I am often told by potential clients that they need an aggressive divorce lawyer. Their spouse or ex is crazy, manipulative, narcissistic, and otherwise hungry for conflict. They cannot be reasoned with. They are looking for someone to fight back and stand up for them. They want to know if I’m aggressive and willing to get nasty. I always tell them the truth.
Aggression Is A Tool For A Specific Problem
The only thing I care about is that my clients are happy and get the result they want. Everything else is secondary. I would never seek to be aggressive in a case unless I was sure it was needed and would benefit my client.
Maslow’s Law of the Instrument states that, if the only tool you have is a hammer, it is tempting to treat everything as if it were a nail. Likewise, if the only tool an attorney seeks to use is aggression, he or she will see every case as a fight. That will result in missed settlement opportunities, additional conflict, dramatically higher costs, and an irreparably harmed relationship between two parties who may or may not need to raise a child together. Obviously, there are many cases where there is no relationship to be saved and a fight is coming regardless of the other party’s actions.
Aggressive Divorce Lawyering Can Be Effective
The somewhat uncomfortable truth is that aggression can be effective. Aggression is a useful tool where the opposing side has taken hardline or even harmful positions. In those situations, where reasoning is ineffective and compromise is impossible, aggression can help apply pressure on the opposing side and encourage them to reevaluate their positions.
Aggressive lawyering, at least in divorce, can take many forms. The most common form is perhaps the least effective, namely the bombastic and rude courtroom argument. I could write an entire blog post on why this is insufficient, unto itself, to win a case. However, the summary of that post would be: the point of a courtroom argument is to prove to the judge that your position should prevail and to obtain the relief your client is legally entitled to. Any approach which distracts or irritates the judge is counterproductive. As such, a loud or bombastic approach should be used sparingly, and only in situations in which it does not negatively affect the judge’s opinion of your argument or client.
Aggressive lawyering in family law has more to do with responsiveness and thoroughness than being mean. It is expressed through thoroughly reviewing and following up on discovery, quickly correcting any factual inaccuracies, and relentlessly progressing issues through the court such that the client’s needs are addressed as quickly as possible. It is about shaping and controlling the narrative of the case in all pleadings and court appearances.
The benefit of the above-approach goes beyond winning the argument in court, although that is an important element. A thorough and relentless approach to litigation will apply pressure to the other side. The opposing party will find themselves responding to discovery and discussing their production on an ongoing basis. They will find their missteps and violations in court, supported by documentation. They may feel scrutinized. Presumably, if the other side is obstructionist or aggressive, they may rethink their position and look to avoid conflict.
Aggression Is Effective When Divorcing A Narcissist
This, too, deserves its own blog post, but I would be remiss if I left it out of this one. Narcissists often go on the attack in a divorce. They bring up every conceivable issue about their ex and attempt to excuse their own behavior by explaining it away as a response to their spouse’s actions, e.g. if my husband/wife didn’t do X, I wouldn’t have done Y and none of this would have happened. They lie, manipulate, and go on the offensive from day one.
You can’t be passive in a fight with a narcissist. Logic and emotional appeals will be ineffective. It is important to build your case with documentable facts from day one. There will be almost no agreement on facts and a constant manipulation of agreements and discussions. Thorough and detailed lawyering, narrative control, and litigation will almost certainly be required.
Aggression Is Not Always Effective
While an aggressive divorce attorney can help break through logjams and push a case forward, there are times when aggression will compound the issues in a case. For instance, there are many cases where both parties have valid concerns and positions. The issue is in how those concerns are presented and received. The most effective way to move that case forward is through dialogue and understanding the other side’s concerns.
Aggression can also have longterm consequences. It can destroy trust and communication between the parties and lead to additional litigation (and additional litigation costs). While the approach may be cathartic for clients, if the cost dramatically outweighs the benefit, aggression may not be the answer.
Do I Need An Aggressive Divorce Lawyer?
Whether you need an aggressive family law attorney is very fact-specific. I’m always happy to talk or meet and provide my opinion about your case.