When they go low, we go high...

Everyone - and I mean everyone - has a moment where they have felt they were being treated unfairly.  The injustice of it all seems so inequitable and is often hurtful.  The one thing that the "wronged person" fails to understand, is that everyone has their own definition of what is fair or reasonable or just.

Clearly, there are situations where it is very evident that someone has been treated unfairly or even wrongly.  However, with respect, I think that those circumstances are less common then we think and usually are perception problem and miscommunication.  Often - especially with families and close relationships - a situation of unfairness arises out of misunderstanding, missed queues, unspoken words and people failing to have crucial conversations about what is important to them and what they expect or want or need.

As a family litigator,  I have seen pages upon pages of affidavit materials where one spouse sets out all of the misdeeds, unmet expectations and bad behaviour that they feel the other party engaged in or exhibited.  Sometimes, the lawyers who are acting for these people, don't vet their complaints - as I strongly believe we should - and this legally irrelevant material is now filed in Court and is a part of the public record.

Many parties feel shame and humiliation over behaviour that they may actually have engaged in - during a period of time when they simply were not at their best.  The quandry is whether or not the irrelevant material should be addressed and refuted - lest their silence be seen as acquiescence or acceptance of these allegations as fact.  The natural instinct is to engage in similar tactics and include a laundry list of complaints that the other party has engaged in.  However, to engage in the same behaviour, only serves to  move the case further down the rabbit hole of litigation and more importantly, further away from a cost efficient and timely settlement.  It is a waste of retainer money and Court resources.  More importantly, it does nothing to help your client move forward in a healthy way - it keeps them stuck.

I am far from perfect.  I am sure my colleagues could point out some points in some of my affidavits, where perhaps I have not been as diligent as I hope to be about not including emotional and accusatory statements.  But this year - more than ever - I intend to make it one of my goals to absolutely refrain from this kind of hurtful and non-productive conduct.

The fact of the matter is, that it is really easy to get "infected" by our client's emotions.  It's easy to follow their lead and to be angry at the treatment they received.  However, lawyers must remember that clients are hurt and worried and scared - and they simply aren't making good decisions sometimes.  They are worried that they are not going to see their children as much; they are worried that they are not going to have enough money to support themselves; they are sad that they have lost an intimate relationship and they are grieving.  Their conduct and decision making is often mired in fear and they rely upon us to be the voice of the reason.  More importantly, the Court relies upon us to provide legally relevant material to assist in making a just and appropriate decision.

It's easy to write an affidavit as a narrative and to slip in author or reporter mode.  What is harder, is to critically appraise the information provided by your client and weed out what is based in emotion and of no legal consequence.  As Counsel, I believe it is our duty to practise law responsibly and professionally.  It's more important to say, "Hey, I hear you and I understand that you are hurt.  Those kind of statements are not only legally irrelevant but also detract from the strength of your legitimate claims."  It's harder to write materials for our clients that are fact based and to analyze how the information they have provided supports their legal positions and to then make that nexus and present it to the presiding Justice.

And in my opinion, that is what sets apart strong lawyers from so-so lawyers.  Anyone can churn out a tale of woe.  It's important to push yourself - as Counsel - past the emotion you feel for your client and to do what they hired you to do - which is to apply the law and to protect and maximize their legal rights.

Michelle Obama - to me - is the epitome of grace and class.  She exudes leadership and intelligence together with a down to earth approach based upon common sense, kindness and compassion.  We should all be like Michelle Obama and rise above the pettiness and drama that we are faced with not only in family litigation but in day-to-day life.  GO HIGH, there is nothing extraordinary about saying low.

Have a great week,