How to choose the right family lawyer for you: the family lawyer’s perspective (Part 2)

In my last article I spoke about the importance of choosing a family lawyer with the required technical expertise and experience. Here, I talk about the need to appoint a family lawyer who, as well as having sound legal knowledge, recognises the human experience of going through a separation and has good people skills to help clients through the process itself.

Why is this so important?

In my experience, the nature of a case is so often influenced more by intangible human factors than legal issues per se. The nature of the relationship, the level of trust and communication between involved parties, their personalities, and their broader goals and fears ultimately determine a person’s experience of the process – including the time involved, expense and overall levels of stress.

Some cases might involve, say, complex businesses, investment properties and the financial involvement of in-laws, all ripe with potential for prolonged litigation. However, if there’s goodwill between parties, a lawyer should give balanced legal advice to assist their client to capitalise on this, rather than – as the stereotype suggests – wade in with a sledgehammer and add to the conflict.

There are also cases that should, in theory, be straightforward and find quick resolutions, for example, dividing equity in a home after a short relationship or working out the number of nights a child will spend with each parent.

However, these matters can be dangerous if there is little trust between them or if one party has a litigious lawyer that lacks nuance or a real understanding of the deeper needs of their client. If the dispute is not handled with care, the expense can quickly exceed a more “complex” legal case, take months (or years) longer, and destroy any form of working relationship between the parties.

Here are just two examples of areas that distinguish lawyers who have awareness of these issues from those who don’t.

1. If a client meets a lawyer for the first time and they have not already reached an agreement with their former partner, the right lawyer will gather information about the family dynamics as well as give an assessment of the client’s legal entitlements.

They will ask questions such as the nature of the communication with their former partner, their respective personalities and emotional states, and understanding, in the big picture sense, what is most important to them and what they value.

With some exceptions (e.g. in cases of urgency), they can then steer the client towards a pathway that helps them get the best outcome in the least acrimonious and cost-effective way. For example, mediation or (if there is no power imbalance) empowering the client to negotiate directly with their ex.

2. The right lawyer will give realistic and honest advice in a straight manner, and won’t just tell their clients what they think they want to hear. While that might be superficially appealing in the short-term, it usually ends up being a disservice in the long run.

In family law, neither party gets everything they ideally want and at some stage during a dispute they’ll each need to demonstrate some pragmatism or compromise, or face being on the wrong side of a court judgment.

In 2017, a Family Court judge delivered an infamous judgment on the culture of highly aggressive family law litigation, saying that lawyers were not employed to act as “postmen” to vent the anger and vitriol of their clients. Some of their communications had added fuel to the fire of conflict rather than comply with their duty to dampen it down. The right lawyer will therefore try to focus their client on what’s relevant and act as a buffer against any impulsive or emotionally-driven decisions.

This is also relevant to the negotiation strategy that a good lawyer will adopt.

For example, “attack the problem, not the person” is a well-known line in the book Getting To YES. Even in cases that end up in court, it’s the most effective method of achieving both a favourable outcome as well as preserving relationships. In litigation, the lawyer should build a strategy that is focused on the things that will actually influence the result. Judges are never impressed by trivial point-scoring and want to be addressed on the things that matter. Having a strong and clear plan ensures that clients are less susceptible to being side-tracked every time the other party does or says something that’s upsetting or offensive.

I hope you have enjoyed reading these articles. Feel free to contact me for a one hour preliminary consultation, at no charge for readers of The Australian Jewish News.

To contact Daniel Myers, Special Counsel and Mediator at Schetzer Papaleo Family Lawyers, call (03) 8602 2000 or email daniel@spfamilylawyers.com.au.

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