Navigating family law cases requires an abundance of one thing: respect
My 40-plus years litigation practice in the Toronto area consisted of a moderate amount of family, aka matrimonial, cases. In spite of this area being emotionally charged, I think that I was able to maintain a reasonable degree of sanity. Reasonable.
I say “emotional” meaning that the same fervor of love that goes into the unison of the couple can readily flip over when the relationship tanks, turning the parties into bitter adversaries, which can take a toll on the lawyers’ soundness.
I will say family law is rarely dull or boring. The public will forever flock to the theaters to watch such iconic epic films and TV miniseries as Kramer vs. Kramer, Scenes From a Marriage or Marriage Story, as opposed to a flick about some tax law issue. I don’t think too many producers would invest their time and money doing a movie entitled something like Gone to the Cayman Islands.
The key to dealing with family law cases successfully is understanding the human element. Be cognizant of the emotional factor. The first step is to realize that every human being wants to be treated with a modicum of consideration.
I once attended a mediation in which my client’s wife was named Darleen. My client was having an affair with a woman called Doreen. The wife was a bit livid throughout, actually referring to the mistress as “that harlot.” At one point during the negotiations, I made the mistake of inverting the names and calling the wife Doreen. She was certain I did it deliberately, and she walked out of the mediation. The mediator, her lawyer and I all tried to talk to her, offering apologies for the mishap, but she was inconsolable. All the king’s horses and all the king’s men could not put Humpty Dumpty (or rather Darleen) together again. My bad.
You would never see this happen in, say, a commercial litigation action. I highly doubt that if Amazon (whose virtual assistant is Alexa) was in a mediation with Google and, if some question arises, the Google lawyer blurts out, “Let’s ask Siri,” that anyone would be upset.
The good thing in my aforementioned case was that it did settle eventually. Maybe it helped the fact that the husband was eventually dumped by Darleen. Oops, Doreen.
Unfortunately, emotions in family matters often involve violence. Cruelty in our jurisdiction is a proper ground for divorce. And in my decades of practice, I have yet to see a party accused of cruelty admit to it.
I once cross-examined a husband on a wife’s cruelty allegations. There was actually something about the guy’s appearance that added credibility to the wife’s claims of cruelty. For one, he wore small round-framed glasses. He also had a high forehead. He actually bore a moderate resemblance to Heinrich Himmler. When asked, the man said, “I wouldn’t even hurt a fly.”
About 15 minutes later, as I was concluding my cross-examination, he blurted out gratuitously out of the blue, “A fly maybe.”
I suppose he thought that this impromptu admission might have added some credence to his testimony.
Unfortunately, it is not uncommon for some of the violence to percolate over to the representing lawyers, especially via belligerent male spouses. Once at the family court while waiting for our case to be called into the courtroom, I asked the husband’s lawyer to clarify some of his client’s information about his property. The husband, one Chuck, was not happy with my presence throughout the case, taking it as personal affront that I was representing his wife in the first place. He told me a couple of times during previous encounters, “How could you look at yourself in the mirror when you shave?” Actually, for some strange reason, I had no problem doing so.
When I posed that question about his finances, he lunged at me, fingers clawed, and bellowed, “You know everything about me already. Do you know this?”
His lawyer fortunately restrained the man, and security took over. The matter fizzled out soon. But I will say the event did likely raise my blood pressure. And it was probably a good thing I did not call him Darleen.
At times, disgruntled parties even threatened serious violence against me. One husband, Maurizio, told his wife before a court hearing that he would do something very nasty to her and “your lawyer.” This gentleman, I was told, had some familiarity with firearms. We notified security, and a plainclothes police officer was assigned to sit in the body of the court.
While in the courtroom, I felt a bit uneasy turning my back on Maurizio. I envisioned Wild Bill Hickok sitting in that saloon in Deadwood, South Dakota, playing his last hand of poker.
Fortunately, the encounter passed without incident. In fact, after the hearing, the detective came over and told me that he was ready, adding (jokingly I presume), “Had the guy taken out a gun and shot at you, he would only have gotten one shot. I was ready for him.”
That was most reassuring.
In my practice, I always made it a cardinal point to act civilly and respectfully toward all. I would often see initial letters from opposing counsel to my client reading something like, “My client, Mrs. Wilma Henderson, will no longer put up with your monstrous conduct. You are hereby admonished to vacate the matrimonial home within seven days, failing which we shall apply for a restraining order, etc.”
Upon being retained, I made it a practice to telephone the opposing counsel and break the ice with some humor. I would say something like, “I have just been retained by this guy from Loch Ness.”
This approach worked very often to diffuse matters and lead to a peaceful resolution, though, like anything else—but not always. I doubt I could have diffused Chuck by telling him a joke.
Then again, it beat responding emotionally and nastily in kind.
Navigating through a family law case successfully really gets down to an abundance of one quality, namely respect. Everybody wants respect. Again, some confrontation will still happen, but more often than, not the seas will remain calmer.
I conclude thinking of a co-op student Raj who once worked for me. We spent months on a flagship, highly charged case involving custody and visitation rights to children, allegations of violence, breaches of court orders, etc.
At the end of his work term, I asked Raj what he had learned from all this. He replied, “I learned never to get married.”
At least the experience did not tarnish his sense of humor.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on X, formerly known as Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.