Lawyer: The Divorce Caddy

Are you helping your client line up THEIR best option.. or YOURS?

My new job (well, part-time job) is a collaborative divorce blogger from Lethbridge, Alberta.

And part of that job entails getting up, having a coffee (or today, I'm having tea) and reading my Google Alerts to see what other people are saying about collaborative law.

And this morning I came across a somewhat critical blog by Gregory R. Nugent, a Washington D.C., and Maryland area family and divorce lawyer.

His commentary is relatively respectful of the collaborative process, but, overall, he suggests that it is a process which is perhaps being (to use his word) "foisted" upon clients who are inappropriate for the process, and he further suggests that the process is open for abuse by those who refuse to honestly disclose their financial affairs.

My response?

Firstly, no process, litigation or collaboration, should be "foisted" upon any client.  At our best, as divorce lawyers, when guiding a client to consider their process alternatives, we should consider ourselves "caddies" on a golf course. 

To begin with, you don't pull out your driver on the green, and you don't use your putter off of the tee box.  Not every situation is amenable to collaborative work.  Some cases don't require it because they are simple and straightforward.  A short put in other words.  Or maybe a small pitching wedge - perhaps brief mediation.  Other cases present themselves as long drive.  Where possibly the client feels they require the "driver" of the litigation process.

However - in the legal system, there are hazards all around us.  And if the fairway (no pun intended) is narrow, you may still be better off leaving the driver in your bag, if an errant effort may put you in a much more difficult situation than a more prudent, controlled effort. 

But - regardless - the bottom line is that we have many choices to present our clients, from "kitchen table" resolution, to mediation, to collaboration, to arbitration, to litigation.  And that choice, at the end of the day, is the client's.  Not the lawyers.  Our job is to equip them with the right tools, make suggestions as to why they may or may not want to use one process or the other, and then respect them enough to allow them latitude to choose what is best for them.

No foisting.

Secondly - respecting disclosure concerns - which are always a source of criticism for those who don't practice collaborative law (and Gregory Nugent, fairly, confesses he doesn't) I would offer these two comments.

To begin with - what makes litigators (and I continue to be a divorce litigator) consider that they confidently can assert they have received full disclosure?  If there is a shoe-box of cash under the bed, and the other party is willing to lie under oath, you will never know about that box of cash.  A long time ago, I concluded a litigation, after trial, and several years after my client (former client) disclosed that he, in fact, had a large herd of cattle in the U.S. that he had never disclosed and in fact, boldly, lied about.

So much for perfection in litigation.

But - to be fair - and I've had this argument at IACP conferences and on the Collaborative Listserv, we do not cease our discovery skills in collaborative process.  We do it kinder and always with respect - but that same curiosity that drives the discovery process should continue in collaboration.  You need to obtain full and adequate disclosure.  You need to ask questions to turn over the rocks (or the mattresses as the case may be) - and assure yourself that there appears to be full and complete disclosure.   The Alberta Court of Appeal in Webb v. Burkett affirms that obligation - as it should.

And if you aren't getting full disclosure, and if there is reticence and obfuscation - well, it may well be that you need to withdraw from the process to assure your client's interests are served.  However - my experience is those cases are, in fact, few and far between.  That when clients and their lawyers commit to being open and honest - in most cases, they are.

So - is the Collaborative Process perfect?  Nope.  Is it appropriate for each and every divorce?  Nope.

But while we can write an article, or perhaps a paper on the difficulties the collaborative process presents - and it is always evolving to the benefit of our clients - we can write volumes about the shortcomings of litigation as a perfect process choice.

Ask people who have gone through litigation.  "Did you have fun?"  "Was it quick?"  "Was the outcome perfect?"  "Was it cheap?"  "Did you feel in control?"  "Did it make it easier to parent with your former spouse?"  "Did competing experts work well?"  "Would you recommend it to your friends?"

Don't get me wrong.

I enjoy litigation.  I get paid good money to enter the gladiators arena to do battle in the courtroom.  And the adrenalin rush of a good cross-examination is truly a heady experience.  And there is some truth to that great speech by Vince Lombardi, which ends:

"...I firmly believe that any man's finest hour, the greatest fulfillment of all that he holds dear, is that moment when he has worked his heart out in a good cause and lies exhausted on the field of battle — victorious."

It's truly a heady experience to succeed at trial.

But, sadly, my sense is that it is an experience which provides a much greater benefit to us, as lawyers, than it typically does for our clients. 

So.

Go out and be a good caddy today.