As you’re well aware from seeing TV commercials and billboards, some lawyers pride themselves on being extremely aggressive, indicating that they solve legal issues by scaring the other side. There’s a famous Houston lawyer who refers to himself as “The Texas Hammer,” whose motto is, “You have rights – we enforce them with bare knuckles.” There’s a female lawyer in San Antonio whose billboard has a picture of her with the caption, “Ever argue with a woman?” Another female lawyer advertises wearing red boxing gloves and standing beside a bulldog. Some folks have developed an idea of a lawyer who is willing and able to throw the first punch as being the best kind of lawyer possible, and there are plenty of lawyers out there sending that message.
But there’s a whole other group of lawyers out there, myself among them, who believe that starting with a more cooperative approach serves our clients better in the long run. That doesn’t mean that they’re pushovers – when they need to go to court, they’re prepared, knowledgeable, trained in the law, and able to argue on behalf of their clients (and, from my experience, almost always more successful in getting the results our clients want than the bulldogs). These lawyers also consider practicing law to be a broader, more important, endeavor than just going to the courtroom and battling other lawyers, at our client’s expense.
In family law, I believe that the cooperative approach is particularly important because of the reality of divorce cases. There’s an oft-referenced statistic – an estimate, but an on-target one – that 95 percent of divorce cases are settled outside of the courtroom (so, you have to ask, “Why begin a fight when you’re going to end up in a settlement?”).
There are a number of reasons this happens. First of all, going the litigation route requires time – time to prepare for court, time to satisfy any demands in the discovery process, and time to wait for the docket to open up. For couples who don’t want their divorce to be a long drawn out process, there are better alternatives than litigation.
Also, especially for couples with children, they know they’ll have to interact long after the divorce is final. If the divorce goes to court, and one of the parties feels that he or she has “lost,” there will almost always be long, lingering effects on the couple’s post-divorce relationship.
And, finally, when couples have a say in their divorce decree, rather than having a judge come up with all of the rules of their post-divorce relationship, they have more sense of ownership. It’s something the couple has chosen in the interest of parting outside of the courtroom – it’s not something imposed on them by someone in a robe who only gets to know them for a matter of hours.
When a prospective client comes to me asking about divorce, I help him or her out by disclosing what kind of lawyer I am and what I think is the best approach for that person’s particular situation. For people looking into divorce and meeting with lawyers, I suggest some specific questions to help determine if the lawyer is a good fit. If you want to avoid litigation, you should ask if he or she believes your case can be resolved without litigation. If you’re interested in alternative dispute resolution, you should ask about the lawyer’s background and training – there are lawyers who claim to be collaborative who don’t having training or the demeanor for it, for instance, and there are lawyers who have been through Collaborative Law Institute of Texas trainings and have experience on collaborative teams.
If you feel that you need to litigate, you should still ask about the lawyer’s opinion about options to confirm that you want to litigate. There may be strategic reasons that litigation is bad for you in your case. You might also ask about prior cases similar to yours, to get a sense of the kind of fight you’re in for, how long of a fight you’re looking at, and what to expect at its conclusion. For many people, divorce litigation is the first time they’ll be in a courtroom for a reason other than a traffic ticket, and the most time they’ll ever be in court.
If that last sentence gave you pause, it should – litigation takes a serious commitment and a willingness to put compromise aside to risk winning or losing. You should make sure you’re litigating with a lawyer you trust, whether it’s your first option or your last resort. Even if you end up going to court, you’re better off with a lawyer who is looking for a reasonable way out for you before you get there, as no one can accurately predict what a judge will do in a particular fact situation. And for most people, there is a lot at stake in a divorce trial.