Do family law lawyers make conflict worse?
I was recently reading a book (that I mentioned in the articles I shared with you on Monday and Wednesday of this week as well), where the author, Greg Ellis, alleged that, in his high conflict divorce and custody case spanning over 5 years and costing in excess of a million dollars, family law attorneys thrived on the conflict, made it worse, and then just billed through the chaos.
To me, the allegations about family law lawyers felt unfair – but, obviously, I’m also a family law lawyer, so I may be too close to the situation to be objective. In his case, long before family law attorneys were involved, his wife (allegedly, I might add – I saw/read no proof) lied to California’s version of Child Protective Services (CPS) that he had said he was going to hurt their two children. A welfare check was performed, he was ‘detained’ by police, and faced an involuntary psych hold.
While he was in jail and on the psych hold, his wife (again, allegedly) hid their money, changed passwords to all their joint accounts, and did everything in her power to make sure that he wouldn’t have access to any of the parties’ resources.
That, if true, sounds to me like the conflict was fairly fully formed before family law attorneys became involved.
In fact, it has been my experience that, in the high conflict cases that I’ve seen, the conflicts come into the office fairly fully formed. It is an attorney’s job to flesh out the conflict, in order to separate the evidence, facts, witnesses, and exhibits from the fluff. People can say anything, but often going to court is about what you can prove. We do try to find the evidence that proves our client’s allegations, and disproves the opposing party’s – or, at least, makes them more implausible.
To that end, depending on the issues involved, litigation can involve drug tests – sometimes lots of them – psych evals, parenting capacity evaluations, forensic accounts, CPAs, employment experts, doctors, nurses, lactation consultants, therapists, teachers, principals, coaches, Guardians ad litem – and on and on and on. Complicated cases, especially cases where equitable distribution is complicated, where spousal support is an issue, or where custody and visitation is contested, might require more evidence, witnesses, experts, and evidence than uncomplicated cases, which costs money.
Bringing an expert to court, for example, is expensive. And, if you’ve had, say, a drug test or a parenting capacity evaluation or a psych eval done, you pay not only to have the actual test or evaluation done, but you pay to bring the ‘expert’ to court so that you can question and cross examine them on the results. You can’t just admit a report on it’s face; that’s hearsay. You (and the opposing party) have to have the chance to question and cross examine – and potentially discredit – the expert based on any issues with the report. We don’t just accept anything as gospel.
We also, obviously, sometimes have long standing relationships with the attorneys we oppose – good and bad. There are a limited number of good family law attorneys in any given area, and we see a lot of the same faces over and over. Sometimes, we’re good friends with opposing counsel. In other cases, though, we’re not. Hey, do you like everyone YOU work with? Some people get better by association; others, not so much. It’s just the way of the world.
Much like people in any other profession, too, we have good lawyers and bad lawyers. There are also good Guardians ad litem and bad Guardians ad litem; good judges, and bad judges. In our defense, though, there are also, like, really bad nuns. (I read an article not too long ago about a nun who had embezzled a ton of money from the school she was running.) There are bad teachers, bad doctors, bad bank tellers, bad mortgage lenders, bad hedge fund managers – basically, in every field, there are good and bad people.
There are cases that we get, with attorneys on the other side, that make us roll our eyes. That make us determined to win. That make us double check everything for signs of trickery. We’re only human. Lawyers, as a whole, are only human.
While I do think there are some of us who thrive on conflict, who love winning, and really sincerely enjoy being in court, for the most part I think lawyers fall somewhere in between. We’re just doing our job. If doing our job involves going to court, then fine. We’ll do what we have to do to uphold our ethical obligation to our client, which means doing our job ‘zealously’. We don’t love it or hate it, but its part of the job, and we accept it.
Are we just laughing our way all the way to the bank? In the book, the author’s lawyer drives away, at one point, in a chauffeured Bentley. Maybe that’s the way big shot family law lawyers do it in Hollywood – where the case in the book took place – but I don’t know any lawyers here with chauffeurs. Or Bentleys. Personally? I drive a minivan.
Sure, there’s money to be made in litigation. And it takes a lawyer to do it. But, in my experience, litigation involves a lot of instability and unpredictability. The dates pepper your calendar six months to a year or more in advance, making it difficult to plan and take vacations. Things then come off your calendar with very little notice, meaning that the fact that you rearranged whatever you had going on in order to accommodating the upcoming litigation, was time, energy, and blood pressure points completely wasted.
To a lawyer, who works on a retainer and charges an hourly rate, you earn as much in a case that settles, per hour, as you can in a case that is contested. There’s more work in a contested case, but if you don’t have as many contested cases, you’re free to take more uncontested cases – not even, necessarily, uncontested cases, but less high conflict cases.
It’s easy to imagine that lawyers are just living it up, enjoying the conflict, and doing nothing to contain it. Maybe Greg Ellis thinks we’re running around with cans of gasoline, which we routinely light on fire and enjoy the results, before driving off in a chauffeured luxury vehicle. I don’t find that to be the case; I know it’s not the case for me.
Do lawyers make things worse? I think things – in high conflict cases – are already pretty bad before lawyers get involved. And there’s no question that the actual act of litigation – obtaining evidence, finding experts, questioning and cross examining everyone involved – doesn’t make the conflict between the parties less contentious. It definitely stirs up resentments and builds mistrust. Especially among coparents, it’s one of the big reasons that I advocate doing whatever you can to settle your case, get an agreement in place, and work on rebuilding your relationship to whatever degree you can so that you can coparent together effectively.
It doesn’t seem accurate, to me, to blame the intensity of the conflict on the attorneys. To be sure, litigation doesn’t make it any better, or move it towards resolution. But litigation is generally a last ditch option, reserved for couples who won’t be reasonable and won’t resolve things any other way.
I don’t pretend to know all the issues in Greg Ellis’s case, or any other case where I haven’t been involved or able to look at all the documents. Greg Ellis certainly only provides the ones that are most convenient to the case that he makes in the book. I find that it’s difficult to understand the totality of a family law case without understanding what’s involved on both sides.
Litigation is tough. But it can also be avoided. And most family law attorneys would love to help you do just that.
For more information, to schedule an appointment, to request a copy of any of our four free books on divorce and custody in Virginia, or to get more information about one of our upcoming divorce seminars, visit our website at hoflaw.com or give us a call at 757-425-5200.