Article from The Mississippi Lawyer Magazine, July-September, 2009

The Constructive Divorce

By Mark A. Chinn

There is a need for a complete review of how we are handling litigation in general and divorce cases in particular. It is my opinion, after 31 years of practice, that law practice has taken a terrible turn away from serving clients’ needs and serving as true counselors for clients. The change that is called for lies in alternative dispute resolution such as mediation, collaborative law, and arbitration. The change also lies in a complete revision of the way we treat people and handle situations in the litigation environment.

Family law cases involve families. This means that the handling of the family law case impacts lives. And the lives are not just impacted for a certain situation, they are impacted for the rest of their lives. When children are involved, the impact is obvious. The divorcing couple faces a lifetime of having to work with each other as they care for their children. There are also an infinite number of life time events, such as birthdays, holidays, boyfriends and girlfriends, sports and other activities, graduations, marriages, and grandchildren, that are there to be shared and enjoyed. In light of this tremendous impact on lives, family lawyers have a unique and particular responsibility to look for ways to make the family law case resolve in a constructive manner.

The command to settle cases is as old as the Bible verse which commands us: “As you go with your accuser before the magistrate, make an effort to settle with him on the way, lest he drag you to the judge, and the judge hand you over to the officer, and the officer put you in prison.” Luke 12:57-59 and Matthew 5:25–26. Abraham Lincoln, known by many as one of the finest trial lawyers of his time, is said to have admonished lawyers to settle cases by saying, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser: in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln’s Notes for a Law Lecture, cited in, “President’s Message” ABA Journal, February, 09, p. 11.

Changing the Viewpoint

The first step for lawyers in this process is to change their viewpoint about the law and their role. Have you ever had a client ask you, “What’s your won-lost record against that attorney?” Or, “What is your won-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.” However, any experienced lawyer, such as President Lincoln, knows that cases, particularly family law cases, are never “won or lost.”

Family lawyers practice in courts of “equity.” The family law judge does not generally consider himself or herself to be bound by law or procedure, but by fairness. This means that the lawyer who is able to seize a procedural advantage over his opponent may be thwarted by a judge who is bound to ultimately “do right” by the parties and children involved. This means that no matter how strong a case an attorney might build for his client, he may still see the Judge refuse to accept the position if the Judge concludes it will lead to a result which is fundamentally unfair. Finally, it must always be remembered that even 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.

Mediation
An obvious tool for settling disputes without unnecessary litigation is mediation. I made a change toward moving my cases to mediation almost ten years ago. I observed that our standard procedure was to file a lawsuit, conduct discovery, and then get down to the trial date, only to have the Judge force a settlement at the courthouse on the day of trial. This seems to be a waste of resources and lives. Mediation serves as a “mini trial date” to force the lawyers and the parties to sit down and work on the case. The mediator plays a role of making each party see the pros and cons of his or her position. The mediators can help lawyers show their own clients the unreasonableness of a position while preserving the lawyer’s relationship with his client.
Experience shows that even the most complicated of financial cases, or the toughest of custody battles can be resolved in a single day of mediation. It has been said that, on a National basis, 85% of cases which are mediated are settled.

Collaborative Law
Collaborative law has emerged in several states. In collaborative law, the lawyers sign an agreement not to litigate, but to settle the case. The lawyers look for ways to resolve disputes in all aspects of the case through negotiation and mediation and by agreeing to jointly hire appraisers, custody evaluators, and other experts. This saves time, money and loss of quality life time for clients. See: Collaborative Law, Achieving Effective Resolutions in Divorce Without Litigation, published by the American Bar Association Family Law Section (2d Ed. 2008)

Handle Family Law Cases “collaboratively”
Mediation and collaborative law can be combined to create a technique I call, “handling cases collaboratively.” Although collaborative law is not practiced in Mississippi, its concepts can be combined with mediation to obtain quick and constructive resolutions for client. Listed below are some of the tools and techniques.
Free Exchange of Information. While there are many times when sworn answers are necessary to conduct “due diligence,” true civil handling of the case involves attorneys making full disclosure without formal discovery. This is similar to the Federal Court’s requirement of “full disclosure.”
Exchange Your Evidence and Proof. There may be times when it is advantageous to withhold evidence or arguments, but, most of the time, withholding evidence or arguments creates risk and extends the case unnecessarily. Every time a lawyer attempts to withhold something from opposing counsel or conceal some evidence in the interest of surprise, they run the risk that they will not be permitted to use the evidence for failure to disclose. Disclosure also puts the other side at ease and makes them less anxious about their case. This promotes creates a favorable environment for settlement.
Scheduling. Life is short and law practice is hard enough without attorneys needlessly inflicting inconvenience on each other. Attorneys should band together and make sure that they are considerate to each other in scheduling. Call opposing counsel before scheduling anything, unless it would be stupid to do so. If they are known to be difficult, schedule or notice the matter and send a letter saying you will reschedule if needed, but only to a date which is earlier or similar in time.
Use Joint Experts. Lawyers who do not practice collaborative law, can still use the tools of the collaborative lawyer. These practices practices are less adversary and less expensive:

Create a joint asset list with opposing counsel for use by all parties. The fight should be over values and classification, not what goes on the list. When parties are working from one list, there is less confusion and a better platform for isolating issues.
Jointly employ the family CPA to develop the joint asset list for both parties to use. The CPA should note differences of opinion in values or classification of property.
Jointly employ experts, such as custody experts, valuation experts and CPA’s. If you or your client are uncomfortable turning an issue over to a joint expert, employ your own expert to consult with you on how to provide information to the expert and how to question his report when it comes out.

