Sometimes lawyers tell clients to “forget what you may have seen in the movies; your trial will be nothing like that”. Maybe, but there will be a courtroom, a Judge, an opposing attorney, witnesses, exhibits, etc., just like the movies. True, a Joe Pesci-esque character will not likely come into court with a leather coat and a Brooklyn accent, but that is not to say trial lawyers are like  “normal” people. We aren’t.

A trial is a combination of procedure and performance, both of which are equally important. However, if the procedure was followed, and your case is prepared properly, the performance can make a difference. A trial is not a show, but trial lawyers know in the end we must convince a Judge our argument is correct. Evidence and procedure are helpful, but presentation matters.

Boiled down, a trial is opening statements, presentation of testimony and exhibits (evidence), objections, and closing statements. There could be other issues like motions to do this or that, but usually trials follow a pattern. So, what do these terms mean? Well…

A. Opening Statement – An opening statement is not an argument. The opening is meant to give the Judge an idea of what the issues are, what the evidence will be, and what you are asking the Judge to do. Each attorney has their own style for opening statements. Mine is simple:

• Always given an opening statement;
• Keep it short and to the point (5-10 minutes); and
• Don’t argue.

Usually a trial happens after months of preparation. The parties know the issues, the Judge knows the issues, and they just want to GET ON WITH IT. However, it is a mistake to waive an opening argument, even if it seems like a “simple” case. A trial is not a time to assume anything. Even if the same Judge heard all the motions and had the parties in the courtroom dozens of times before trial, assuming the Judge knows the case is an error. Expect your attorney to take a few minutes to frame the case and let everyone know what to expect.

B. Direct Examination – Direct examination is the first time the witness is questioned and tells what they know about the case. During direct examination the witness should give the Judge background information that supports their proposal, and tells the Judge the story of the case. The Judge does not want to hear from the lawyer, the Judge wants to hear from the witness. If you are called as a witness (and you will be) be prepared to give more than just “yes” or “no” answers. The questions should be open-ended (What, Why, Who, etc.), and answers should be given to help the Judge understand why the issues are important.

C. Cross Examination – Cross examination is what you usually see in movies, with lawyers shouting at witnesses and giving lectures. That is not how it is supposed to happen, and usually it does not. That said, we lawyers love to hear ourselves talk, and we’ve seen the same movies you’ve seen. Cross examination is the chance for the lawyer to get the witness to say things they do not want to say by using leading questions. Again, each lawyer has their own style, but I find that haranguing a witness is not effective, especially if the witness cries. While that might sound satisfying, it can make the lawyer look like a bully and create sympathy for the witness. The better technique is to methodically go through the testimony and evidence, get the witness to admit they were wrong (or better yet lying – that is the best), and show the Judge they are not credible. Usually it is not that clear, but cross examination is the best way to keep witnesses honest about the facts.

D. Re-Direct/Re-Cross – After the direct examination and cross examination lawyers have a chance to ask additional questions if needed. Re-direct or re-cross questions are not required, but they are common, especially if the cross examination was damaging to the case and the witness needs rehabilitated.

E. Objections – Objections happen when a lawyer thinks a question or exhibit should not be used as evidence. If you are testifying and a lawyer objects, stop talking. The Judge will rule on the objection and then tell the witness how to proceed.

F. Admission of Exhibits – Exhibits are usually copies of records, photographs, emails/texts, reports, and sometimes recordings. But just bringing them to Court is not enough. Exhibits must be relevant to the case, authentic, and testified to by a witness. Sometimes exhibits are stipulated into evidence beforehand to save time at trial, but contested exhibits will require foundation, or the background letting the Judge know the exhibit should be admitted and considered as evidence. Foundation comes from witness testimony, and it can be tricky if the witness (or the lawyer) is not prepared. Beware: exhibits for a trial can be hundreds, if not thousands, of pages. You should review them all carefully before trial. The likelihood you will be asked about an exhibit is very high. If you have not reviewed all the exhibits before the time of trial it could be damaging to your case.

