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How to Select Your Family Law Attorney (And Who Not to Hire!)
An Interview with Attorney T.W. Arnold, III
Q. My friends and family are telling me that I need to hire the most aggressive attorney I can afford. Is this true?
A. No. It is not true. It may be the worst thing you can do. Here's why.
The model of dispute resolution that we were raised with is rooted in adversity and confrontation. This imagery is glorified by popular culture because it resonates with our deepest fears, and our romantic fantasies such as 'it is me against them' or 'if I had a champion, my way would prevail.' It is a self-focused view, concerned only with short term outcomes. It is self validating when you or your divorcing spouse believe it to be so; the perception guarantees the experience becomes what you expect.
The legal system assumes fact finding occurs through accusation and hostile cross-examination according to technical rules of evidence. Principles of fault, and therefore punishment, pervade our thinking especially in the context of marital dissolution and custody contests. No-fault divorce was first established in California and in the United States in 1970. There is a weight of history that characterizes divorce as immoral, or a failure of Will, or a sin. These views are part of our conditioned thinking, and still enter into the mix as they relate to child custody issues, support entitlements, and fiduciary duties. We are no-fault only in name. Lawyers and judges are sometimes not candid about this fact, which is unfortunate because the process is not therefore mindful.
The law in many ways treats marriage like a business contract. But we are not mass produced widgets. Widgets are not emotionally and romantically identified with other widgets. They don't live with the widget for years, share its hopes, dreams, and fears, and have children with it. Widgets don't have to get along other widgets for decades, they do not dance with dignity together at their children's weddings, and their sense of themselves isn't dependent upon a relationship with another widget.
Yet, the legal system and lawyers tend to treat you and your divorcing spouse as though you were widgets. The law lacks information and sensitivity to the consequences of the emotional attachments and entanglements that arise in relationships. The realities get ignored by lawyers and judges. The therapist community - generally the sanest leg of the stool - is only rarely invited in to assist, and usually then is commissioned to take sides rather than problem-solve.
It is the prevailing model of lawyering that contest and confrontation are viewed as the only, or at least the preferred method, of disentangling human affairs. This is unfortunate. We don't carve people in half, but the system acts as though we can. It ignores what people experience in the divorce process, and defines goals self-centeredly in terms of what each person wants - which is 'in argument' with what every other 'other' wants. This isn't healthy crisis resolution. It encourages failure.
When lawyers act upon our clients' deepest hurts and self-interested desires, when normal people are scripted to hire that junk yard dog to get what they think they want, need, or deserve all of us are doing violence to everyone around us. It is a lose, lose situation.
Q. Well, are you saying that I should give up? That I don't have rights that need to be protected?
A. No. Its just that couples facing divorce need to bring attention to bear on what it is they really want, as early on in the process as possible. What they think they want typically derives from how they feel as a result of disorienting and traumatic relational circumstances. This is true for both sides. Both sides are likely feeling disappointment, dread, panic, or fear. Yet each side tends to become locked into only considering what each side wants. When was the last time in any arena of life experience that you got exactly what you wanted, particularly when someone else wanted something different?
In reality we all want the same things. What people universally want is to be treated fairly - to experience and share equal dignity and respect. We want our children to grow up with a minimum of pain, baggage, and dysfunction, and not to pass the legacy to the next generation to resolve. No one wants to be miserable, or to make others around them miserable. Once we know what we really want, we begin to see what we don't want. We begin to recognize how destructive emotional reactivity can be. We begin to see, especially in the early stages of relationship breakup and divorce, how at times we are in some trance where the best part of us has taken a vacation and Golum is running the asylum. In those moments we need to remember to ask, "what is my best hope and intention for this divorce and the people affected by it?" This is why I've written about mindful divorce.
Q. This seems easy to say. I'm hurt, and I'm worried about my future.
A. Of course. These feelings are reasonable and natural. It is unnatural and even a cause for concern if people don't want to protect themselves.
