Perhaps because the legal process involves the resolution of conflict, and because conflict requires parties to be in opposition, folks involved in litigation reflexively believe it is necessary to attack the opposing party. In family court, where emotions run hot, such attacks can be particularly vehement. When fighting over a divorce, spouses believe they need to attack the other spouse to justify their demands. When fighting over children, parents believe they need to attack the other parent to achieve their goals.
Many times these litigants are correct–though they, and their attorneys, need to be careful that their allegations do not get so extreme that they are not believed and subject them to being found incredible at trial. However, there are two circumstances in which, at least to me, it appears to be counterproductive to attack the other party. Rarely do I see opposing parties and their counsel withhold their attack during these circumstances. Their mistake.
One such circumstances is when a marriage is dissolving and one spouse attempts to portray himself or herself as an innocent victim who doesn’t want the marriage to end. The problem with being an innocent victim is that one typically needs a guilty villain for contrast. Thus the estranged spouse is attacked for his or her varied and horrific failings.
And in doing this the “innocent” spouse has just handed the estranged spouse justification for leaving the marriage. “Look at how awful he [or she] thinks I am,” the estranged spouse is now able to say, “How can I be happy in a marriage with someone who thinks so poorly of me?” Often times, when I represent an unhappy spouse who simply wants out of a marriage, I lack strong evidence to justify my client’s unhappiness–until the other spouse unloads in his or her affidavits myriad vile accusations against my client, all the time exclaiming my client’s desire to end the marriage is inexplicable. I consider these affidavits to be gifts from a benevolent litigation deity. Suddenly my client’s reason for wanting to end the marriage is quite clear.
The other circumstance when it is counterproductive to attack the opposing party is when one’s client seeks liberal visitation but not physical custody. When one is simply seeking more time with a child, there is nothing to be gained from attacking the custodial parent. The court is not going to conclude that the custodial parent’s failings justify the other parent having more time with the child–especially when the other parent doesn’t believe the custodial parent is so bad that custody needs to be changed. Further, if the court perceives this is an argument involving two parents who cannot get along with each other, or support the other’s parenting, the court is going to be reluctant to further entangle these parents and give them additional things to fight over.
The best strategy when a client is seeking more visitation with, but not physical custody of, the child is to offer some praise of the custodial parent’s parenting but explain why the child will benefit from additional time with the client. The custodial parent is then left in an awkward position: attack the opposing party and potentially look like the unreasonable parent (especially if the attacks are picayune or flimsy) or forgo any attack on the other parent’s fitness while trying to explain why spending more time with that parent is not in the child’s best interests. This is a reason why, when seeking liberal visitation, a client might sometimes explicitly avoid seeking shared custody child support, as doing so will lead to the claim that the additional time is sought merely or primarily to reduce the client’s child support obligation.
The urge to attack the opposing party is almost part of attorney DNA. However, attorneys need to be cognizant when such attack are counterproductive to the client’s goals.
In February 2007, Erin K. Urquhart and I tried a week long case with custody of two teenage boys being the only substantial issue. The parties hated each others’ guts. Each party had been through several lawyers and we were on at least the third guardian. The case had been pending several years and at one point a judge gave both children to DSS. Most people who knew about the case throught that Erin and I had the weaker side and that our client, the mother, would most probably lose custody. The prior guardian was 100% for the father. The new guardian was 51% for the mother.
Erin and I were desparate. We decided we had nothing to lose with a daring new tactic. We told our client that she was to say nothing negative about her husband, that all of her testimony had to be positive. Erin handled the direct examination of our client, which took twenty-eight minutes.
It was my job to cross-examine the father and to make him look dreadful without appearing to be aggressive or hostile myself. It was a difficult assignment but the father was most cooperative.
We won one of the most satisfying cases of my career. In doing so, we learned a great lesson that most of the bar does not seem to understand–judges do not like parties who bicker. We have since made it a template for all contested domestic litigation. If the adverse party is guilty of adultery, our client does not testify about the adultery, but only about how good the marriage was before the adultery without any mention of the paramour or the events causing the separation.
This approach takes a lot more work because we must restrain our clients’ natural impulses and we must research the facts better to know “what buttons to push” with the adverse party. We find that we are getting better results in every case. Even the cases we lose are not nearly as bad as they would have been otherwise.
A corrolary is what York County lawyers refer to as the Lucy McDow Rule, “Judges hate lawyers who bicker.”
I recently spoke at a Hot Tips for Solo Practitioners where my topic was “Civility–A Winning Trial Strategy.” The premise is correct.
A great observation about how to win contested cases in court, but also inadvertently a primer on why court is such an awful place to stabilize families. I’ve been through a divorce–thank God mediated rather than litigated–and Job One was to make sure we could still get along and co-parent successfully. Isn’t THAT the main reason not to attack the ex?
I believe my county was the first in the country to encourage mediation over litigation whenever possible….I challenge anyone to tell me why that isn’t good public policy everywhere.