G. Closing Statement – This actually is argument. This is the time the lawyer tells the Judge what the evidence shows, how the evidence supports your case, and why you should prevail. Closings are longer because the lawyer can now argue the client’s position. Again, differences in styles are abundant, but I find that a calm and collected argument, referring to all the evidence, positive and negative, is the best option. An older lawyer once told me something I will never forget: the only reason for a lawyer to be dramatic in court is if they do not have a good case.

A trial is not a fight, or a time for hysterics. Emotions will be high, and lawyers cannot help but be a little dramatic. But too much drama detracts from the message. Rather, a trial should be a well-organized presentation of the evidence demonstrating why your position on the issues is correct. Not a robotic recitation, but not so much drama the message is lost.

After all, this is not a movie.

The last tenant: showing grace.

For me, the thing with grace is the troubling part where it comes off as patronizing, rehearsed, or even false. Lately I have heard a lot about grace. “Thank you for showing me some grace,” etc. That is usually very nice to hear, and I am sure many times the statement is heartfelt. The problem is what might look like grace is often just plain old common decency. Maybe that’s the real problem though: common decency is not that common, and what should be just mannerly is now seen as “grace.” Okay, I will put my soapbox away now.

The grace I think about when considering these tenets is not genteel. It is not second nature or just small talk. In this context grace should really mean taking a breath, calming the anger/anxiety the situation has aroused in you, maybe not saying what you really (really) want to say, and deciding to extend that person some goodwill. To rise above the anger/anxiety and communicate with the other person in a way that may not seem natural, if not completely opposite, from what I might think the situation calls for in response.

None of these tenets are easy, and we could spend a considerable amount of time arguing over which is the most difficult. But I suspect they are each the hardest, and most likely it depends on the situation at the time. Speaking with kindness, holding a boundary, being honest, and being positive seem to be more centered on what I will receive. How I am communicating so I can feel better about my side of the communication. Showing grace seems different in that I am extending something to someone who by my estimation may not deserve what is being offered to them. As I think about it though, that mindset is faulty for two reasons.

First, I need to remember just because I am offering someone something does not mean they want it or will even see it as something of value. Maybe this grace I am giving them is not seen as grace at all but a false or patronizing statement, if they can even really hear what I am saying at all. If that is the case, then this grace is nothing more than lip service and not the positive statement I believe it to be.

Second, and more importantly, I think showing grace really is ultimately for me. While it might seem like grace to them and they may appreciate it for how it was intended, I still receive the benefit of being mindful, saying something hopefully positive, hopefully honest, and hopefully kind. I still get the chance to be what I think of as a better person. Not better than the other person, but a better version of myself. If the other person reciprocates and our future communications are positive, then I receive that benefit as well. Like an investment in a more positive future.

When it comes to showing grace, for me it helps to try and think about how I would want this person to communicate with me if the roles were reversed. In my mind it is sort of like a teeter-totter. For us both to have fun we must push off about the same amount so we each get to go as high as possible, or to make sure we don’t bruise our butts. If I am showing the other person grace, then hopefully they will show me grace and we each get something positive out of the conversation. The more positive the conversation, the more likely future conversations will be positive. And the next thing you know, smooth teeter-tottering.

That said, first we must get on the teeter-totter. And that is really the issue, isn’t it? The split-second between the nasty thing they just said and how I will respond? How can I wedge grace in there to keep the anger/anxiety from taking over and saying what first comes to mind? In that split second, if I am mindful and practicing the other four tenets, then I think the chances that grace will be what comes out of my mouth is good. A split second does not seem like long, but if I was previously able to say something based upon an angry thought without hesitation, then logically I should be able to do the same with a statement of grace. I think it depends upon how much I practice, and how much I want to change. But in truth, sometimes the angry statement still comes out, and that’s okay. Sometimes nasty statements are met with an angry response, and perhaps deservedly so. Just don’t be too hard on yourself. You can always try again, and again, and again. That’s the great/terrible thing about life; it gives us so many tries.

My best advice? Take a deep breath, maybe even a few, really think about what you want to say and why and try to show some grace. And as you do that, show some grace to yourself. I mean truly, I think we can all use some grace, and we should begin with ourselves. Once we learn how to do that, maybe it will be easier to show that same grace to others. Thanks for reading.

