Civility in the Practice of Law – Part 2


Last week I discussed the issue of civility between opposing lawyers and how the lack of civility can fuel a case – like throwing grease on a fire.  The same dynamic can exist between the opposing parties in a case (in other words, the divorcing spouses), but this is more understandable and often expected because it is the parties who are experiencing the end of a marriage, the ripping apart of their lives and their children’s lives.  While understandable and expected, intense levels of emotions between the parties are ultimately responsible for the financial and emotional devastation to the family – not the lawyers.

The Five Stages of Grief and Loss

Divorce is the death of a marriage and is the next greatest loss after death of a loved one.  In order to successfully move past a death or a divorce, it is imperative that each party successfully move through the five stages of grief and loss, which are: Denial, Anger, Bargaining, Sadness and Acceptance. The problem is that in divorce, so many people get stuck in the Anger stage and utilize the legal process to exert revenge on the other person.  This is also when unscrupulous lawyers take advantage of this stage by fueling litigation as opposed to helping their clients to move forward through the stages of grief and loss.  While it can take years to successfully accept the loss of a marriage, it is critical that each party should recognize that they are angry, sad or in denial, but that they not use the legal process solely to address any stage of grief without striving to accept the reality of divorce and moving on.  The reason is because fixating on the legal process is expensive and damaging to the family.  Hindsight always proves this to be true.

The Client is In Control

Lawyers should set the tone of the case and conduct the case itself according to the client’s wishes.  If a client does not want to spend their life’s savings on attorney’s fees, then a client has the right to demand that their lawyer find other means of resolving their case in the most efficient manner possible.  There are a lot of factors in determining how efficiently a case can be conducted, such as the issues, the opposing counsel, the opposing party, the client and the judge.  While there are always exceptions where litigation is necessary (domestic violence is a good example), the majority of cases do not require going to trial.

This is where there is an inherent conflict between a lawyer and client.  The lawyer makes a living by spending time on a case; clients save money when a lawyer spends less time on their matter.  There is obviously a fine balance between a client who desires a peaceful, streamlined approach to their case, and a lawyer’s duty to meet an acceptable standard of care for the client. In other words, a lawyer could possibly commit malpractice by failing to approach a case vigorously enough simply because the client wants to avoid hassles.  But the client’s wishes should prevail. If a client is angry and desires to exert their anger through litigation, a lawyer will follow suit; a client who does not want this should express such a wish to his or her lawyer.  The client then should work through their anger (and continue to move through the stages of grief) using other means, such as consulting a therapist.  Clients can control the tone and civility of the divorce, if they so choose.

The Importance of Controlling Anger

It is always amazing to me to think that the parties who seek to exert so much revenge and therefore damage during the divorce were once in love with each other.  They did not always hate each other; in fact, they used to share the same goal of building wealth and having a happy and healthy family life.  While no doubt changes took place which led them to be unhappy and want to end their marriage, why would one or both parties desire to destroy their wealth and their children’s lives beyond the damage which will occur as a result of the divorce itself?  This is something I have never come to understand.  Every day I see people let their anger take over their decision-making processes, which results in damage which often cannot be repaired.

The Damage

The lack of civility between the parties in divorce, as well as between the lawyers, will no doubt damage the parties financially.  Fighting is expensive, but the consequences might be repaired over time through earning and saving more and spending less. What is often not repaired is the damage to the children and to the parties’ own emotional and psychological well-being.  Most experts will tell you that it is not the divorce itself that is most damaging to the family, it is the level of conflict between the parties.  When the parties consciously choose the path of civility, it offers the best chance to reduce the conflict and the damage resulting from the divorce.