1. Set Reasonable Expectations by Educating the Client
Clients need to know the likely outcomes of the custody and financial issues based on statute and case law. It is much easier for a client if they know what is likely to happen at the beginning of a case rather than being surprised in court when the judge makes a ruling. It is also more efficient to negotiate final settlements if the client knows the parameters of the possible outcomes at trial.
Client education should begin at the first meeting and should not end until the conclusion the case. Our job as their attorney sometimes requires follow-up on important issues that the client likely has no idea how to predict (e.g., opening a file with the Office of Child Support Enforcement so support payments can start or completing a Qualified Domestic Relations Order and what to expect when awards from a former spouse’s pension finally pay out).
Last, an educated client is easier to work with, and is more likely to return for assistance in the future. If clients recognize your advice as being valuable, worthwhile, and easy to follow, they are more likely to follow your lead and heed your advice. If you are in the practice of identifying yourself as a trusted advisor, then during representation of your clients is an important place to start.
2. Avoid Being Dramatic and “Over the Top”
It can be tempting to turn on the dramatics when drafting a pleading, especially with a set of facts that get you fired up. I rarely meet a client who isn’t on board with being aggressive in pleadings. But coaching clients to maintain a civilized tone in a family law matter can reduce conflict between the parties and enhance your client’s image before the court. Focus on the facts and the law. And thoroughly explain the situation to the court without too much dramatic flair, if any at all.
I like to remind clients that their pleadings are a matter of public record and that, potentially, anyone can read them in the future. Ask them if they really want their private business made public. Impress upon them that litigation is a process with a time and place for everything, including detailed storytelling (which is best done in the courtroom in front of the trier of fact, not in the pleadings).
In submitting statements to court, simply tell the court what the opposing party did without any unnecessary embellishments—let the facts speak for themselves. For example, it does no good to accuse someone of having “violent tendencies” when the person has never engaged in violent behavior. Courts are likely to find extreme statements (e.g., calling someone a “liar,” saying “he doesn’t really care about our children” or “she is a psychopath”) unpersuasive, particularly when there is no clear proof.
But what do you do when these kinds of statements are made about your client?
3. Lead by Example and Take the High Road
One of the more difficult aspects of family law arises when the opposing party or their attorney engages in high-conflict behavior (e.g., making insulting statements in court or in pleadings, involving the children, spewing misinformation to third parties, repeating unfounded accusations, providing details of indiscreet behavior to others, calling a person’s workplace, and/or not complying with court orders). Your client’s first reaction might be to demand that you make the opposing party or the other attorney stop, or perhaps to retaliate by engaging in the same sort of behavior. Instead, to reduce conflict, it is always better to advise a client to “take the high road.” Explain to them the options for court intervention (e.g., contempt actions, restraining orders, etc.) and aim to resolve the matter in a way that prevents the high-conflict behavior from escalating.
4. Explain and Encourage Alternatives
Explaining alternatives to trial can provide a huge sense of relief to your client, as it allows them to make informed choices. Often once the legal process starts, communication between the parties deteriorates, and the client has a hard time focusing on where they want to end up. Think back to Tip #1: Set reasonable expectations by educating the client.
Discuss the possibility of collaborative law or early mediation to resolve their family law disputes. The parties can also jointly hire or consult with neutral financial and/or parenting experts. But, keep in mind that if there has been domestic violence or other issues that would make a cooperative approach unworkable, then some options may not be advisable.
5. Limit Family Input
A family law attorney should always try to limit the involvement of family members or new romantic interests unless absolutely necessary. It is important for clients to understand that when we ask a family member to write an affidavit or testify in court for our client, we are likely jeopardizing that person’s future relationship with the other spouse or partner, and as a result their relationship with the children, particularly when the children are with the other spouse or partner.