Couple of disclaimers: 1) I tend to put a lot of stock in honesty; and 2) I do not tend to put a lot of stock in “my truth.” The first was how I was raised, and the second is my own opinion. Nature and nurture.

To start, I think we need to be sure we talk about the difference between being honest and being truthful. We should always try to be both, but the truth of something can be different than how we are honest. Case in point: I can honestly believe I am right about a certain subject, but that does not mean my feeling is truthful. Sometimes the difference can get lost. Sometimes the “truth” is something we have told ourselves so many times and for so long the actual truth gets lost. We need to be mindful of understanding what we see as the truth may contradict, sometimes drastically, from what the other person sees as the truth.

That is where honesty comes in. I think honesty is based more upon feelings and beliefs than upon facts. Honesty centers upon how I am feeling, reacting, and communicating with a person at a given time, and based upon a given subject. Truth factors into the conversation, but if I am angry, happy, or sad about something the fact it may not be true does not cancel those feelings. I might seem more than a little irrational, and it is at that point I should probably take a break from communicating, but I am being honest about my feelings in the communication.

The other side of honesty is when I am communicating with someone, if I want the communication to remain positive and productive, then I need to recognize their honesty might not be truth. I need to recognize the communication for what it is and consider my response carefully. If I am trying to understand their position and communicate my position back to them, then I need to be sure to recognize their feelings. Granted, that assumes the person is genuinely communicating with me, and I can understand the communication, but that burden falls upon both of us. Both parties must be honest if progress is to occur.

With honesty being my goal, I think it helps to take a moment and organize my thoughts. Maybe I am truly angry, and if so, while anger is a necessary emotion and probably honest, I might not be in the best frame of mind to convey what I am thinking. In my experience at least, yelling at the person I am communicating with and making sure they understand I am angry is not productive. Usually, they disengage or get angry back and make it very clear why I am wrong. Because as I have said, I cannot remember a smart thing I said when I was angry. On those rare occasions that I get angry I tend to make as much sense as algebra (please don’t get me started).

So, I take a moment, organize my thoughts, and feel like I can honestly communicate. Or maybe I need another moment, or hour, or day or week. That part really is important: if I do not feel ready to communicate using these tenets then it would be best if I ask for more time. To be fair, I should not use this as a delay tactic, and if I agreed to discuss a certain topic at a certain time, then I need to be prepared. But if I truly need some additional time to organize my thoughts and be able to communicate honestly about an issue then I should ask for that time. On the other hand, if that time is asked of me, then I should give it if possible.

Assuming I have those thoughts organized and am ready to communicate honestly, then what I find to be helpful is acknowledging what I am feeling by simply starting the statement with “I feel” and moving forward. It probably should not be “I feel you are being a jerk”, bur something more like “I am feeling anxious because of how we are communicating.” Taking the focus off the other person, stating my feeling, accepting my part in the communication, and honestly conveying what is going on inside my head is the first step.

The second step might be a response saying something like “Thank you for sharing that with me. For my side, I am feeling upset because of this situation as well.”, and back and forth it goes. For me, the frustrating part of these types of communications is at first it seems as though nothing is really being said. Maybe so. But maybe the other person needs to convey those feelings to really, honestly communicate. Maybe I did not understand what those feelings were, and if not, how can I understand their point of view? If we really take a moment to think about it, isn’t that the point of almost all miscommunications? If we only took a few (hundred) steps back and started off by identifying the source of the emotion, perhaps we could work towards a solution.

I know, I know, that seems ideal, and possibly even unrealistic. After all, I think the times we are truly honest is when we first establish trust. If we do not trust the person then the likelihood of open, honest communication is probably slim. And trust is hard. Maybe one of the hardest things to develop or re-establish. But we must start somewhere. Somebody must take the first step. Somebody has to start by saying “this is the idea I am trying to convey, and why it is important to me.” When that happens, I think one of two responses occurs, both of which are positive.

First, the other person will recognize the honesty and trust, and reciprocate. Second, the person will not recognize the honesty or trust, the response will be combative, and I can practice my other four tenets. I start to build a good communication path, or I identify a closed path. I think both are better than not being honest. But again, I put a lot of stock in honesty. I would even go as far as saying that without it you cannot have real communication, and without real communication nothing will truly be solved. Thanks for reading.

