August 1999

Both Sides Now:
Views from Family Court

by Hon. Stephen C. Aldrich

Joni Mitchell sang of having "looked at love from both sides now." I am one who has looked at the ends of loving from both sides of the bench. It has been an exciting and interesting transition. I hope these thoughts will be helpful to those who continue to represent clients in our family courts. Consider (A) what we need from each other, (B) civility, and (C) issues of better advocacy.

Family law clients and judges have similar needs from lawyers -- focused effort to reduce areas of conflict and to settle, or smooth, the trial of unsettled cases. Consider, in order, (1) graceful ways to say "yes," (2) generation of settlement alternatives, (3) client control, and (4) chambers conferences.

1. Graceful Ways to Say "Yes." After investigation, discovery, and analysis, the parties usually have staked out their settlement positions. At that point, it is the lawyers' task to find a settlement. Good settlements reasonably reflect the risks and costs of trial, the likely range of outcomes, and the clients' values. Settlements occur when clients can find reasons to say "yes" to each other. Lawyers are charged with finding the combination of principles, analysis, and creative ideas that will permit a place of "yes" to be located. Too many lawyers abandon that task too early. They come to pretrial conferences without having exchanged offers, without having measured the value of their disagreements, without learning what's important to the other side, and without having looked for or suggested creative solutions. Often we have a second pretrial conference so that the lawyers can finish preparing to settle.

Ask your client and yourself, at the beginning of the case and at each juncture, "what settlement would we accept if we never complete discovery?" That number will be high enough to avoid malpractice; but it can be your offer before pretrial, if discovery is incomplete. Or you can make an offer conditioned upon confirming certain facts.

2. Generating Alternatives. Marriage counselors tell us that successful couples are those who are able to generate the most alternatives in a situation of deadlock. That holds for divorced couples and their lawyers as well. Many deadlocks are the product of routine and/or angry thinking or ending the search for alternatives too early. Finding graceful ways for clients to say "yes" includes, for the attorneys especially, the continual generation of alternatives.

3. Client Control. More lawyers need to be stronger in counseling their clients away from meritless positions. (It is a semi-priestly function.) Clients often will seek lawyer approval for illegal or self-defeating actions. A lawyer must be ready to say, if true, that a client's [proposed?] action is (a) wrong, (b) uncivilized, (c) likely to cause the client to lose, and/or (d) harmful to the children, and then to be ready to withdraw if a client persists in that behavior. Only once when I threatened withdrawal did the client fail to follow my advice. Wimpy lawyering leads to wasted hearings and trials. It also leads to children damaged by extended parental disputes and to unpaid lawyers.

4. Conferences are Powerful Tools. Lawyers often have trouble because of unreasonable clients. Those clients try to prevent reasonable action because of their pain and need for control or revenge. Phone or chambers conferences, set by counsel's agreement, are powerful tools to save lawyer time and client money. The lawyers can get a quick resolution of an issue without expensive motion papers and the need to wait for a motion date. Conferences are especially useful when there is dispute over the wording for a settlement made on the record.

Hon. Stephen C. Aldrich is a district judge in Hennepin County, sitting regularly as judge of Family Court. Before his 1996 election to the bench, he practiced family law as a solo practitioner in Minneapolis.

"Family law clients and judges have similar needs from lawyers"

Civil behavior in litigation begins with judges and lawyers. We can disagree respectfully, preserving the professional relationship for another day to better serve future clients. The mistakes I know I have made so far have come from frustration leading to anger. Judges have the fewest occasions for anger; we have the fewest reasons to be frustrated. Thus judicial incivility is least excusable, and lawyer incivility is close behind. Most of all, clients pay lawyers and judges for our capacity for dispassionate analysis and long-term thinking, both committed to their interests. Thus, we must never mistake passion for commitment nor substitute intensity for persuasion.

We must also carefully distinguish between lawful advocacy and incivility. Some lawyers need to hear that habitual adversary behavior is not what all clients need all the time. Others need to be reminded that, rather than being impolite or uncivil, "no" is often a reasonable answer, as is "prove it."

[If you are a perfect trial lawyer, go to Conclusion.]

All lawyers should take the opportunity to be a neutral -- mediator, arbitrator, referee or judge -- if it is offered. The learning benefit is huge. I now see that I lost some issues or cases because I wasn't focused enough on doing what would persuade the judicial officer of my client's cause. Having figured out the "right" answer, I spent too little time considering how the judge or referee was to be convinced of the rightness. Following are some mistakes, many of which I made at least once, that I now see repeated daily as I hear cases from the other side of the bench. Avoiding those mistakes will improve your results and reduce stress and frustration. In general, a little more case analysis and persuasion planning will avoid much needless frustration.

1. Underestimating Judicial Discretion. I am impressed with how little I understood the breadth or importance of judicial discretion. For most issues, especially procedural and evidentiary ones, the trial judge is the court of last resort. Judges have many rules to rely upon to reach a just result in an efficient manner. Many of them contradict each other, and the judge's discretion is the tool for choosing which principle is determinative. Consider two examples:

Example 1. Case law shows that judges are rarely reversed for their division of marital property. Equal property divisions are habit, not law. When negotiating property settlements where there are contested issues of value and/or nonmarital claims, lawyers must remember that classification of a property is not dispositive of the bottom line or end result. Judges are not required to divide the remaining marital property equally, but rather, equitably. Indeed, material differences in nonmarital wealth or income may push a trial judge to award the poorer spouse more of the marital property. Property division, both by judges and by lawyers, is an art, not the mathematical or formulaic exercise too many people want to conduct. Before making a final decision in a property case, the judges I know will consider the overall fairness of the results.

