16 Years in the Trenches: Reflections From a 2009-Vintage Family Law Lawyer
I started practicing law the same year that the iPhone 3G came out, and everyone thought the economy was just taking a long weekend. A lot has changed — Zoom hearings, e-filing, the fact that associates now ask for “mental health days” instead of pretending they have the flu, just to name a few. One thing hasn’t changed: if we want the privilege of calling ourselves lawyers, we have to earn it every morning.
The public has given lawyers an extraordinary deal. It handed us a monopoly on justice, let us write the rules (mostly), and agreed to not regulate us the way it does other industries. In exchange, attorneys should be more than hired guns with better vocabulary. We must strive to be trustees — trustees of the system, trustees of our clients’ worst days and trustees of the idea that the law is bigger than any one of us.
Alexis de Tocqueville saw this coming two centuries ago: every right comes with a matching duty, and liberty that forgets that truth collapses into license.[1] My military clients put it more plainly when they tell me about their new orders to Bahrain: “Freedom isn’t free.”
What does the legal profession owe as its duty? The Rules of Professional Conduct are the minimum viable product. I currently serve on the Grievance Committee of the Tenth Judicial District Bar. Please trust me when I say that no one wants to end up having their case reviewed by this committee. The Rules of Professional Conduct are there to keep the worst actors from burning everything down. The State Bar can discipline the lesser lawyer. Only you can decide to become the greater one.
I’ve spent approximately a decade and a half practicing law, and I’ve seen what separates the lawyer everybody wants in their corner from the one who makes everyone reach for the ibuprofen. Here are my takeaways on the differences:
Control yourself
Family law can be emotional napalm. The only way to keep it from detonating the children, the finances, and your own reputation is to refuse — downright refuse — to fight dirty even when the other side hands you the match. Taking the high road isn’t being soft; it’s the only route that gets you home with your soul and your referral base intact. My law partner once had a lawyer scream at him for twenty minutes in the hallway of a courthouse. He was there covering my case! Imagine going to court, and your only job that day was to cover your law partner who was out with an unexpected illness. You certainly did not plan for the shouting you received, and you likely weren’t prepared to counter yell. What can you do? Well, he listened in stone silence until the lawyer ran out of things to scream about. After a pause, he quietly said “Are you finished?” The other lawyer, stunned by the stark contrast, admitted they were done. What I learned from this interaction is the importance of always taking the high road. Vinegar can be expensive; kindness is free.
In my legal experience, these types of interactions (thankfully) are not the norm. We have a wonderful bar. But perhaps a client will sometimes get emotional? What about the client’s relative or “special friend” who insists on coming to every meeting? As lawyers, we should be prepared for the worst interactions (at least if you handle family law). Planning allows us to set the tone. We can control our emotions because we have prepared and we plan to set the tone. We can say to ourselves, “I knew this would happen — I have been waiting to address this.” If we are ready and set the tone of our own emotions (as opposed to responding to the other emotional force, such as the screaming lawyer I mentioned), we can raise the bar.[2] You cannot control others, but you can control how you react.
No one is perfect. If you cannot control yourself at any given moment, have the courage to apologize. For example, I recently had to apologize to a client for being a bit delayed in my response. Rather than complaining, the client thanked me and asked me to move forward from there. In the long run, owning up is the only path. Sweeping it under the rug does not (and should not) work with your own client, opposing counsel, or the court.
Risk Management
Please advise your client about the risks in advance. Laying out realistic risks should be required. I have seen far, far too many cases where the client has an emotional reaction in mediation or court because they were not prepared for the possible outcomes. Prior to any court date or mediation, I urge each lawyer to discuss the risks, pros and cons, and the math on litigation costs. Does that mean we should say “Take this offer or my fees will bleed you dry”? That is probably too close to coercion in a Brooks Brothers suit, but a frank discussion about what going to court may mean, including fees, should be mandatory. This discussion should necessarily include the potential risks of the case and the positions within the case.
We’re all in this together
The lawyers I admire most all have the same quiet habit: they recognize a simple truth — we are all in this profession together. As a result, they give away time, money and skill, sometimes in quantities that would embarrass their billing software. Mentor the new associate. Take the occasional pro bono domestic violence. Coach the high-school mock trial team at 6:30 a.m. because some kids have parents who work two jobs. Giving back feels good in the moment and compounds like interest you never expected. Now, that said, I’m not advocating we say “yes” to everything. Lawyers need to beware of burnout and take proactive steps to avoid it. But for those not giving back to the community or who maybe cannot remember the last time they did, I urge you to pick one thing — just one thing — you enjoy and plug in. You may be surprised at what it can give you.
Remember what’s at stake
Family law sharpens all of this to a painful edge because the stakes can be flesh and blood. I’ve seen what happens when lawyers forget and use the children as leverage (or allow their client to do so), employ scorched-earth litigation tactics that cost more than either spouse could ever hope to receive, and more. I’ve also seen the opposite — two lawyers who trust each other enough to say on the phone, “Your client’s being unreasonable, but mine’s terrified of court; let’s find the landing spot.” When in doubt, pick up the phone or meet opposing counsel (here’s an idea — call them up and ask when you can go to meet them at their chosen location). Consider having a coffee or lunch meeting with opposing counsel, yet saving the case talk for the end. Ask them about their life, their practice, their children, challenges they are facing, interesting cases – anything but the actual case. After you’ve connected over coffee and lunch, that difficult case may just resolve itself in weeks instead of years.
Know your limits
If you do not know some area of the law, do not guess. I see all too often what I call “dabblers.” The case touches on a complex intersection of the law on trusts and law on divorce. If you do not know trust law, you should associate competent co-counsel. I cannot protect my client if I am not competent in every area the case involves. I had such a case with an out of state trust and felt it was necessary to get the advice of solid trust litigation counsel. If I was to sum this up in a short form: know what you know, and if you do not know it, don’t do it. Failure to follow this could easily lead to an unwanted call from your malpractice carrier. Unfortunately, our firm sees far too many malpractice cases in military family law — a treacherous no-man’s-land where federal law, military regulations, and state statutes collide like three rival armies fighting over the same patch of ground, leaving hidden mines for the unwary.
A final word
So, obviously, comply with the Rules of Professional Conduct. But I ask each of you to aim higher. Be the greater lawyer. If you do not know how, find a mentor. I found a mentor after I had been practicing for a decade, and it has made all the difference for me. Don’t you want to be the lawyer your first mentor would recognize as having professional integrity? Don’t you want to be the lawyer your future self won’t have to make excuses for? And don’t you want to be the lawyer who still believes this profession is worth the weight it puts on your shoulders? Earn it today and earn it again tomorrow.
*For comments or questions about this article, please contact Kris Hilscher at 919-832-8507 or [email protected].
[1] “Liberty cannot be established without morality, nor morality without faith; but they forget that liberty is not license, and that every privilege has its corresponding duty.” Alexis de Tocqueville, Democracy in America (1835), Vol. I, Ch. 15.
[2] If you are interested in more on this topic, I recommend seeking out Ryan Leak’s works. I learned this from him. I’m happy to share what I have — do feel free to reach out.