War and Roses - What Type of Lawyer to Hire?

I am not in the habit of making recommendations for non-divorce books on my blog, but in this case, I think it is worth making an exception. I recently finished listening to Malcom Gladwell’s most recent book, The Bomber Mafia. It tells the story of two men, Haywood Hansell and Curtis Lemay.

Both were commanders of bomber squadrons in World War II, and both had polar opposing views on how to conduct the operations needed to win the war. Hansell believed in highly precise, carefully target strikes to disable production and supplies to try and avoid unnecessary bloodshed. (For example, he sacrificed the lives of several airmen and lost several planes in an attempt to destroy ball bearing factories in Germany, based on the theory that the German war machine would stop with ball bearings.) Lemay ultimately espoused “area bombing,” which is a euphemism for bombing an area indiscriminately in hopes that the enemy will become demoralized and sue for peace. (When he realized that precision bombing was virtually impossible in Tokyo, he instead utilized fire bombing because it inflicted horrific losses on highly combustible Japanese construction.)

You may be asking yourself, “What in the world does this have to do with a blog about family law and divorces?” Stay with me and I’ll get there, I promise.

What makes this piece of history so interesting is that both men, despite widely divergent approaches, genuinely believed they were doing the most moral thing they could possibly do. Hansell believed that precision bombing would make the large scale, high casualty battles of World War I unnecessary. Lemay, on the other hand, believe that his tactics, while brutal and violent, would end the war in the shortest amount of time possible. In essence, he believed a war waged with utter ferocity would ultimately make for a shorter war. Having attempted Hansell’s precision methods with virtually no success in Europe, he truly believed his method was the best choice in a conflict where there simply was no such thing as a “good” choice.

Like the bombardiers of the 1940s, family law lawyers face an incredibly complex problem. Any divorce, even a relatively simple one, requires that several problems be solved. Short term and long term property arrangements have to be made. Child support has to be addressed. Multiple households have to be established. A residential schedule has to be determined. Within each of these clusters of problems is many smaller “sub-problems.” It is utterly predictable that there are a wide array of preferred strategies for dealing with these problems.

There are many people who believe, as Lemay did, that a ferocious conflict ultimately makes for a shorter and less destructive conflict. The rationale goes that if a party “asserts their will” aggressively and early on, future dealings will be made promptly and with appropriate awareness of how conflicts could play out in court. The “Lemay litigators” often talk about “setting hard boundaries.” They frequently will market themselves as “the aggressive attorney” or “a fighter” or “a bulldog.” Many walk away from conflicts that required hundreds of pages of briefing, thousands of dollars and expenses, and untold stress on clients believing they did the best work they possibly could because they remained aggressive.

The rationale often extends beyond single clients. These attorneys often believe that espousing this attitude, even in cases that may not strictly merit it, will help bolster their reputation and their “brand” as an attorney. The hope is that the maintained ferocity, while harmful to a particular client, will benefit several others in the long term.

Perhaps at the most profound level, many of the attorneys who adopt the Lemay method may simply believe that picking up the phone or trying to have dialogue is pointless. Like Lemay’s experiences with early and flawed precision bombing, these early experiences may have led many of these lawyers to conclude that diplomacy was, at best, an idealistic pipe dream.

It is easy to try and villainize the attorneys in the Lemay camp. I make a point not to. I have spoken with several of them at length, and the vast majority of them truly and passionately believe this is the best way to practice. In that sense, they are not different than the rest of us – trying to find solutions to an unspeakably complex problem.

I remember adopting many of these attitudes as a younger lawyer. Part of it was simply being twenty-five years old. Part of it was the environment I matriculated in – litigating criminal cases as a public defender. You are used to being outnumbered, out-resourced, and generally at a disadvantage. In such an environment, it can seem at times like ferocity is the only tool you have.

These days, I am definitely more on the Hansell side of the spectrum. I try to practice family law in such a way as to create as little collateral damage as possible.

So how does the Hansell method work in family law practice? The idea is that you have to look at a case strategically and assess where conflict is necessary and where it isn’t. In many cases, like Hansell and his theory about ball bearings, you have to find the one problem to solve that can actually solve many problems. (For example, if I obtain primary custody for my client, many of the corollary problems, such as possession of the marital home, child support, and payment of the bills tend to take care of themselves.) If you are committed to the Hansell method, you have to try the least destructive solutions (dialogue) in a meaningful way before shifting to the more destructive solutions (litigation). There is a deep commitment to not depleting the clients’ resources or creating enduring public conflict unless it is the only reasonable option.

In that sense, you are committing to more front-end work and expense (in the form of diplomacy) in hopes of avoiding harm (legal costs and conflict) on the back end. Of course, it does not always work. There are some cases that simply cannot be solved with diplomacy.

