| The traditional adversarial system
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| | However, the real change necessary to
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| continues to draw criticism when
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| | simplify and create an atmosphere of less
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| aggressively applied to family law cases.
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| | confrontation shall result from the
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| Apart from the inefficiencies,
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| | individual professionals taking
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| impracticalities and costs of such
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| | appropriate action - the Judge, the
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| approaches, the reasons for abandoning
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| | attorneys, the other expert
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| these poorly conceived methods of dispute
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| | professionals, such as mental health
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| resolution should be obvious:
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| | professionals and financial
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| 1. Combative fires tend to be fanned and
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| | professionals, called upon to assist one
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| magnified with each contested Court
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| | party, the other, or both parties.
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| proceeding, thereby creating the
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| | Each professional person coming into
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| potential for long-term conflict;
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| | contact with the parties in the family
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| 2. Negative emotions and feelings of the
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| | law "system" has a significant
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| parties are allowed to significantly
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| | opportunity to "assist" the party/client
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| impact the attorneys actions on behalf of
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| | patient, rather than to "advocate." The
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| their clients;
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| | goal of the family law professional
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| 3. The potential for professional
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| | should not be to represent his or her
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| ill-will between attorneys and
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| | clients interests blindly, but to be
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| professional experts is created, while
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| | mindful of the clients best interests in
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| heightening the potential for gross
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| | light of the entire familys long-term
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| animosity between attorneys and opposing
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| | interest, both financial and emotional.
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| parties.
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| | If children are involved, their interests
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| The litigation process influences the
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| | must be paramount. If there are financial
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| attorney to take every available
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| | issues, they must be approached with a
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| advantage for the client, put the clients
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| | sense of objectivity and fairness to both
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| case in the best possible light, not
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| | sides.
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| offer evidence that is harmful to the
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| | Most parties arrive in the family law
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| client (with some exceptions), and
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| | "system" via the divorce attorney. Some
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| challenge everything possible, in the
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| | persons will have contact with a mental
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| opponents case. The opposing attorney has
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| | health professional or clerical member.
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| the same job.
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| | Others will have discussions with their
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| Most attorneys in the adversarial process
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| | accountant, family physician or other
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| are so caught up with the clients
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| | trusted family friends. Yet, it is the
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| "cause," that the attorney can lose sight
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| | attorney who most often has the first
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| of any and all sense of objectivity,
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| | real opportunity to change the way the
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| which is required to analyze both sides
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| | system operates.
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| of an issue. Many attorneys are all too
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| | The first contact between the attorney
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| willing to believe the "emotional"
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| | and client is critical and will probably
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| version of the clients facts, and not
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| | set the parameters of the relationship
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| inclined to scrutinize the information
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| | between the attorney and client
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| for false or misleading claims.
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| | throughout the entire case. The attorney
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| The contested dissolution of marriage
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| | can easily take sides with the client,
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| case is a family disaster waiting to
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| | support the client in every way, and
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| happen. As difficult and bad as things
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| | begin planning a strategic attack on the
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| seem to be during the litigation of a
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| | other side at this beginning point. Or,
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| family law case, the real battle, the
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| | the attorney can sit back and listen to
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| real conflicts, are yet to be realized.
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| | the client (listening is, of course, an
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| After the Final Judgment is entered
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| | excellent communication technique). At
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| whereby a Judge determines contested
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| | some point, however, the attorney must
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| issues, if there are one or more minor
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| | ask some questions, explore the facts not
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| children or any ongoing financial support
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| | being volunteered by the client, and
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| matters or any other issues over which
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| | inform the client of reasonable
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| the Court has retained jurisdiction, an
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| | expectations notwithstanding the clients
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| odyssey of struggle and conflict will
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| | feelings, wishes and concerns.
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| surely ensue for as long as the Court has
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| | A problem-solving approach would include:
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| jurisdiction over the parties and subject
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| |
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| matters.
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| | 1) Assessing whether the client, in fact,
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| What can be done to avoid this
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| | needs an attorney at this point. Is the
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| "never-ending" conflict resulting from
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| | marriage really over? Is it realistic to
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| litigating family law issues? Probably
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| | consider saving the marriage?
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| nothing immediately, but over a period of
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| | 2) Counseling that children are not to be
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| time, changes can occur which will result
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| | "used" as pawns. Their best interests
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| in most of these kinds of issues not
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| | must be considered, which normally means
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| being litigated. However, change is slow
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| | regular, frequent contact with both
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| in the traditional legal arena where
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| | parents.
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| attorneys are trained and experienced in
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| | 3) Encouraging or discouraging
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| relying upon precedent and stare decisis.
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| | communication between the parties,
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| Significant changes in process are
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| | depending upon the relationship and
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| required; however, the professionals
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| | feelings of the parties toward each
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| practicing in the adversary system may be
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| | other.
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| resistant to change and unwilling to
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| | 4) Avoiding any action that will result
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| consider different and creative means in
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| | in antagonizing the other side or in
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| representing a family law client. Also,
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| | engendering distrust. Typically, an
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| such creative and innovative changes in
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| | attorneys letter articulating his or her
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| process may appear to be either unethical
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| | clients grievance or position may result
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| or in violation of the attorneys duties
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| | in additional ill-will and additional
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| to fully represent the client, thereby
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| | disagreement between the parties.
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| further delaying change.
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| | Consider picking up the telephone and
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| As time progresses, changes must occur in
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| | talking with the opposing lawyer first
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| the "system" which will result in a
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| | regarding sensitive and potentially
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| process which is more practical,
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| | confrontational issues.
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| simplified, less financially expensive,
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| | 5) Treating the other side with courtesy.
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| less time-consuming and less
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| | Try to overlook actions that will appear
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| confrontational. Moreover, changes are
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| | to be, or are, in fact, uncooperative or
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| occurring whereby legal procedural rules
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| | insulting. Instead of responding in a
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| in many states now require alternate
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| | like fashion, the attorney should start
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| dispute resolution at various stages of
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| | to attempt cooperation. Avoid emotional
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| litigation, as well as required financial
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| | reactions and deal with the factual
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| disclosure and supplemental disclosures
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| | issues logically.
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| periodically during litigation.
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