Thursday, December 17, 2009

Hiring A Family Law Attorney and The Art of War 1

DIVORCE LAW INDIANA published a post, Hiring a divorce lawyer: Rambo v. Mother Theresa,that I generally agree with but also with which I have some serious quibbles about. In particular, I have a problem with this paragraph and particularly one word in this paragraph:

In a study of attorneys, social psychologist Kennth Kressel found that divorce attorneys seem to fall primarily within two broad groups. He labled them the "advocates" and the "counselors". Some call these two approaches as the "Rambo" and the "Mother Theresa" approaches to divorce law.
The word troubling me is "primarily". My contracts professor had a category for these sort of words: weasel words. Since most of the original article depends on this dichotomy between litigator and counselor, I think this needs discussing as if "primarily" were not in that paragraph.

I think the lawyer must be adaptable to the type of case and client they have in front of them. In some cases litigating willy-nilly makes mountains out of molehills. I think everyone will agree that is wasteful. If you think you are better served by such a lawyer, then ask how this benefits you because there will be times (many times) during the course of a contested case that you will also need a counselor.

I think my New Albany colleagues recognize this point also:
Your personality and your situation will dicate the type of divorce attorney you feel comfortable hiring. Remember that about 50 percent in a recent study were unhappy with their attorneys. Basically the best divorce attorney is one who has a good deal of experience in contested divorces and who has knowledge of the court rules. You should avoid an attorney who never goes to court or one who wants to litigate everything without encouraging good-faith negotiations.
I came to the viewpoint I have from reading Sun Tzu's Art of War. I have written along these lines before with Divorce, Strategy and Sun Tzu. I also wrote on this in Thoughts on Strategy, Preventive Law, Rambo Lawyers and Sun Tzu that can be found on my Indiana Civl & Business Law Blog.

Others invoked The Art of War when discussing litigation. Deception and Settlement: The Application of Sun Tzu's Ancient Strategies of War to the Law which makes this point:
Sun Tzu advises against this purposeless destruction. Each of the steps taken in a lawsuit should have a goal of encouraging settlement, albeit on your terms. This goal should be at the forefront whenever discovery is taken, motions are filed, and meetings with the opposition are held. This may not assure that fees and costs will be limited. Rather, it means that when money must be spent, it should be to encourage resolution of the matter. If it does not, then one should consider choosing a more effective course.
Although not written from the standpoint of a family law case, I think the principles are easily transferred from a lawsuit to a family law case. With the point being that strategy needs to meet the needs of the case and of the client for a successful case. I read The importance of an attorney in child custody litigation from Divorce Indiana Bog and Maryland Divorce Legal Crier's Every Dog that Barks as implying this same point.

Family law does not lend itself well to total war. Sun Tzu did not favor total war - it ruined both sides of the conflict. I wonder if most people when thinking of litigation as war do not think of the conflict as total war. If so, I suggest following the link to total war and then look at your bank account and then consider what life will be like after the case is over. Here is an image to think of when thinking about total war. In cases with children, the effects of a total war stragety will go on for a very, very long time.

There needs a time for counseling and a time for fighting. I think counsel needs the capacity to do both.

I will finish this topic off tomorrow. Please come back for the finish.

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