Being positive.

So, before I get started on this, I want to address toxic positivity. The definition seems to be no matter the circumstances, a person maintains a positive attitude. The pushback is being positive all the time overrides emotions somehow lessening them. I think the pushback is well intended, but misplaced because:

1. “Toxic” is a strong word. I could see “overly positive”, “too positive”, or even “annoyingly positive”. But toxic implies that something is poisonous or harmful;
2. We must remember that if someone is being positive that is their emotion. Our reaction to their positivity is our emotion; and
3. Simply labeling something as “toxic positivity” seems like an easy way to dismiss a point of view.

The above tends to ignore the benefit of what being positive can do to help your mindset, and your communication. My grandma would have said throwing out the baby with the bathwater, and she was much brighter than me so I will not try to improve on the saying. I will simply say someone that seems to be positive all the time probably is not, and if we believe humans genuinely try to be good people most of time, then perhaps we should give the person some grace (more on that later) and see the benefit in what they are saying. You know, to approach it with positivity?

Now granted, the idea of showing gratitude daily and looking for the good in every situation can be daunting. And for me, writing down those gratitudes each day can become a chore. I mean, you can only write “sunshine, happiness and hope” so many times. Really, it can be counter-productive because we are not reflecting on the situation. Added to that, we are not giving ourselves the chance to feel positive and negative emotions, both of which help us regulate how we communicate.

Okay, so now that we have the preliminaries out of the way, how about we address the tenet of being positive? I think the idea should be that if we try to approach the situation with a good attitude, not expecting the worst or see a bad intent behind someone’s actions, then perhaps we have a chance to see the situation from different angle. To think about something critically instead of having a pre-formed opinion, and not allow ourselves to decide beforehand what was a problem before will continue to be a problem now.

That last part is tough. History can be a difficult thing to get past if we can get past certain parts of it at all. I consider myself a student of history but lately I am coming to realize that I was a part of the history that was made. If that history has a negative connection for me, it might have a negative connection for the other person too. Perhaps the best way to deal with it is to examine it, look at the role I had in that negative connection, and see if there is anything I can do so it does not continue to be negative. Because, again, if it was not working before, why continue to do it that way? That’s just dumb, and I don’t want to feel dumb. It makes me think negatively about myself and others.

The tricky part is changing how we think. We talked before about mindset, and how we train our minds over the years to think one way or another. Added to that we have our  brain chemistry and the physicality of how the brain works; always trying to save us from dangerous situations. But most of the time the difficult communication we are having with someone is not dangerous. It can be hard, emotionally upsetting, and not something that should continue. But maybe if we approached that conversation from a positive standpoint first and make sure we keep our boundaries (see how these all fit together?), then the communication does not degenerate to that point.

So, what can we do to be more positive? For me, these ideas seem to help:

• None of us are unique. I know that stings, but we all have fears, wants, and needs, and agendas.
• Recognizing I am not unique helps me to remember the other person might not simply abandon their fears, wants, needs and agendas in favor of mine.
• Recognizing the other person might actually (probably) think their fears, wants, needs and agendas are more important than mine.

The above is human nature and is usually not personal. Sometimes the other person is unable to get past their fears, wants, needs and agenda without first voicing them to you. They just need to say their piece. Not great, but it helps to think it is may not be directed at me personally. What is paramount is that their fears, wants, needs and agenda is voiced. That they be heard, and that I hear them. Oftentimes it is not really whether I agree or not, but that I listened and heard what they said. Sometimes they end up talking themselves out of their own position.

If I respond negatively, I am likely to get negativity in return. That is an argument, not a discussion. Both have their place, but argument is convincing someone you are right by telling them why they are wrong. Most of us do not like being told why we are wrong and communicating with a negative attitude generally insures it will not end well. When that happens, it can be difficult to get back to a place where communication and problem solving can occur.

For me it is important to try and approach the communication with the idea things will work out. Maybe not work out perfectly or exactly how I want, but in the end it will be okay. That is tough to sit with sometimes, especially when it feels like everything is coming apart, but please be patient.