It is just really important to see that there is a linkage between fear and its roots in the sense of lost control; what the destructive, ultimately self-defeating reactivity of fear causes.
My goal as your lawyer is to successfully manage your case, and your expectations within it, and so to radically improve not only the experience of divorce but the outcome. This is a revolutionary concept for lawyers.
Q. Where do I start?
A. There are several things that can be done immediately: First, consider finding a licensed therapist to ground you. We don't climb our way out of these boxes alone, and it is dangerous to believe we will. It is a lonely fantasy. Second, think about what your divorce should look like, and what you would want your relationship with this person whom you once loved, on some level, to look like three or five or ten years from now. Third, at least consider embarking upon an investigation of forgiveness of the other person and perhaps even yourself.
Find a lawyer who not only deeply understands the law of marital and non-marital breakup, but who also understands the human part of the experience and expresses a commitment to guiding you through your case with the minimum of conflict and who is sensitive to your goal of not being a destructive force. He or she can support your highest values, without sacrificing your financial safety.
Q. What changed for you?
A. I was raised to believe that honorable advocacy was zealous advocacy, and that winning so long as the lawyer's conduct remained ethical was everything. I believed this for years without inquiring further into what that really meant. And it's still a huge part of me - outcomes are everything. But I don't measure them the same, and I invite my clients to explore what outcomes they really seek - outcomes aren't measured just in terms of superficial self-interest. Today I see consequences they didn't teach me or my colleagues in law school.
As a young and therefore immature lawyer I bought into my clients' struggles. This approach burned me out to where I wanted to quit the practice, because I was absorbing all the conflict by osmosis. This is an experience that many lawyers have. They tend to identify with their clients' stories of struggle and victimization, and achieving a "just resolution" becomes a function of what is seen through that lens. It is a really bad thing for you and your case if your lawyer identifies with goals involving revenge or conflict. The alternative is to admit a much greater opportunity to serve as a coach as well as an advocate. Lawyers wear both hats anyway, but they pretend they don't. I mean, if someone has played through a battle or a game a thousand times or more, chances are they know how to captain or coach the players. Lawyers need to take more responsibility about what they know. I am a lawyer because I want to serve people. Really anyone that becomes a lawyer or a judge wants to help people. But the system is quite constraining. We are activists when it comes to litigation, but not when it comes to avoiding conflict and setting the proper tone and course around or through the litigation.
This is a really big issue in our society. Divorce is at once the most difficult and most important experience that half the population has, and it affects in very radical and personal ways the other half. It is time for a paradigm shift in family law practices. Lawyers need to take on a greater activist role which views their function as navigators of these hazards. By the way, a growing number do.
Q. How does your view fit within the family legal community?
A. My experience of it is that lawyers and judges talk a lot these days about professionalism and civility, but few speak to the sensitivity that I am proposing. A lot has been accomplished. It is not enough, but it is a foundation.
Everybody involved in the divorce system is dissatisfied with the process. There just is little agreement what to do. I say, we must represent our clients ethically and zealously, but lawyers need to admit a larger role in reframing the issues, managing the dispute, and in guiding clients - while referring them to mental health specialists who are appropriately trained to coach them through the emotional trauma. Being the best divorce lawyer we can be starts with a personal commitment. Improvements in the system only happen one lawyer and one case at a time. What else is there? Aliens aren't going to fall out of the sky and enlighten us en masse. I'm staking out my territory in this pursuit, and making my own commitment. I am challenging everybody else to, too.
Q. How do I find the right attorney?
A. People rarely seem to consider this question with care. The proper question is "how do I find the right attorney for me?" The attorney you select should reflect your philosophy and goals, and if you are beginning from a place of rage or grasping, your selection will tend to reinforce that.
