Thursday, July 22, 2010

Long Term Consequences

I've recently worked on a matter that highlights a critical difference in different firm's philosophies.

The matter was a modification action.  A modification is a post divorce action where one ex spouse claims that there has been a "material change in circumstances," so much so that whatever was ordered in the divorce, should now be changed.  A modification action is most often either a modification of child custody or a modification of child support.

This case was a modification of child support.  The opposing party contended that the parties' incomes had materially changed so that he should now pay less child support. 

As I worked through the basis of the opposing party's argument and evidence his case seemed piddly.  He had nothing much to argue about with very little reason to bring an action and very little likelihood of success.

As I worked with the client, learned the history of the parties and got down to the core issues, I figured out the motivation of the suit, and it wasn't financial.

In her divorce, my client had hired a rather infamous attorney who practice what I call scorched earth litigation.  No one survived his wrath in the courtroom.  His litigation style felt like the Harry Potter characters describe the dementors.  My client hired this fellow because she thought her soon to be ex was difficult and stubborn and needed an aggressive attorney to bring her divorce to a successful conclusion.  What she wanted was a firm hand.  What she got, apparently, was armegedon.

As my client expressed, you never knew what this attorney would say in the courtoom, but she quickly learned it wasn't going to be good.  She found herself cringing for her in laws and husband's friends as they endured this counsel's harsh, cruel onslaught. 

As she reports, her husband, now her ex, received a much worse result if he'd just been reasonable.  I submit, so did she.  For ever since the divorce, the ex has been constantly cantankerous, mean, vengeful, spiteful, and sometimes even wicked in his treatment of his ex wife, my client.

As I came to realize, the opposing party still felt brutalized by the divorce, by the scorched earth counsel.  The opposing party was vengeful allright.  He wanted my client's metaphoric blood and his thirst for vengeance seemed to grow stronger with each passing year.

This ex, this opposing party, was still battling through the beating he'd received in the courtroom. This man had become a bit of a monster, where as before the divorce he was just stupidly difficult.
Scorched earth can be a succesful strategy for attorneys.  We look tough; we act tough; we beat up the opposition and then we walk away.  At the end of the case whether its divorce, modifcation or contempt, we just walk away.  But it's our clients who live with the aftermath.  They can't walk away.  They can't escape the harm we've caused.  Good strategy for the attorney, bad strategy for the client.

Aggressive representation sounds serious; it sounds firm; it sounds like it commands respect.  But I've found that far more often than not, aggressive representation yields negative consequences for the client for years to come.  Parents, already torn assunder by the nature of divorce itself, become bitter enemies, ever more distrustful, never fully enjoying the moments with their children without looking over their shoulder with cynical eyes.  With the additional pain inflicted by scorched earth, or aggressive representation, the pain endures and grows.  The healing takes much, much longer, if it can ever occur at all.

Aggressive representation is unnecessary and counter productive.  If your position is true, if your cause is just, the truth will out.  Nastyness only clouds your merits.

In the matter I'm writing about, as his ex's new counsel, I worked toward getting the opposing party past that divorce trial and into the 21st Century.  While he was successful at harassing his ex a little longer just by filing his modification action, he wasn't successful at lowering his child support.  But, just as importantly, I helped moved this couple along a little bit further toward re-forming their relationship as good parents to their children.

Objectively and subjectively that's the right a result.  Those are long term consequences that parents can live with. Those are long term consequences I can espouse.

Michael Manely

1 comment:

  1. Yup. In practice and in life, I have always believed in the common observation that, "What goes 'round, comes 'round." The negative effects of the behavior of those who serve others, however, often visits itself upon those they serve. I'd be pleased if it were not so, because it does not serve justice.