That advice is hard to give, and harder to follow, but most of the time it works. It will take time and lots of practice. But it gets better. It will be okay. I am positive.

Now that you have mastered speaking with kindness and listening with kindness, it is time to tackle what I think is the most difficult tenet: holding a boundary. There are many different ways to describe holding a boundary, and the definition that works for you should be the one you follow. For me it is deciding what I will (or will not) agree to or accept. Easy, right? Yeah, not so much.

It can be very hard to transition between when the boundary was set, and then using the boundary. The difficulty can be the boundary may have been set at a time when you were in a different emotional state. For example, perhaps the boundary came from a place of anger or fear after a difficult conversation, and you decided that never again would you feel _______. But things calm down, you reconsider, a new confrontation begins, and old habits kick in. (Sigh).

Or, maybe you set your boundary at a time you were calm and collected, had a chance to observe the situation from an objective point of view, and determined how you would act next time. But then the next time comes, that calm you felt evaporates, and old habits kick in again. (Bigger sigh).

So, what good is having a boundary that is never enforced? Short answer: there is no good in having that boundary. Really, there is no boundary. It is good to be considerate, flexible, and open to discussion, but in my mind a boundary is synonymous with a limit. Hopefully I did what I could not to reach that boundary. I used my other tenets to try and work through the situation with the person I was dealing with, and we did not come close to the boundary. But if I tried all that I could think of, and I cannot resolve the situation with the other person (usually because they are being unreasonable), then there has to be a limit. Otherwise, what generally happens for me is I abandon my boundary and give in on the issue, thereby creating resentment and anger for myself. Usually during these times, the issue comes back up and all the fun that was experienced in arguing about it before gets to be revisited. (Biggest sigh).

So perhaps some pointers are in order in determining your own boundaries. What works for me (most times) is:

• Decide what I will accept or will not accept. This can include what I will agree to do, or what I need from the other person for us to move forward.
• Make sure the boundary is expressed clearly to the other person. This can be during the conversation or by text or email, but the important part is it needs to be communicated. The clearer the better, and the sooner the better. Also, best not to make it confrontational. For example: if you are not comfortable when a discussion gets heated or confrontational,  maybe your boundary is you will not participate in those types of discussions. Not that the other person cannot get upset; we cannot dictate their behavior. But letting them know beforehand if the conversation escalates to the point of a confrontation and you are not comfortable, then you will be disengaging. Maybe taking a short break with an agreement to resume the discussion later.
• Make sure there is a consequence for when the boundary is crossed. In the example above, once you expressed the boundary clearly, if the conversation escalates and you are uncomfortable, then you end the conversation. Please do not abruptly end the call or immediately walk away. Rather, remind the person of your boundary and let them know you feel it was crossed. Not that they did something wrong, but rather you have reached the boundary and will not participate further in the discussion. It is important to remember we can only control our side of the conversation, and our feelings may not be their feelings (who are we kidding: their feelings are definitely not your feelings if you get to this point). But again, the boundary is there for a reason. It lets everyone know what to expect, and what the consequence will be if the boundary is crossed.
• Know and understand the other person’s boundary(ies). And, try your best to follow them. Granted, the boundaries on both sides must be reasonable and workable, and if they are then you likely will be able to follow them. However, it is important to remember that just like there are two sides to every discussion/argument, the other person may have boundaries they want followed as well. If you are asking them to abide by your boundary, then you should follow theirs with reason.

If you are using the other tenets, then hopefully boundaries will not be at issue. You spoke with kindness, listened with kindness, you were positive, honest, and gracious. The rest should be easy, right? Maybe. Or, maybe the other person is not following the tenets, or not following them within your boundary. If so, then there needs to be a limit. Otherwise, patterns developed over the years will continue, and the issues that lead to problems communicating will probably persist.

To be sure we are clear: I know this hard. I struggle with this almost daily. Setting the boundary, setting the consequence, second guessing myself, etc., is very hard. It will continue to be hard, especially in these types of communications. But as with speaking/listening with kindness, this tenet takes practice. For me it takes the most practice, but I can say from experience when it works it is the most satisfying because I know that I did what I could to avoid the boundary, but I still held it when it became necessary.