Example 2. Minnesota Statutes §518.167, subdivision 3 permits either party to cross-examine a custody investigator. And we all know that we may ask leading questions in cross examination. But Rule 611(c) of the Rules of Evidence qualifies that right by stating, "Ordinarily, leading questions should be permitted on cross-examination." The general power and obligation of the trial judge to ensure a fair and efficient trial is the standard for deciding when the cross-examination is not "ordinary." There is rarely effective recourse for the wrong decision.

Even on this side of the bench I can see that judicial discretion does not guarantee judicial perfection. But we try to be right and rely on lawyers' help to find the right.

2. Lack of Careful Study. The property division example points to a second problem. Too many family lawyers rely upon what they see as favorable facts without carefully considering how the Rules of Civil Procedure, the General Rules of Practice, the Rules of Evidence, a prior order or stipulation, and the statutes and case law interact with each other to affect a particular case. Again, consider two examples.

Example 1. Many of our current custody agreements contain clauses mandating mediation of disputes before seeking court relief. Too many lawyers treat these court orders as mere good advice if they believe they have a compelling case for a change of custody. Unless there is a genuine emergency, a quick way to be hit with an embarrassing order or an award of attorneys fees is to skip the required mediation before arguing the motion.

Example 2. Family lawyers are faced with the routine use of hearsay evidence. Many family lawyers do not distinguish good hearsay from bad, or the proper use of hearsay statements as the foundation of expert opinion. I see lawyers sleeping upon valid hearsay objections and many others objecting willy-nilly to any hearsay. Perhaps the annual Family Law Institute could have a repeating course on the Rules of Evidence for Family Lawyers.

3. Oral Argument. I loved oral argument as a lawyer, and I love good oral argument now. There are three mortal sins in oral argument: (1) misrepresenting facts or law to, (2) boring, and (3) confusing -- a judge. Don't make us struggle to stay awake while you present. Let us know what you want and why in the first paragraph. If you plan nothing else, plan your opening remarks. And like good appellate advocacy, be ready to abandon the script to respond to judicial interest. Many lawyers are so intent on their argument that they forget its audience. The skillful lawyer first answers the judge's question and then segues back to his or her theme. (The skillful lawyer also insures that hard-of-hearing judges, and all judges, can hear what is said and doesn't mumble, rattle papers, or talk to his or her file.

4. Why Are You Here? Good oral argument begins in the chambers conference. The first question every day for every case is, "Why do you want me to think about this case now?" Judges are paid to think about decisions in a compressed time framework, two minutes to two months. Frustration occurs when lawyers waste the first five minutes of the chambers conference complaining about bad conduct of the other side. Lawyers often persist, to their loss, in making those complaints first even after gentle reminders. Knowing the context first, I can understand the process problems better. I now routinely advise counsel that, when I have understood the substantive issues, they may return to the their complaints. Often the case settles with no further need for properly locating lawyer blame.

5. Act, Don't Whine. Too often I see lawyers who complain at the pretrial conference about lack of discovery when none has been formally requested, no telephone or personal contact with the opposing lawyer has been tried, and no discovery conferences have been scheduled or motions made. Just because you wrote a letter asking for information doesn't compel a response. If the information is crucial, use formal discovery and Rule 37 judiciously and soon enough. But first make a record of serious attempts to get the information without resort to the court. Remember that subpoenas for depositions to third parties can eliminate the need for cooperation from the other side.

By the same token, judges are not to be the enforcers of all good lawyer conduct. Like exspouses, most of your effective remedies to affect the other side's behavior are informal. If you find yourself frustrated with the other side, consult brother or sister attorneys for advice long before the pretrial conference.

6. Wasteful Discovery. Occasionally I see lawyers persist in discovery of limited value because they fear malpractice, perhaps unreasonably. For example, in a case where the total claimed expenses for a household are reasonable on their face, they insist on examining every check and bank statement. Or a standard set of interrogatories is sent with no editing to reflect the issues of a particular case. A little more case analysis and planning will avoid much needless frustration. Similarly, most clients want good results at lower cost. When discovery of doubtful value is considered, lawyers often explain to their clients about the risks and possibilities, and write CYA letters to the client, whatever the decision.

7. Harmful Hostility. Attorney hostility toward the other client or attorney is rarely effective and usually self-defeating. Such hostility not only increases incivility; it also makes settlement more difficult, makes cross-examination less effective, and forces the judge to react to the anger rather than the facts and law.

A corollary of harmful hostility is the frequent use of invective in letters and affidavits. Letters saying, "your client is a %!*#%*#" are good only for defending boundaries. They always set back the settlement negotiation for a while, and they make a less perfect record when attorneys fees are sought. Consider whether you want the judicial officer to spend time and thought pushing away the bushes of invective to see the trees of the facts. Remember you are being paid to get results, not angry.

You may recognize elements of both Collaborative Law and Divorce With Dignity in the foregoing comments. Collaboration can occur, even between adversaries. And divorce can be a dignified process whether there is a formal program or not.

I love being a judge. The hours and pay are less but more regular. The stress is different and for me, at least, less as well. I find it emotionally easier to decide what is right than to persuade others of a right answer. When I was a lawyer, it was less stressful for me when the judge did her/his job well. My judging work is less stressful when lawyers do their jobs well.

For most of two more years we can have less stress by doing our jobs well together in Family Court.