A relationship with your divorce attorney is in many ways more intimate than most other professionals. Sure, doctors examine your body and address very private concerns about it, but when you hire a divorce professional you are entrusting that person with both your exterior life (what you have, what you need, your children, your future) and your interior life (how you feel, and your best hopes and worst fears). We don't hand that kind of control over to many people in our lifetimes.
Yet people choose a lawyer as if lawyers are just soundbites or brand names , with very little accurate information and without little deliberate consideration of what their goals are. This is the fault of lawyers too. In the shallow world in which we live, we advertise ourselves as if we were products, some quirkier than others.
You will interact and rely upon your family law attorney in ways that you might never imagine with any other service professionals. You need to be able to trust that interaction, and their intentions and abilities. Yet, most people are afraid to ask their lawyers the simplest of questions before handing over their life's story, and considerable sums of money. It's bizarre when you think about it.
Q. What questions should I ask a prospective lawyer?
A. First, before you step into that lawyers office, you should know something about them. Today this is easy. Go to the California State Bar website. Search the attorney's name. You will learn where they attended undergraduate school and law school; when they were admitted to the Bar, whether they belong to any Bar Sections and stay current with the law, and how long they've been practicing. You will learn whether they have been disciplined. Lawyers can be disciplined for a number of reasons; some go to the essence of that attorney's character and affect their reputation in the community.
Second, ask for a referral, or if anyone you know has heard of the lawyer(s) you plan to interview. You want to be sure the reporting person is themselves reliable and has an experiential basis for their opinion. Referrals from satisfied clients or other legal and mental health professionals are the very best recommendation. Referrals from other lawyers is a very good way to choose a lawyer, and if you know an attorney run the names you are considering by him or her. Martindale.com rates lawyers in terms of client satisfaction.
Web sites, like this one, are also a good place to start. They may tell you something about the attitude of the attorney and the style of their practice. Most attorney websites are put together by advertising firms and don't reflect the real personality of the lawyers. You can't blame those attorneys who really don't want to be bothered with maintaining their web sites. This web site is a labor of love, and its content is written by myself or is properly credited to other professionals who share here.
Then it comes time for your initial conference with an attorney you might hire. Most lawyers will not charge for this consult, or will at least will provide a half hour or more without charge. Remember that lawyers are busy professionals, and time is their stock in trade. So it isn't fair for you to interview lawyers to gather free information or validate your opinions. People who shop opinions are eating food they don't intend to pay for at the check-out stand. But, asking the attorney their opinion on issues important to you at the initial meeting is not inappropriate or off limits in the slightest.
You are trying to determine several bits of information:
1) Is this attorney actually experienced in ways that are helpful to you?
Family law is complicated because it is not just the lawyer's experience with the law that is important, it is also their familiarity with situations similar to yours.
2) What is the attorney's attitude about how divorces should be handled?
Is that attitude consistent with your own? For instance, if you intend to lie to your spouse, hide assets, and if you care only about the outcome from your own perspective, you would need to hire a lawyer who tends to practice in a way that accomplishes that goal. If that is who you think you are, you want a gunslinger. But, beware, they will treat you at the end of the day the same way as you want to treat others. I hope you are not that kind of client. The emotional and financial costs will be far greater than what you thought you were keeping to yourself.
If instead you are a decent person who like anybody involved in the trauma of divorce is rational one day but distressed, confused and even nasty and reactive the next you need someone compassionate and ethical to guide you. Fortunately, most lawyers are ethical. If you think that being ethical means being soft, think deeper. Conflict resolution is not the same as conflict avoidance. Still, you do need to make sure that your lawyer has the background, ability, experience, and interest in you to manage your case.
Even if your spouse seems to fit the mold of the self-absorbed client, this never means you need to match that style. You may need an experienced attorney indeed, but you are in good shape if that lawyer convincingly expresses that they value resolving the case more than engaging in the fight itself.
3) You need to feel that you and the lawyer you hire are a good fit. If it reliably seems that the two of you can act as an empathetic team, and that you value the same things, you are on the right track.
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