be sufficient. In these circumstances providing additional context may only serve to highlight unfavorable information. If the answer would disturb the fact finder, more explanation may be required.  Here, the task for the attorney and client is to develop that explanation. “It was not my best moment” or ‘it was not a moment I am proud of,” followed by an explanation of what the client learned from it can humanize the client and turn a negative into something that contains some small positive element.

There are some attorneys who try to win trials by ambush: ask the opposing party embarrassing questions and watch them lie and fluster. By preparing the client for such questions, one prevents opposing counsel from successfully employing this strategy. There is a tremendous satisfaction in watching opposing counsels’ faces when they ask such “gotcha” questions and get responses that actually help one’s client.

Recently I took over representation in a divorce case from a younger, less-experienced attorney. That attorney sought my advice on what I thought she should have done differently. Being the mentoring type, I suggested she drop by the next time she was in my neighborhood and we could discuss it. Thus we met last week to discuss her work.

In the midst of our discussion she made a comment that I suspect many lawyers would make about a client who had recently discharged them, “I worry she [the client] didn’t like me.” Since I didn’t think the client liked me either, I suspect she was correct. However I know she’d have been better off being indifferent to the matter.

Years ago my counselor told me that the moment a counselor began worrying about whether her patients liked her she stopped being an effective counselor. In any advice-giving profession the desire to be liked makes that professional’s ego an aspect of the relationship. And it is impossible to provide dispassionate advice when ego is involved.

I’m sometimes accused of being rude, abrasive, and blunt–in short, unlikeable. We all have our flaws and one of mine is a less-than-ideal bedside manner. However, while I strive not to be rude and abrasive–blunt is sometimes a useful way to get through to a client after less direct attempts have failed–I attribute the desire to be liked by clients to be an affliction of the newly licensed. Prospective clients often hire attorneys they “like” and newly licensed attorneys are happy for any new client. Thus, being likeable may appear vital to their ability to attract clients.

Being liked by a client can be a natural consequence of doing good work, treating the client with dignity, and helping the client achieve his or her goals. However, being liked by the client is not something that thoughtful experienced attorneys actually strive for. They know that striving to be liked by the client renders an attorney less effective because it causes that attorney to temper his or her advice.

Much good lawyering involves telling clients what they do not want to hear: your goals are not realistic; while you can do something, you are better off not doing it; what you are saying lacks credibility [and you either need to tell me the truth or provide me corroboration]; your actions are undermining your goals [and you either need to change your actions or reduce your goals]; you are not doing the work I need you to do to effectively represent you. Once an attorney starts worrying about whether the client likes him or her, that attorney is constrained from giving such advice. And once an attorney is constrained from giving such advice, the ability to achieve that client’s realistic goals is diminished.

Being liked is wonderful. Cognizance about being respectful and treating clients with dignity is wonderful. Worrying about being liked is professional malpractice.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Recent Blog Posts

The Folly of Fighting Child Protective Services after a Merits Finding

Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I

[ + ] Read More

Court of Appeals determines homosexual couples could not enter common law marriage prior to the Condon case

A July 1, 2020, Court of Appeals opinion in Swicegood v. Thomson determined that South Carolina code prohibited homosexual couples from forming the

[ + ] Read More

College related child care is not work-related child care for the purpose of setting child support

There are a number of South Carolina family court opinions that are of narrow relevance but of significant importance when relevant. Such cases

[ + ] Read More