Before Swinging the Ax - Things to Consider Before a Public Legal Conflict

Clients often come to me when they are stressed, frightened, angry, and deeply uncertain about their future as they face a divorce. In most instances, years or decades of a partner's transgressions and misdeeds are boiling to the surface. I have observed that many clients seem to want to take their circumstances, and turn them into a story with a "good guy" and a "bad guy," as opposed to two struggling human beings. There is a bone-deep desire to shout the other party's misdeeds (or the legal equivalent - write them in a pleading) so that people can bear witness to what a lousy human being the other person was, with the vague fantasy that the Court will join in this condemnation.

While filing a ton of motion documents with the Court and going "on the attack" in a divorce might feel good in the short term, it is important to temper those short term impulses with long term goals.

Often in the middle of a long speech my client is giving about the other party and their misdeeds, I will purposefully interrupt my client and ask me to tell them about a time they were publicly humiliated.

As you might imagine, this bizarre non-sequitur and super personal question cause a lot of cognitive dissonance. I do this purposefully because I need real honesty for this exercise, which means they cannot be ready for the question. Clients generally answer the question. I ask more and more detailed questions about that public humiliation. Usually I can start to see their physical reactions - their breathing becomes more rapid, they flush, the start to fidget with things.

When I see these signs, I ask my client, "How well do you remember being publicly humiliated?"

Inevitable answer: "Really well."

"Have you ever been able to forgive the person who did it?"

"No, I can't seem to do that."

"How many years has it been since this happened?"

Sometimes that answer goes as much as twenty or thirty years prior, with the client still having such strong emotion that they still physically react to the memory. It is right around this time I gently remind a client that if they have children, or friends in common, or own a business with the other party, the words they use will create a reaction like that for the rest of their lives.

This is to say nothing of the more practical consequences. Contrary to what many clients may believe, Court proceedings are generally open to the public, happen in front of the audience, and are available as public records. Whatever you write about the other party will be available to anyone with five minutes, curiosity, and an internet connection. This means employers, friends, business partners, and customers.

Here in the information age, it also means that it is entirely possible that children (especially older tech savvy ones) will find a way to get at these documents whether you want them to or not. (As you write documents for court, one exercise you can do to improve the quality of your pleadings is to imagine your children reading them. While this is something to be avoided at all costs, ask yourself what example you are setting to your children about how to have a conflict with someone?)

It is worth noting that even when you prevail in court, it is rarely emotionally satisfying. Commissioners and Judges do not view these cases in terms of "good guys and bad buys," but rather just human beings who they have to guide and protect with their rulings. Whatever outrage you have about what has occurred, it is highly unlikely a Court will share it. Going to court to seek some sort of emotional closure is generally a recipe for disaster.

The other problem with these claims made at the beginning of a case is that a client's information could be incomplete or worse, totally inaccurate. If later investigation reveals these things were wrong, they create risk for the speaker, and not the alleged wrong-doer. (The legal terms for this in custody battles are "intransigence" and "abusive use of conflict.")

A dear friend of mine once described young lawyers and agitated clients like people going to a playground blindfolded and swinging an ax in a crowd of children. The ax swingers are utterly unaware of the collateral damage they may cause, and the lives they may ruin, because they are only focused on short term goals and they are in the grip of powerful emotional impulses.

Good lawyers and good litigants are thoughtful and responsible with that ax.

Ask yourself if you / your lawyer have a good understanding of the relevant facts. Have you done everything you can to learn about the issue? Has your lawyer taken the time to pick up the phone and had a meaningful discussion before running off the court? Picking up a phone isn't terribly expensive, and talking is a lot cheaper than a full adversarial hearing. And if it avoids tension that will literally live between the parties for the rest of their lives? All the better.

You have to ask yourself if the damage you are about to cause is worth the goal you are seeking. Take some time to very vividly imagine yourself in the other party's shoes. Imagine where they are going to be when they get the pleadings. Imagine how they are going to react when they read them. Ask how your proposed course of action is going to impact them. Imagine the sleep loss, the fear about what is going to happen at work, the stress about the expense, the uncertainty about the result.

In some instances, conflict is absolutely necessary. The risk of harm clearly outweighs the inevitable collateral damage. There are people out there and there are issues out there that simply will not be resolved without someone in a black robe looking at everything and making a ruling.

If you are in that circumstance, you have my deepest sympathies. Hopefully you will be able to go into the conflict with a compassionate heart and with the confidence that there was no less harmful option for resolving the problem.

Good luck.