Many people believe that an adversary legal system means that lawyers must fight with each other. People also believe that lawyers must be aggressive in order to be effective. The swaggering, loud and pugnacious lawyer is assumed to have an advantage in that he/she is assumed to be able to intimidate quieter lawyers. In truth all of this is utter baloney.
I am often posed this scenario by my clients: “Our lawyers are too buddy- buddy! Doesn’t that mean that my lawyer may get prejudiced by the other side?” The answer is no. Not only is your lawyer’s friendly relationship with your spouse’s lawyer not bad for you; it is clearly to your advantage.
Remember that almost all divorces are settled by negotiated settlement sometime prior to trial with not much more than one percent actually going to trial. So in reality, we have is a culture of settlement rather than one of trials. If that is so, what kinds of behaviors are conducive to the most efficient settlement process?
In the course of the thirty-two years of my career, I have observed hundreds of lawyers negotiate with each other. The loud threatening bully is the least effective type of negotiator. They take extreme positions that inhibit reasonable counter offers. They are unpleasant and condescending to their peers at the cost of a cooperative atmosphere. And the result is unnecessary drama, delayed meetings, and unnecessary impasse.
The same aggressive lawyer is also more likely to demand more documents in discovery and unreasonably refuse to provide information reasonably requested by the adversary. The tension over discovery just leads to more court hearings on motions to compel discovery at a significant cost to both parties. And much of the discovery that would be relevant to a trial is not necessary to settle the case. The aggressive noisy lawyer undoubtedly generates higher fees but there is no evidence at all that this approach produced better results for the client.
By contrast lawyers who like and respect each other have an easier working relationship. Because they trust each other, they are more likely to take each other’s word for things rather that demanding more formal discovery at greater cost. And because each assumes that they are going to negotiate a settlement, neither postures about trial and the case moves more easily to a negotiated solution. When lawyers like each other the divorce costs the clients less money and generally less emotional trauma. It is this model of lawyering that gave rise to the collaborative law movement which is just a name for what many lawyers have been doing for a long time. In fact, one of the consulting services I have frequently rendered to clients is to help them find a lawyer who works well with their spouse’s lawyer.
When you go to choose a lawyer keep this in mind: do not hire the one who is known for aggression and fighting. Look for the one who is respected by his/her peers but who settles most of their cases and gets along well with others.
Sam Margulies, Ph.D., J.D.
Sam Margulies, Ph.D., J.D., is one of the most experienced mediators in the United States. Since 1980, he has mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.
Author of several books on divorce, Sam Margulies is an empathetic and knowledgeable guide through the difficult journey of divorce. Residing in North Carolina but helping clients all over the world, contact Sam with your questions and to talk about your divorce.
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