It is important to remember holding a boundary is not a sign of failure, but instead you were able to stay true to yourself. And that’s really the point: to make you feel positive about how you communicated during a difficult situation. Thanks again for reading.

Last time we addressed five tenets and how they can improve communication. The idea is using the tenets to shape how you communicate with someone and help focus the issue, and possibly avoid confrontation. To recap, the tenets are:

• Speaking/listening with kindness
• Holding your boundaries
• Being positive
• Being honest
• Showing grace

I am not sure the tenets can be prioritized because every situation and every person are different. But if we are looking for a first among equals, speaking and listening with kindness would win. So, I want to address those issues first as I think they will be useful in implementing the other tenets.

To be clear: I am not advocating practicing the tenets at all costs. Most of us have dealt with a person that, for whatever reason, refuses to be civil and reasonable. When dealing with that person, the best advice is to disengage, at least for a time. Odds are you are not arguing about whatever started the conversation, and old wounds that still have not healed are opened again. Sometimes, when faced with that situation, the toxicity of the conversation bleeds over to the person trying to be civil and reasonable, and then everyone is yelling. Do not fall into that trap. As kindly as you can end the conversation, with an agreement to communicate again when everyone has a chance to calm down.

How do we avoid those situations from becoming a situation? I think the first thing is to be kind, and let our actions and words demonstrate kindness. We are living in stressful times, but just because there is a global pandemic changing life as we know it on a daily basis does not mean there will no argument as to who has parenting time this year for Memorial Day. If anything, the stress increases the chance of an argument, so it is imperative that you start out with kindness.

Speaking with kindness, at first glance, should be the easier of the two but I argue it isn’t. First, we have to get past the hurdle that the person you are communicating with is actually listening to you in the first place. Secondly, we have to be sure the person believes, or at least is willing to consider, what you are saying. Lastly, we have to remember the first part of a communication is usually the easiest. We have considered what to say, maybe even practiced what to say, but when we start talking and they start responding, most of our speech falls by the wayside. And that is when habits start to creep in.

Habits are the worst. A subliminal cue our brains have causing us to behave in ways we may not even be aware of until it is too late. Damnit.

But habits can be broken. When we are trying to speak with kindness, we develop new habits. Some suggestions:

• Breathe (and continuing breathing).
• Smile (not creepily or like you just won, but pleasantly like you are posing with your mother for a picture).
• Get rid of absolutes (always, never, etc.).
• Try not to judge (even when they are clearly wrong).
• Try not to rephrase what was said and repeat it back (so, what you really mean is…).

These ideas will take time to master, and they will be uncomfortable while you are working on them. My guess is you may not feel like giving the other person any kindness. But even if that is warranted, what is your goal? If the goal is to “win”, say what you want, don’t solve the problem, and maybe you will get to repeat what you said to a judge. But if the goal is to solve the problem, and communication is the issue, maybe it is time to try something different.

Listening with kindness should be easier, but it can be just as difficult. First, we have to break the habit of not “really” listening, and instead just waiting for our turn to talk. I know: what I have to say is super important, and what they are saying is just the same thing as last time, and if I don’t say this now, I might forget…. I get it. It’s hard. But the truth is unless you listen and hear what the other person is saying you cannot communicate effectively. Odds are they are doing the same thing back to you. So, there are two people talking, and no one listening. Think this problem is getting solved?

What is listening with kindness? There are different definitions: active listening, mindful listening, etc. I think it breaks down into two pieces: engaging with the person speaking, and then making sure you understand what they said before you respond. The first part can be difficult, but it really means you make eye contact, you keep breathing, you keep that smile on your face, and you try to convey you are invested in what they are saying. I know, tough right?

The second part is not difficult if you start off with: I understood you to say X. Is that right? Because either you understood what X was and now can respond. Or you did not understand X and it gives them a chance to restate or rephrase. What might be even more helpful is to ask for help. Can you explain this to me because I know it is important to you and I want to be sure I understand before I give you my response? Because in the end, most of the time, we all just want to be heard.

