Getting Even or Getting Ahead: Do divorce litigants want nasty lawyers or would they rather win?

(c) 2016 CHAIM STEINBERGER, P.C., By Chaim Steinberger

Descending in the elevator from a meeting of the New York County Lawyers’ Association Matrimonial Law Committee, one lawyer asked a newer one, “Where are you working now?” She answered with the name of a prominent, well-known, scorched-earth firm. I bit my tongue as the conversation about her life and work there continued.

After getting off the elevator I turned to a colleague. “I was good in there, no?” I remarked. “I didn’t say anything.”

“What do you mean, Chaim?” he responded.

“I wanted to yell, ‘Don’t learn their bad habits,’” I replied. “But I didn’t.”

“Oh, you’re so naive, Chaim,” he retorted. “Clients are in an angry, vindictive place. They want someone who will exact revenge and inflict maximum pain and damage on their spouses. And if you’re not up for it, then someone who is, will step right in.”

Was he right?

People–all of us–are at our most intransigent, unyielding and inflexible when we’re feeling threatened. Indeed, the more threatened we feel, the less we’re able to see another person’s view or consider their feelings. (When in the throes of the amygdala’s fight-or-flight response, we sublimate our prefrontal cortex.) And the more we fear, the more protective we feel we need to be. So we compromise less and fight more strenuously. After all, our very survival depends on it.

It is, therefore, the client who feels most threatened and most unheard, who is most out of control. It’s the client who feels like their own lawyer isn’t listening to them, isn’t putting their points forth to the Court, that feels frustrated and, therefore, acts out. It’s that litigant who the Court must assign two Court officers to stand behind at every Court appearance.

By making my clients feel safe, I allow them to bring their better selves to the fore and, thereby, get better results.

I make my clients feel safe by listening to them and deeply understanding their concerns; by demonstrating competence (dare I say expertise) in the art of law and negotiations; by demonstrating integrity, perseverance and dedication to their cause; and by explaining the law, how it works and the reasons for them. Through all this, I provide my clients the safety and security of knowing that they will end up with a reasonable result. With that security, I give them the gift of restoring their logical minds to control over their panicked responses. They are now able to make the choices that they consider are better for them in the long run, rather than achieve some momentarily-fulfilling but long-term harmful revenge ploy.

If I’m able to demonstrate the same to the adverse party, then I’ve set the stage for two rational people to develop rational solutions to a vexing situation. If I can demonstrate, by word, deed and manner, that I’m not “out for blood”; if my comport and demeanor demonstrates to my adversary that I treat them with courtesy, dignity and fairness, then I will have lessened the “fear factor” within them, and I’ve now allowed them to deal with the situation rationally instead of out of fear and emotion. Then I need only show them why a certain proposed resolution makes rational sense for them.

Granted, all this takes time, effort and patience. But the rewards are well worthwhile. As outlined elsewhere in our writings, two adversaries working together can each achieve more than if the parties were working against each other. (See Game Theory–The Prisoner’s Dilemma.)

So achieving this goal–allowing both of the warring parties to feel safe and comfortable–has often resulted in achieving greater benefits for my clients (and adversaries too) than if we had adopted the “scorched earth” route.

What do you think?

(Posted: 03/13/2016)