The ‘Constructive Divorce’
New ABA book outlines strategies for civility when marriages break upBy Bill Ibelle Features editor
In his early years as a divorce lawyer, Mark Chinn modeled his litigation style on the U.S. Marines, Hall of Fame linebacker Dick Butkus and a Viking war party.
“I must confess that I have been guilty in the past of viewing litigation as a competition to be lost or won,” he writes in the prologue of his latest book, Constructive Divorce. “I have been guilty of viewing the adversary system as a license for ‘going after people.’ I have been guilty of viewing procedure as a dangerous weapon to be mastered and wielded on any unsuspecting foe.”
Chinn has since seen the light. But this isn’t a book about Chinn’s personal epiphany. It is a tight little volume (100 pages in all) that provides practical advice on how, by modifying their mindset, lawyers can better serve their clients’ long-term interests.
This requires a great deal of cooperation, and much of this book is devoted to the value of biting your tongue, refusing to let the other side bait you into a fight and weighing each potential action against its impact on the client’s ultimate goal.
Chinn – who has practiced law in Jackson, Miss., for nearly three decades – reminds lawyers that even if they achieve an overwhelming “victory” against the opposing spouse, the lopsided result will probably be “corrected” by an appeals court. This Pyrrhic victory accomplishes little and often engenders a burning sense of injustice that causes the “losing” spouse to dedicate his or her life to vengeance. This is not likely to result in a very pleasant post-married life for your client, according to Chinn.
So rather than treat divorce as a battle, Chinn urges his colleagues to create an atmosphere of trust and cooperation with opposing counsel (and between the opposing parties). Disclose everything, he urges. Cooperate on scheduling matters and refrain from dirty tricks such as canceling credit cards, shutting off the utilities, emptying bank accounts and serving the spouse at his or her work. If you do have to take action to protect financial assets, warn the opposing side and explain why you feel it necessary to do so.
“The truth is, dirty tricks rarely lead to an advantage for the perpetrator and almost always lead to ill will,” Chinn writes.
He also urges the parties to use joint financial experts whenever possible to reduce distrust. Above all, he says lawyers should resist the temptation to strut their legal muscle by litigating procedure.
“Every experienced lawyer knows there is rarely an advantage to be gained from outsmarting the other side procedurally,” he writes.
Take the high road
This is all nice in theory – but what if you offer an olive branch and the opposing attorney continues to act like an SOB?
Chinn ‘s advice is unequivocal: Do it anyway.
Never retaliate, he says. In fact, the most effective response is to act as if the Rambo tactics don’t bother you.
“Athletes understand the importance of not allowing the other team to dictate the way the game will be played,” Chinn writes. “The practice of law is no different. Stick to your game plan.”
The book does not argue that lawyers should let themselves become patsies, watching passively as opposing counsel kicks the daylights out of their client. The point, according to Chinn, is to keep your eye on the prize. Resist the urge to respond emotionally. Consider each response to provocation in terms of whether it will advance or hinder your client’s long-term goals.
It is also a lawyer’s job to get his client to think this way. It may produce a lot of temporary satisfaction to embarrass the other spouse at work, get him in trouble with the IRS or get him fired – but how does that help your client put together a stable financial or emotional life once the marriage is dissolved?
One of the most effective strategies, according to Chinn, is to learn what the opposing party really wants. He says it’s not unusual to find that behind all the legal acrimony, the opposing party wants something the lawyer’s client was willing to provide all along. Whether it is financial security or access to the kids, the key is to know what you are really fighting over as soon as possible.
“Bridge building takes work,” writes Chinn. “Lawyers have to work hard to understand the issues. They should strive to understand what is truly motivating each party to take their positions. Lawyers should probe deep enough to uncover the end result people truly desire.”
The same is true for opposing counsel. Chinn has found that opposing counsel is often so worried he is going to pull a fast one on them, that they try to get the upper hand through questionable tactics of their own.
“The greatest provocateur is fear,” writes Chinn. “When possible, act to alleviate your opponent’s fear. Assure them that you are not going to trouble them procedurally in any way that will unfairly prevent them from putting on their case.”
One of the most important duties of any family lawyer is to educate the client about what he or she can realistically expect from divorce litigation or mediation. For many clients, the primary goal is to be vindicated – to be told they were right and their spouse was wrong. They need to know that is not going to happen, says Chinn.
“People, including lawyers, often misconstrue the definition of the word ‘justice’ to imply that there is some universal truth that can be revealed and achieved in a courtroom,” he writes. “Lawyers and clients should understand that such a form of justice does not exist. Justice lies in the orderly resolution of disputes with certain protections.”
Chinn also notes a few tips on clients to avoid at all cost.
There is the “Box Carrier,” who arrives at your office with a pile of documents he is certain will prove beyond any debate that he has been grievously wronged. He will insist that you review this information in painstaking detail, and if you fail to agree with his assessment of its legal value, you will become the second object of his fury.
Chinn also strongly advises against representing “Mr. Principle.” This person will appear to be an upstanding sort of guy as he announces his determination to fight this case as “a matter of principle.”
“However, these people may be the most dangerous of all bridge burners,” writes Chinn. “Moreover, these people will ultimately turn on the lawyer for failing to meet their expectations. They will probably refuse to pay the bill at the conclusion – out of principle.”
There is also the “Take him down gal” and her male counterpart, the “Teach her a lesson she will never forget guy.” These people don’t want assistance, says Chinn, they want revenge.
“Trust me, these people will offer you a lot of cash, but turn it down,” Chinn writes. “They are bridge burners. And just as they want to teach their ex-spouse a lesson, they may some day want to teach you a lesson.”
The book concludes with several helpful appendices, including several letters demonstrating how to communicate potentially inflammatory information in a civil way, and a co-parenting letter used to help clients understand their continuing responsibility to work cooperatively as parents even after their marriage has been dissolved.
Overall, the book packs a great deal of sound advice into a very small package.Questions or comments can be directed to the features editor at: firstname.lastname@example.org.