April 01, 2018

Practicing Family Law with Civility: Education Is a Key Component of Civility

Elise F. Buie

Welcome to the the second installment of GPSolo eReport 's series “Practicing Family Law with Civility.” This month’s we examine how to educate your client about the benefits of civility.


Civility—polite, courteous, professional, respectful behavior—saves money and, more importantly, promotes the psychological health and well-being of the professionals, the parents, and, most importantly of all, the children involved in the family law system. Being civil has nothing to do with being a pushover, either as a lawyer or a parent embroiled in a high-conflict divorce. Being civil means using emotional intelligence and logic to make sound strategic decisions rather than asserting emotionally charged positions and extreme statements. Being civil means disagreeing professionally while never resorting to personal attacks and name-calling. Knowing this, why would any client hire an attorney with a “bulldog” reputation for aggression and incivility? It is often said that a judge can tell a lot about litigants by the attorney they hire. The following tips will help you represent your clients civilly, thereby allowing you to provide quality, effective representation with civility, class, and grace.

Educate Clients on the Psychological Damage of Conflict

Educating clients about the negative impact of conflict on the children is often a great way to encourage civility. If a parent understands that the conflict itself, rather than the divorce, is the root cause of psychological damage in children, this parent will hopefully seek to lower the conflict, at least any conflict in front of the children. Conflict is further fueled by tribal warfare—bringing friends and family into the conflict. This type of behavior is counter-productive to solving the conflict at hand. Explain to clients that their declarations need not be a novella on each and every one of their soon-to-be ex’s faults. Keeping these declarations short, sweet, factual, and focused on the children’s well-being will be much more effective than a National Inquirer exposé. Encouraging clients to use their friends and family as practical family support—doing tasks such as babysitting kids, grocery shopping, and carpooling—will be much more helpful than “joining the war.” Encourage family and friends to take no sides, to support both parents by staying neutral. Explaining the reality of the divorce in terms of future life events is a very helpful way to manage your clients’ emotions and shape the tenor of the divorce. Talk to them about kindergarten, high school and college graduations, state football championships, dance recitals, hospital waiting rooms, swim meets, speech tournaments, music recitals, weddings, family funerals, birth of the first grandchild—no one wants to attend these family events while rage simmers barely beneath the surface.


Explain the Alternatives to the Litigation Depicted in the War of the Roses

Educate clients about the plethora of ways to resolve their family law issues short of costly litigation and trial, such as early mediation, collaborative law, and neutral experts. Clients can engage in early mediation or the collaborative process, both of which encourage them to create their own durable agreements about issues such as the kids’ residential schedule, how their finances will be divided, etc. Clients can also hire neutral experts such as a financial neutral or a parenting expert/coach or a child specialist. These neutrals allow the parties to pay for one expert who will gather all the relevant financial data and aid the couple in solving their joint problem jointly, rather than as adversaries. When the court decides, it’s a lose-lose situation—often both parties are unhappy, which can result in even further litigation. A child specialist is trained to help children through the transition of divorce, thereby helping parents make sound parenting decisions that align with the children’s developmental needs to promote security while gaining resiliency. Encouraging clients to keep their divorce out of the courts and a costly litigation process is often one of the best ways an attorney can represent their clients civilly.


Encourage Clients to Work with a Mental Health Professional

Educate your client about the benefits of mental health treatment to help them deal with the wide variety of feelings that accompany divorce, including guilt, fear, depression, grief, and anxiety. Often clients who work with a therapist to help them cope with the divorce learn valuable lessons about themselves and are empowered to see the divorce as an opportunity for growth rather than only the death of a marriage. Therapy can also be a great place for divorcing parents to discuss their concerns about the children and the impact the divorce might have on the children. I also remind my clients that their medical insurance will likely cover some of their therapy, thereby making it a less expensive option than getting “therapy” from their unqualified attorney.


Review E-mails/Texts Before They Are Sent—Teach BIFF

Educating clients on how to communicate in a neutral, businesslike manner as they learn to transition from sending hysterical hissy fits to reasonable requests is critical to building a successful co-parenting relationship. Teaching clients about their communication style and how it inadvertently might be triggering their ex is an important part of helping them navigate their future successfully. Bill Eddy’s “BIFF”—Brief, Informative, Friendly, Firm—is a great acronym to teach your clients as they learn to communicate with their ex in a new, businesslike manner, leaving unhelpful zingers and emotional swings out of the mix. Again, therapy is a great place to work through the high level of emotion that is perfectly normal during a divorce.


Be a High-Quality Attorney with Class

Lead by example. Follow the golden rule. Examine how you treat opposing counsel. Win over that particularly difficult opposing counsel with a great lunch.

Attorneys spend a lot of time educating their clients on how to behave so that they can move forward with less conflict, but often attorneys fail to take their own advice, as evidenced by the incivility often found in the bar. I am shocked by how rude some attorneys are in their daily communication. I have received e-mails from other attorneys that contain personal attacks, profanity, screaming (i.e., ALL CAPS), and condescension. These vitriolic e-mails are uncivil and unprofessional and, more importantly, counter-productive to quality representation. They increase legal fees unnecessarily, and they flame the conflict, thereby directly harming the family and children involved. I will not engage in such toxic communication, and I will figure out how to stop it if it is directed my way. Sometimes stopping this unprofessional communication involves a little humor while bluntly pointing out the incivility and its negative consequences. One thing I encourage my staff to remember is that any e-mail they send can find its way attached to a declaration or, worse yet, published on the front page of a newspaper. Therefore, all our professional communication needs to be both declaration and newspaper (social media) worthy. If all else fails, I resort to my Southern beginnings—when faced with rude opposing counsel, throw them off, show hospitality, “bless your heart.” I have invited many an uncivil opposing counsel to lunch. That way we can chat, laugh, get to know each other better, and inevitably break through some of that incivility simply by breaking bread or sharing some of my Southern faves—fried chicken, gumbo, or crawfish étouffée (luckily Seattle has a few good New Orleans’ restaurants; JuneBaby is awesome). I don’t know if smoked salmon creates the same level of civility as gumbo and crawfish étouffée. But, no matter what, my client’s interests and my client’s finances come ahead of any emotional taunting by an uncivil opposing counsel.

Attorneys have the ability to impact the level of civility or animosity in any case. I have never seen increased animosity result in a better outcome for the clients and families we serve. Therefore, be civil. Happy lawyering and bon appétit; laissez les bon temps rouler.

Reprinted with permission from Criminal Justice, Fall 2017 (32:3), at 15-17. ©2017 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forensic psychiatry, a specialized branch of medicine, deals with the interface of mental health and the law. Matters arise that encompass both the civil and criminal realms of law. When it comes to the latter, stakes are high and criminal defense attorneys are dedicated to a positive outcome for their client. This often entails hiring a forensic psychiatrist to offer expert opinions, and often testimony, regarding the matter at hand.


Elise F. Buie is the founder and principal of Elise Buie Family Law Group, PLLC (elisebuiefamilylaw.com). Her practice focuses on family law, dependency, and guardian ad litem work. She strives to help clients resolve disputes outside of court action and also educate clients on effective, respectful co-parenting skills.