August 26, 2019
I had the good fortune, and open mind, to stumble across a book published in 1991 and entitled American Bar Association Section of Family Law Ultimate Trial Notebook I. This book is truly an oldie and a goodie. Robert B. Moriarty, Esq., a family law attorney in New York at the time of publishing of this book, contributed an article entitled âThe Family Law Negotiator: Successful Divorce and Family Law Settlements.â I had to tap the intellectual archives of second grade to remember how to cite to a source other than a case or statute, but, in an effort to avoid plagiarizing, I think I covered myself.
Moriarty has a section of his article dedicated to âDealing with the Difficult Lawyer.â He addresses this personality type in terms of negotiations; but, I think his analysis applies to litigation as well as all personal and professional settings and interactions. He recommends the following âeffective strategies.â 1. Persevere in doing what you are doing. Focus on the merits of your case, common concerns of both parties, and âif you are trying to resolve those concerns by using objective standards, you are doing the right thing.â 2. Meet the other side on its ground. What this means is âexamine the other sideâs proposal rather than dismissing it out of hand.â He gives a common example of a divorce case where the mother wants to stay in the family home with the children and the husband wants the house sold so he can receive some of the equity. Moriarty writes that the wrong approach for the wife is to dismiss the husbandâs position out of hand. The âbetter approachâ is to analyze the husbandâs position and understand it. By examining the other sideâs proposal, âyou pay courtesy to it, even though you ultimately object it.â He writes â[b]y examining it, you are also able to show exactly why it doesnât work.â Moriarty next addresses âspecific problemsâ with troublesome negotiators. He references Jan C. Gabrielson, Esq.âs article in the California Family Law Section Family Law News, âHolding Your Own Against Attila the Lawyer.â âKnow yourself.â The first rule of dealing with a difficult opponent âis to make sure you do not act like he does.â He warns â[e]xamine yourself, your own motivations and your own conduct.â âThe Obstinate Opponent.â A first step toward dealing with such a lawyer, Moriarty writes, is to âmake sure they are the problem and not you.â Ask yourself â[i]s your position reasonable.â If it is not reasonable, then correct it: â[t]he earlier you correct your thinking, the sooner and better you are going to be able to reach a fair and reasonable settlement.â If the other side truly is the problem, âexplain the nature of the problem to your client, tell your client the other sideâs intransigence will likely mean increased time, effort and expense.â
Moriarty writes, and this is so important, â[i]f you are to prevail, it will be because you have convinced the other side your position is correct by testing it in light of mutual interests and against fair standards, by convincing the other side its continued opposition will only mean further time, effort and expenses and delay the inevitable, and by being prepared to wait it out if the other side doesnât change its position.â In other words, you might have to adopt a âsiege mentality.â âThe Non-Responsive Opponent.â For lawyers who do not return calls or answer âletters, return fax transmissionsâ - published in 1991, remember, although there are some attorneys who still fax - he writes the following: â[t]he best and only way to deal with such people is to give them an opportunity or two to respond, as a courtesy, and then make application to the court for the relief you need or to get the case on the trial calendar.â I also add to this section that once the case is in Court, and if the behavior so merits it, a request for attorneyâs fees and costs pursuant to California Family Code section 271 may be in order. âPaper Warriors.â This has to be my favorite phrase this month and it is going in the arsenal. Also known as opposing counsel who ââpaperâ the other side into submission.â He warns âdo not surrender to the temptation to fight fire with fire.â Instead, Moriarty suggests, in the case of discovery, âseek a protective order, if possible, upon the grounds the requests are over broad, harassing, or frivolous.â I add that you may need to seek attorneyâs fees and costs on a need and ability to pay basis if these âpaper warriorsâ drive up fees in the family law case and the other side has more money.
The bottom line, he writes, is âmaintain objectivity with respect to the requests of opposing counselâ and â[i]f the information sought is relevant and the proper subject of discovery, simply supply it.â âThe Abusive.â In this situation, Moriarty writes, â[t]he simple rule for dealing with people who scream, shout, yell, insult and abuse is not to respond in kind.â In dealing with such a lawyer, he warns âbe calm, be firm, be patient.â Most important, he adds, as is common with this type of lawyer, â[i]f the attack is personal to you or to your client, ignore that aspect of it.â The best part, â[a]nd if you find it difficult to remain calm in the face of a raging madman or madwoman, take solace in the words of Oscar Wilde: âAlways forgive your enemies - nothing annoys them so much.ââ In a month where I am seeing on attorney list-servs, social media and in my own law practice questions about how to deal with non-responsive, obstinate, abusive and paper warrior types I hope this almost 30 year old article proves both helpful and insightful.
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