thinking again of the real world, these
processes should help defend the lawyer against malpractice claims if things
go wrong, as they sometimes do when
people are subject to the tectonic pressures of personal conflict. It’s helpful for
the lawyers to be sedulous about keeping
the client informed and about being sure
the client understands and wants an unconventional settlement.
Of course, it’s more complicated than
that. Lawyers and people faced with divorce (or litigation) often do not make
generous settlement offers because they
are afraid to be vulnerable, and for good
reason. People are afraid that if they
hold out the olive branch they will be
stabbed. Lawyers fear creative settlements that don’t follow case law because
they are afraid of the new, and they are
afraid of being sued themselves.
When benevolent negotiation
I have talked on many occasions to lawyers and people who have had divorces.
Many people have thought the same thing
benevolent solution to a dispute is bet-
ter than a hard-fought result. Lawyers
— not the clients, not the accountant,
not the psychologists — should lead in
fostering determination because law-
yers know how to be tenacious in con-
flict. Tenacity is ingrained in lawyers.
Criminal lawyers are particularly good
at being determined, and perhaps can
cross-train divorce and civil lawyers.
Determination is so important that I
will say it again: Lawyers and clients
have to be determined.
We all know that treachery happens.
The benevolent lawyer should have a
litigating lawyer available on the side-
lines. That lawyer never does anything
but lurk in the background armed with
legal weaponry. It should be inexpensive
to have an experienced courtroom law-
yer on retainer, aware of the course of the
case, and available to jump into the case
if necessary. It’s like the English system
of barristers and solicitors; some lawyers
do court, other lawyers do office.
Another common objection is that
people are selfish and they just want
“The benefit of a
divorce is so great
that it is worth
about divorce and litigation for so long, so
tenaciously, so opinionatedly, that it is
very difficult for them even to listen to the
message about approaching divorce (or
any legal conflict) from the standpoint of
the welfare of the opposing parties.
There are many responses to people
who insist that thinking about divorce
can never change. Lawyers and their
clients have to be patient and determined in their search for a benevolent
or compassionate solution. They have
to be patient and determined in explaining, over and over again, why a
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