Mediate. Use mediation whenever you can. Knowing the proper timing for mediation is somewhat of an art, but there is almost never any downside to trying to mediate a case. In many cases, our firm attempts to schedule the mediation the very day we are hired. Mediation helps people preserve relationships and avoid unnecessary expense and delay. It also gives both parties a place to tell their story, which many people need.
To have an effective mediation, employ some of the following techniques:

Conduct a pre mediation meeting with opposing counsel and the mediator to discuss the potential issues and identify the information that each party needs to effectively mediate. Many mediations slowed or even wasted by parties appearing unprepared and using the mediation time to ask for information.
Prepare a mediation notebook for the mediator. Enclose a list of agreed matters and a list of matters in dispute, including the arguments of each party. Enclose an asset list, a spreadsheet showing the respective offers, and the law favoring your position.
Prepare a proposed agreement and send it to the mediator and opposing counsel.
Call opposing counsel in advance of the mediation and ask if there is anything they need to formulate their position.
Decline whenever possible to give an opening statement which attacks the other side.

Constructive Handling of Cases

Whether mediation or collaborative law is used or not, civil cases in general, and family law cases in particular, should be handled with extreme civility. Here are some simple tips for improving civility:

Never Retaliate. Whenever a lawyer does something mean, or sends a nasty letter, there is great temptation to retaliate. Where possible simply ignore nasty letters.
Never, Never, send a Nasty Letter. If you must send a “nasty letter,” give the other attorney a warning call, something like this, “Well Jim, your client has not been able to leave my client alone, despite my requests, so I am afraid I am going to have to send you a nasty letter. I hate to do it, but I feel like I must in order to protect my client. Do you think you could speak to your client and put an end to this?” This type of call allows you to make your record and your point, without alienating the other counsel.
Civility Committee. Whenever you feel you are about to send a “nasty communication,” assemble two trusted people to review the communication. This will prevent non productive or destructive communication. We call this the “civility committee.”
Talk to Opposing Counsel. When you find out another lawyer is involved in a case, or when you enter an appearance in a case, call the opposing counsel. It is also helpful to call opposing counsel before you file pleadings. Of course, there are times when you cannot give opposing counsel warning, but those times are very rare. When opposing counsel is prepared for what is about to happen, they are less likely to react negatively retaliate.
Cooperate with Opposing Counsel. Unless there is clear prejudice to your client, never schedule anything without courteous arrangements with opposing counsel.
Never Argue. Instead of arguing, respond positively: “Do you have some case law to support that position? If you do, please send it to me so I might reevaluate my position, as I certainly don’t want to mislead my client as to what the law is.”
Be Courteous. Always treat opposing counsel like a brother or sister in the practice of law. Treat them as though they may be a judge some day.
Personal Visits. At the beginning of a case, assemble as much information as you can, and make a personal visit to the opposing counsel at his or her office to go over the case and set a positive tone.
Sanctions. Rarely, if ever, ask for “Rule 11 Sanctions.” Lawyers have a habit of becoming outraged at the arguments or actions of their opponents and filing a motion for sanctions against the other side for a “frivolous argument.” Have you ever seen such sanctions awarded? The only thing the request will achieve is a counter motion for sanctions.

Conclusion

Life is short and we lawyers can be the architects of the lifestyle we lead. Let’s treat each other with courtesy and civility. Let’s use collaborative techniques and mediation to help our clients achieve rapid and constructive results. The better we do this, the better off society will be.

Bio: Mark A. Chinn is the author of How to Build and Manage a Family Law Practice which has just been published by the ABA Family Law and Law Practice Management Sections and The Constructive Divorce, published by the ABA GP Solo Section, both of which may be obtained by calling 1-800-285-2221, or by visiting the ABA web store at www.ababooks.org. The foregoing article contains excerpts and citations from those publications. Mark graduated from the University of Mississippi in 1978 and operates a three-lawyer firm dedicated to representing people in divorce. He is an AV rated lawyer. He is listed in Best Lawyers in America and in The Bar Register of Preeminent Lawyers, and Mid-South Super Lawyers, in the field of Family Law. Reply to Mark A. Chinn, P.O. Box 13483, Jackson, Ms. 39236, 1-888-477-4410 or e-mail at mark@chinnandassociates.com.