I wrote a post a while back captioned “Civilized Brawling.” In it, I said, “family law is not suited for litigation primarily because the parties must continue to have an ongoing relationship, sometimes for many, many years. It can be hard, impossible even, to rebuild a relationship that is shattered in a courtroom.” Boy howdy have I witnessed the brutal truth of this statement. I’ve spent the last month in a series of trials. The last one lasted almost a week, which is a long family law trial in my jurisdiction. Our days were long; we started early and went late. Everyone was stressed, the lawyers, litigants, witnesses, judge, family & friends in the gallery. Even the courtroom clerk and bailiff, I think. It was indeed a “civilized brawl.” There were two parents with polar opposite views and deep, deep wounds over events from their marriage. These wounds have festered and have carried over well after their divorce. This hearing did nothing but open up those wounds since we opened them right back up, gouged deeper, and laid blame.
As I have moved from a young gun to a more mature litigator,
it is no longer lost on me how important it is to strike some balance in a
family law courtroom. Cross examinations can (and often should) be rough and vigorous. Same for summations and other argument. On the other hand, I never lose sight of the fact these are families, and while I get to pack my boxes and go home, these folks have to co-exist forever. So, even after a sometimes ferocious argument, I work purposefully to find a balance and to speak about strengths and favorable qualities about the adverse party.
As I left that courtroom at the end of the week, I was feeling raw and emotional. I did my job, and I did it well, but I feel regret about my part in doing permanent damage to the family dynamics. Because it happened. I worry this family may never recover from the harm that was done. During the hearing, each parent made frank and critically important admissions. The healing kind. Apologies.
Acceptance of responsibility. You could feel the emotion in the room. These were the building blocks of forgiveness.
Then the summations happened. I admit, my summation was long; it was pointed, personal, and tough – words sting. I can appreciate that the other parent may have felt battered. I spoke passionately about my client and parenting skill – and there was balance. Opposing counsel deployed a classic strategy: when your facts are bad, ignore them; instead, divert and attack a shiny object as loudly and stridently as possible. Many points argued by counsel had some legitimate basis – it was the heavy-handed, out of proportion, cruel, destructive delivery that, to me, was bad form. Not one time in his nearly hour long summation did he mention his own client. Nor did he address his client’s parenting capacity – not once. Not to extoll its virtues or to point out the strengths or minimize weaknesses. Not even to acknowledge the apologies and statements of regret for past mistakes. Instead, he viciously, maliciously, attacked and unnecessarily skinned and eviscerated my client. It was a Swiftboat smear. But he didn’t just attack the parent. He savagely attacked the stepparent and the grandparents. It was over-the-top destructive, and it was utterly unnecessary.
Litigants often need their day in court. They need to say particular things, even hurtful, mean things. Afterwards, often forgiveness occurs. If not forgiveness, acceptance and forward movement. I honestly believe family lawyers must recognize this unique dynamic and participate in the attempt to rebuild relationships. At the end of my long week in the courtroom, whatever good had been done, whatever healing had happened was lost. Entirely wiped out. I played a part in this. I will also try whatever I can to be a part of the repair.
Conflict does not begin in the courtroom – the litigants walk inside with it in their arms. The courtroom is a place for a dispute to be resolved, like it or not. Yet, I do not think a family law courtroom is like every other courtroom. I believe there is room for repair and mitigation while still being a zealous, fierce, advocate. Call me Pollyanna. Call me naïve. Call me an optimist. I call me hopeful.
As I have moved from a young gun to a more mature litigator,
it is no longer lost on me how important it is to strike some balance in a
family law courtroom. Cross examinations can (and often should) be rough and vigorous. Same for summations and other argument. On the other hand, I never lose sight of the fact these are families, and while I get to pack my boxes and go home, these folks have to co-exist forever. So, even after a sometimes ferocious argument, I work purposefully to find a balance and to speak about strengths and favorable qualities about the adverse party.
As I left that courtroom at the end of the week, I was feeling raw and emotional. I did my job, and I did it well, but I feel regret about my part in doing permanent damage to the family dynamics. Because it happened. I worry this family may never recover from the harm that was done. During the hearing, each parent made frank and critically important admissions. The healing kind. Apologies.
Acceptance of responsibility. You could feel the emotion in the room. These were the building blocks of forgiveness.
Then the summations happened. I admit, my summation was long; it was pointed, personal, and tough – words sting. I can appreciate that the other parent may have felt battered. I spoke passionately about my client and parenting skill – and there was balance. Opposing counsel deployed a classic strategy: when your facts are bad, ignore them; instead, divert and attack a shiny object as loudly and stridently as possible. Many points argued by counsel had some legitimate basis – it was the heavy-handed, out of proportion, cruel, destructive delivery that, to me, was bad form. Not one time in his nearly hour long summation did he mention his own client. Nor did he address his client’s parenting capacity – not once. Not to extoll its virtues or to point out the strengths or minimize weaknesses. Not even to acknowledge the apologies and statements of regret for past mistakes. Instead, he viciously, maliciously, attacked and unnecessarily skinned and eviscerated my client. It was a Swiftboat smear. But he didn’t just attack the parent. He savagely attacked the stepparent and the grandparents. It was over-the-top destructive, and it was utterly unnecessary.
Litigants often need their day in court. They need to say particular things, even hurtful, mean things. Afterwards, often forgiveness occurs. If not forgiveness, acceptance and forward movement. I honestly believe family lawyers must recognize this unique dynamic and participate in the attempt to rebuild relationships. At the end of my long week in the courtroom, whatever good had been done, whatever healing had happened was lost. Entirely wiped out. I played a part in this. I will also try whatever I can to be a part of the repair.
Conflict does not begin in the courtroom – the litigants walk inside with it in their arms. The courtroom is a place for a dispute to be resolved, like it or not. Yet, I do not think a family law courtroom is like every other courtroom. I believe there is room for repair and mitigation while still being a zealous, fierce, advocate. Call me Pollyanna. Call me naïve. Call me an optimist. I call me hopeful.