I have authored a book called, The Constructive Divorce, published by the ABA and available at ababooks.org. Here are some brief hi-lights on changing the perspective on family law cases from "win/lose" to constructive resolution.
I have had many a client, "What’s your won-lost record against that attorney?" Or, "What is your one-loss record in custody trials?" Have you ever heard a lawyer talk about "winning" a divorce or custody case? The answer to all of these questions is probably, "yes."
I know that many times I get the feeling that opposing counsel is handling a case with me with the mind set that there is some great scoreboard in the sky which is going to tally how they did against me, as though we are involved in some competition for "victories." And this competition is a critical indicator of reputation and the getting of future business.
This use of game-like, competitive language for family law matters is unfortunate and leads to incivility in the resolution of matters. It also hinders constructive resolution of disputes. Here are some further reasons why a "win lose" mentality is counterproductive in family law matters.
FAMILY COURTS ARE OBLIGATED TO DO EQUITYFamily lawyers practice in courts which view themselves as courts of "equity." The family law judge does not consider himself to be bound by law or procedure, but by fairness.
THE APPELLATE COURT WILL CORRECT ITEven if a family lawyer is able to pull off a stunning "victory" in the trial court, there is a good chance the "victory" will be taken away by a higher court.
THE OTHER SIDE WON’T LET IT BEAnother adverse side effect of "victory" in court is retaliation by the other party. They will spend all of their energy and resources to "even the score."
Sometimes cases have to be tried and sometimes "you gotta do what ya gotta do" but the prevailing attitude should be to focus on a long term positive result to leave a family left standing even though there is no marriage.