This tenet takes practice, and you should expect to fail. Habits do not break overnight, especially when faced with a stressful situation. But know working on this tenet will make communication better next time, and the next and the next until it becomes a habit. But the good kind, not the one that makes you want to bang your head against the wall. Thanks again for reading.

Warning: this might not be a legal article.

I don’t have any letters after my name (Ph.D., etc.) that give the following any scholarly weight. Granted, I took nine whole hours of psychology in college, but that was (gulp) 30 years ago and I don’t think I aced the classes. But, contrary to some opinions, I am a person and have dealt with other persons. And, after practicing family law for more than 25 years I kept noticing that while all cases are different, they all have a common theme: communication. Or more precisely, bad communication. Okay, maybe bad is too strong a word, but in my experience communication can always be better. That is probably true in all aspects of life, but a divorce or custody case is usually where months or years of faulty communication come to a head. After observing similar patterns for so many years, it seemed to me the best way to address the problem would be proactive.

I started thinking about why parties to a case, particularly a case that goes to trial, are so opposed to one and other. Granted, some of the blame goes to the lawyers. Lawyers can be bad communicators, which is odd given that is what we are paid to do, but it is true. Knowing the law, and being able to communicate that knowledge with clients, judges and other lawyers, are two separate issues. But lawyers cannot be totally to blame, and the fact is lawyers come into the situation after the problem already exists. After the communication has already broken down and created the problem.

If communication could/should be better, is there a model that could be followed in a family law case? One that might work better in such a stressful situation? I think so. Again, I am not a psychologist, and there are thousands of books, programs, websites, apps, and seminars on this subject. That information can be helpful, and I encourage you to review it along with this article. But the one thing that I found lacking was the legal perspective, and the model I think works best in a legal case is being positive.

I know, I know, how can a lawyer dealing with child custody cases think of anything positive? Actually, about 15 years ago I noticed most custody cases involved telling a judge why a parent did something wrong. Sometimes the evidence did support that position, and while anything a parent does that negatively impacts a child should be addressed in a custody case, it does little to help a judge understand what the other parent is doing that is positive. That is really the thing to remember: a judge needs to know good things about a parent if the judge is going to make a decision that is in a child’s best interests. So I started focusing my clients and cases on being positive.

I find that the positive quality judges tend to value most is how well a parent supports the relationship between the child and the other parent. The reason I think that factor weighs more than others is because it is difficult to attain. If a parent can put aside their personal feelings about the other parent so the other parent has a good relationship with the child, then clearly the first parent is thinking about the child’s well-being and not their own agenda. When a judge is trying to determine if one parent is working towards making sure the child has a good relationship with the other parent, usually the judge is paying close attention to how the parents communicate. To be fair, positive communication can be difficult with people that you like. If we change that to communication with someone you don’t like, then positive communication is sometimes non-existent. But parents must communicate, and judges believe that fact. That said, most judges handling family law cases understand the reality of the situation. Most judges expect communication will be bad. So, what better time to show a judge that you can communicate positively?

I know, I know, it is easy for me to lecture about positive communication. I don’t have to deal with the #@!%! (other parent). True. You can ignore this article and keep doing what you have been doing for months or years. But ask yourself this: has it been working? If not, why not try something different? If it doesn’t work, you can always go back to yelling and name calling.

The idea is what I call the five tenets, and they should be the first things you think of before you communicate with the other parent. They should govern how you communicate. So before you respond that text message, that email, or say something during a parenting time exchange, consider:

• Speaking/listening with kindness
• Holding your boundaries
• Being positive
• Being honest
• Showing grace

In the coming articles I will try to expand on these tenets, and why I think they are important. I will give some relatable examples that hopefully you can use in your communications with the other party. Heck, you might even find something you can use in dealing with a friend, co-worker or stranger. The point is this: all of us can communicate better. We are all unique and have our own viewpoints, and trying to convey some of those ideas to another person with their own unique viewpoints can be difficult. The above tenets will not solve problems with communication, but they might make it better. They might help to get your point across, and even help reach an agreement. They might relieve some stress, and really, wouldn’t that be nice? If the past year has taught me nothing else, it is that anything that can take away some stress is worth considering. Thanks for reading.

