The article below was written by Bill Eddy, a San Diego mediator, counselor and attorney who writes extensively on family law and personality types in high conflict cases. I encourage you to review his website at billeddy.com to see his other articles and books. Bill is also a founder of the High Conflict Institute High Conflict Institute that provides training on high conflict personalities in family law cases.
Choosing a Family Law Attorney
Whether choosing an attorney to represent you in court, to negotiate an out-of-court divorce or to advise you while you go through mediation, it is helpful to know what kind of attorney you are seeking. The following is my non-scientific identification of three basic types of family law attorneys. They address the same issues of parenting plans, support, and property division, but advocate for their clients very differently.
“ADVERSARIES at Law”
Adversaries focus their attention on the judge. They treat each issue as a win-lose contest, with the goal of winning the most at court hearings. Time is spent primarily preparing for court, waiting at court and presenting (“arguing”) the case.
The methods are adversarial from the start. The focus is on gathering negative evidence about the other party — because negative usually weighs more in the adversarial process. Subpenas are often issued, depositions taken, and other forms of “discovery” pursued. Intimidation tactics are common.
Adversaries minimize contact with the other attorney (or party without an attorney), since the judge is the only one who matters. They can be charming–or hostile and deceitful –to win a point.
The client appears to be a minor part of the process, since the focus is court and preparing for court. Client information may be obtained and used without question. Clients seem minimally counseled about the law, how to help themselves, or how to look at their own behavior. Clients primarily meet with support staff and appear at court. Adversaries generally do not encourage mediation or negotiation, nor work with clients as consultants–although some will if asked.
Adversaries cost the most, because court takes so much time–preparing documents, numerous hearings, and waiting around. The more issues taken to court, the higher the cost.
“PROBLEM-SOLVERS at Law”
The focus of attention for Problem-Solvers is solving legal problems with legal standards. Hearings may be set at court, but attempts are made to settle issues -often at court, before the hearing.
First, enough information is gathered to file for a hearing or trial. There may be subpenas, depositions, and other discovery, but often there is not at this stage.
Secondly, there is an effort to negotiate with the other attorney (or party without an attorney) and attempts made to settle issues along the standard laws and guidelines — with give and take.
Third, if negotiation efforts fail, then discovery may be pursued and the process becomes adversarial. Yet Problem-Solvers can remain generally friendly.
Problem-Solvers may educate their clients about the legal standards and communicate with them more than Adversaries. They may support the use of mediation or consultation, but usually do not suggest these themselves. Sometimes they may act as consulting attorneys.
In most cases, Problem-Solvers cost less than Adversaries because they settle many issues without a hearing. However, they can cost as much as Adversaries if negotiations fail and the adversarial process is pursued.
“COUNSELORS at Law”
The focus of attention is on the client. The client is provided with substantial information to help the client make his or her own decisions and stay out of court as much as possible.
Counselors educate their clients on how to help themselves handle the legal problems and personal problems related to divorce. Mediation or negotiation is encouraged. Family court is used as needed–especially in cases of abuse.
The first step is giving the client legal, financial, and mental health information. The next step is initiating negotiations with the other party or their attorney–similar to Problem-Solvers, but out of court. The Counselor’s primary role is as an advisor or negotiator, with the client making most decisions.
Counselors use mental health knowledge to help their clients –and to prepare the case for court when necessary. At court, they emphasize counseling and consequences (such as sanctions) to change long-term behavior. In some cases, they may obtain protective court orders for the client. Depositions, discovery and evaluations may be obtained, to treat the underlying psychosocial problems for everyone’s long-term benefit — not just to “win.”
Counselors generally cost the least, because they help clients form agreements out of court. However, when they have to go to court, the cost goes up — depending on the type of attorney the other spouse has chosen.