It would be easy to assume that Hansell lawyers are not skilled at conflict. That assumption is often incorrect. In assessing strategy, it is important to remember the parties who will decide the conflict if you take it to court: judges.

Judges are faced day in and day out with people who often fight over things that should be easy to solve. They watch families and children scarred by litigation, and this parade of human suffering makes them deeply, deeply frustrated. My experience (and something I have heard directly from many judges and commissioners) is that attempting to resolve things peacefully before court is the sine qua non of credibility for any party that appears in court.

There is an old adage in family law that the most reasonable person in the room is usually the one who wins. It’s an old adage because it is very reliably true. Concise correspondence outlining issues and no-nonsense solutions gives your position an extraordinary amount of strength because the Court sees you as part of the solution, and not part of the problem.

In this sense, your efforts out of court make you a much more powerful force when you get into court.

Another byproduct of the Hansell approach is that you really have to think your way through the case and know it well before you ever set foot in a courtroom. Dialogue forces you to be thoughtful and persuasive – two traits that are typically highly effective in courtrooms.

With all that said, I did not adopt the Hansell method for strategic reasons. The fundamental reason for my membership on “Team Hansell” is human one based on my experience and research.

In addition to divorces and custody action, I do lots of post-decree work. This means helping resolve problems that arise after the final orders are entered and the parties are divorced. Often, I get to talk to people several years after a trial.

What I have seen, again and again, is the long-ranging effects of a Lemay-style divorce. Predictably, the parents do not get over massive financial loss and public humiliation easily. In some instances, parties truly develop psychological disorders as a result of the experience. Even without mental illness, the bitterness stays between the parties and poisons all the interactions. Even simple exchanges over things like soccer practice contain barbs and venom.

As unfortunate as the impact on the parents is, the real tragedy I see in these post-decree matters is the impact on the children. I frequently tell parents that however perceptive they think their children are, they should double it and then they will be in the right ballpark. There is this illusion that children do not perceive this continued conflict between the parents and are not affected by it.

This is wrong. This is absolutely wrong.

Children know, children see the conflict, and they are caught in the middle of it. Imagine being a child in this situation. You know that your mom and dad had a fight about you several years ago. You know that you had something to do with it, but you’re not clear on what. You know that whatever it was, it is bad enough that they can’t even talk to each other at your soccer game. They have to talk about you on a special program that records everything. Your parents frequently talk with friends and family out of your earshot, obviously talking about the other party.

As a child, you rely on your parents to find threats and to protect you from them. Even though your mom or dad might not say anything, everything about their behavior makes clear that they view the other parent as a serious threat. Unlike the usual script, where the parent protects you from a serious threat, you have to go to the home of this “serious threat” every other weekend. You never feel safe. You never feel like you are at home, because the other parent exhibits the same behaviors. While the parents might get a few days away from the conflict, you never do because you are the object of the conflict.

You might have to be in a circumstance where, despite being eleven years old, you literally have to exhibit different personalities with mom and dad and play complicated loyalty games just to get the affection of your parents other kids would get as a matter of course. If you have never talked to someone who had to do this as a child, I would highly encourage you to speak with them about the experience. You would be amazed and how pervasive and far-reaching the harm is from this type of life.

I have seen how children cope with this sort of stress. There are a wide variety of harmful and self-destructive behaviors. Kids with severe anxiety and depression. Cutting. Suicidal ideation in a nine year-old. I’m not exaggerating – these are literally things I have had to deal with in my practice. For older kids, I have seen how it seriously impairs their ability to form attachments later in their life. As teens, they cannot maintain normal friendships or have dating relationships.

In my quest to try and understand this animal that is divorce, I have spoken to more therapists than I can remember about the collateral damage from a “Lemay divorce,” and their consensus is painfully obvious: the supposedly short conflict provided by this method actually creates a longer conflict in the years of “cold war” that follow.

In this sense, we have to remember that we are not comparing apples to apples. A divorce is not a violent conflict. It is not a battle. It is not a war between nations. Approaching it with the tactics of a soldier fundamentally misapprehends the nature of the thing. I only make the comparison the comparison between the two because it is a good illustration of how human beings solve problems and can be passionately committed to very different solutions.

Regardless of who you hire as your attorney, it is worth having these sort of “view from 10,000 feet” discussions with your lawyer. The thoughtfulness (or lack thereof) in the answer should tell you a lot about what to expect, and what type of problems you are willing to endure in the aftermath of the divorce. If you are going to entrust someone to solve some of the biggest problems in your life, there is a lot of wisdom in learning how they solve problems.

As always, I hope this helps.