I thought it might be helpful to know how lawyers go about picking clients. Or, at least how I go about it. Understanding the beginning of the process might help prepare you for when you have to make a personal, and potentially expensive, decision while under considerable stress.

There is no one way to select clients. For our office, the process has three steps:

1. The initial contact from the potential client and information gathering to determine if our practice is in the same area of the law as the potential client’s case;
2. The lawyer’s review of the information to see if the case is a good match with our firm; and
3. The initial interview.

It is not a screening process; it is a time-saving process. We do not want to waste people’s time, and if we are not a good fit then we try to refer them to another lawyer.

Once past the first two steps we move to the initial interview. An initial interview with a client is like a job interview. It is important to make sure the client knows my background, skills, and approach to their case. It is equally important for me to know those same things from the client. Every client is different, and every case is unique. But, just like picking a lawyer, there are five things to consider when picking a client. They are:

1. The Parties – Conflict of interest is an overused phrase. Conflict of interest does not mean the lawyer is out. Many times that is the result, but it is not automatic. For our office, the first information we ask is not only the caller’s information but the opposing parties’ information as well. If we had previous contact with the opposing party, we politely tell the caller we are unable to help. We do not state a reason why, which can be frustrating we know, but only that we are not able to help.
2. Facts of the Case – No one “wins” a family law case. A client may prevail at trial, but getting to that point requires time, considerable expense, and the stress of not knowing what a judge will ultimately rule. While some facts are stronger than others, and it may seem inconceivable a judge would rule against those facts, oftentimes the perception a client has is not mirrored by the judge. When that happens the “sure thing” case turns into a disappointing result. All of that is even more true in the area of family law, and when children are involved it can mean more animosity in dealing with the other parent in the future. Therefore it is absolutely critical for the lawyer to review the facts provided by a new client with some scrutiny and detachment. Sometimes clients struggle with this idea, and do not understand why the lawyer is not upset by the information they are providing. However, that detachment is ultimately to your benefit. It is better to spot the weak aspects of a case at the initial interview than learn them along the way, or (gulp) realizing them for the first time in court. To that end, help your lawyer, and yourself, by being brutally honest with all the facts. My grandma would say “warts and all”. It may be embarrassing, it may be difficult to talk about, but ultimately you will be much better off in the end.
3. Timeline – News flash: lawyers can be busy. In our office we have a method established so we do not have too many cases at any one time, and so we can give each client the attention they deserve. We know our client’s names, their children’s names, and the facts of their case. To keep that method in place, we tend not to take cases that have immediate hearings set. Granted, that does not apply to newly filed cases, but for the caller on Friday at 4:55 p.m. asking if we can appear on Monday at 9:00 a.m. for a hearing, we generally refer them to other lawyers. The best way to proceed is to be proactive. I know the case may not be something you want to deal with, but the longer you wait to talk to a lawyer the more likely it will be you are not able to retain the lawyer you want.
4. Fees – Lawyers and trials cost money, and what a lawyer charges for their fees can be a major factor in deciding to retain. Determining if the client can pay those fees, not just to retain but to finish the case, is a consideration. It is possible a judge may order the other side to pay attorney’s fees, and yes, we have had that happen on occasion. Usually, judges deny requests more requests than they grant, and counting on an award of attorney’s fees is a mistake. Both client and lawyer need to be realistic, and we do so as politely as possible to make sure the client can afford what it is they want.
5. Personality – Again, I saved personality for last because it is the most important. The lawyer needs to keep some distance from the client to remain objective. That said, working with someone who is difficult, is difficult. So, try to be civil, reasonable, and nice. It might be difficult, and being under stress sometimes makes us speak/type before thinking. But making the effort will go a long way towards making the experience more manageable. At the very least, be nice to the lawyer’s staff. I understand that I sometimes need to be the listener when a client needs to rant, and in many cases it is a good thing to get it out. But do not do it to the receptionist or paralegal. It is not their fault, and barking at staff because you are angry about something the other party did is a good way for us to part ways.

So, there you go, all the secrets we use in selecting clients. Hopefully, you can use them to your advantage to help the lawyer understand why she/he would be a fool not to take your case. Thanks for reading.