1. Stress. Stress takes its toll. Stress keeps me awake at night, shoots adrenalin into my system at the wrong time and wears me out. I counter it with booze because that is all I have time for. Stress is also a component of most of the other reasons I am leaving this practice behind.
2. The Clients’ Expectations. This has been a huge problem from the beginning, and the media in all its forms has only made it worse. I recall one judge telling me about a case where the wife expected him to be able to order her husband to be a better man: stop drinking, make more money and be a better father. He lacked the authority to make that order, much less the raw materials achieve such an outcome.
People come in somehow expecting we can amend lives to generate “happiness” and vanquish the opponent with some kind of television magic. I’m not a magician, or a TV lawyer, which tends to enhance #1 (stress) on the list.
Unlike criminal law clients, the family law client does not perceive himself to be in trouble. Instead, he or she thinks they are right.
One day I received notes from two different clients. One was from a family law client bitterly complaining I did not get the results they wanted, which as usual, were largely unattainable. The second was from an estate planning client thanking me for my care and concern, looking out for his family. This stands out as a good reason to choose the latter field.
3. The Bar. I often think of my brethren as if they are the soldiers opposite us on the Western Front in World War One. We are sent to fight each other by the clients, yet at Christmas we call a truce, exchange cards, and perhaps a glass of wine. Then, December 26th arrives, the cannons begin to fire again, and we race back to our trench lawfare to begin another year of conflict. Maybe I am just getting old, or have done this for so long it is like a reflex, but if I am not mistaken, with few exceptions the bar has degenerated. From what I can tell, the intellectual discipline to think like a lawyer has been abandoned in favor of advancing any bad optics which can be cited to throw the other party under the worst possible light. All unfortunate circumstances, faults and sins are the gravamen for complaint, rather than any recognizable legal
Recently a twelve-year marriage was dissolving and the wife, now age 61, blamed the husband for leaving her career at the outset of the marriage. This was her lawyer’s main point: “He made her quit.” So, this sounds in tort? Is that what you are saying? I know your client wants you to say that, but can you make that argument with any intellectual honesty to how the law reads?
The answer is no, the remedy is in the maintenance (alimony) statute, which has no-fault provisions and was enacted so as to even out this situation. It didn’t matter how she got to 61 without employment.
We may also see the alcoholic rewarded for drinking away whatever productivity he or she may have had, and the outrage of the non-drinking spouse enhances factors #1 (stress) and #2 (client’s expectations) in this list. Yes, it’s true, there is no moral- or value-based element to family law at all. Instead, the law is applied with a sterility that leads to the demise of long-held beliefs as to what the “justice” system is for; justice in a broad value-based sense.
That the alcoholic may have disabled himself or herself is of no consequence, instead we find the party at the time of divorce and ask ourselves, “Where will they be left?” Unable to support themselves, more property may be apportioned to the self-disabled. Family law has become unmoored from any sense of acts having predictable consequences.
This is probably an overstatement, yet it is a consistent expectation on the part of the clients that some moral value system they have adopted will be applied to prove that the other party has failed them and should be punished for it.
4. The Bench. Family law is largely a discretionary environment – judges have broad discretion to achieve an equitable result – and to me it seems like the strike zone has increased. A younger bench is less predictable. Also, initiatives such as Access to Justice, where people appear in court pro se having filled out pre-printed forms to request relief probably has made the bench cranky.
And shouldn’t they be? We in the profession cling to high minded concepts such as due process and rights, but the litigants whose matters are adjudicated often don’t care about John Locke or the founding principles of the nation, they just want what they want and are willing to accept any means to get there.
A panic button has been installed in each courtroom for the predictable situation where the jurist has to tell the pro se litigant what the adverse ruling is and he or she doesn’t take it well. It used to be my job to “control my client” like I am some kind of courtroom bouncer. At least I don’t hear that any more.
5. Accounts Receivable. The day I announced to the firm I wanted to leave family law I reviewed my accounts receivable ahead of the partners meeting. Ninety percent of the figure was from uncollected family law matters. This issue, as well as the other factors they have noticed, many of which are on this list, led the partners to endorse my choice to leave family law behind.
6. Time. Family law is fact-driven. Unlike probate, where the matter starts when the client has died and the law is all relatively settled so we more or less know what will happen, family law can be driven by all kinds of optics that might be relevant for the Spanish Inquisition but will not turn the knobs and dials of the Divorce Act. It takes time to sort through all of this, and even longer to convince the client what they want to talk about will not make any difference. It is remarkable how much time family law takes.
7. Health. I have noticed many of my peers have dropped dead practicing family law. Usually it is a cancer or heart attack. This happens once or twice a year. Occasionally it is a member of the bench.
The family law attorney is rarely in good health. Instead, he is obese, lacking factor #6 (time), to address factor #1 (stress), with any kind of healthy option such as regular exercise. Instead, he stress-eats and drinks too much. This factor weighs the heaviest on me. This is not how I wish to end my days, struggling with factor #2 (client expectations) and #5 (money), waking at night due to #1 (stress) and generally having the sense that the job is killing me in a slow death which will be remembered but only for a time.
Recently, returning to my office after another day of a multi-day trial, my managing partner told me I looked like death warmed over. Right. That is how this felt. The pace of the practice I used to be able to tolerate is now harder, 33 years on. I end the last trial more or less reeling; getting through it on sheer instinct and experience rather than an energetic advocacy.
8. Feeling Ineffective. One of our retired judges mentioned to me that it seemed like all he was doing was shoveling someone’s shit all the time. That is what family law often seems like. The conduct of the client suggests there is very little that is “family” in family law, and despite all the opinions and statutes it seems like there is very little law, either.
The rules of evidence seem to be suspended from time to time, and the discretion of the bench is so great I have a sense I am not really being a lawyer, instead just a well-paid usher for the client, bringing them to their seat in the theater where the results of their lives will be shown on the screen. Like a film, I have no means to change the outcome.
My skills are legal in nature, and in a tabloid optics-based practice I am not doing any one any good. I know a lot of people would disagree with me, but I have this sense I am not really effective, at most making adjustments to the angle of the aircraft so as to have a controlled crash, but a crash nonetheless. Fasten safety belts everyone, it is going to be a bumpy landing. How much talent does it take to say that?
9. The Horror. Where do I start? Was the worst case the one where the newly-minted adult child, just out of high school, was beaten to death in a drug deal gone wrong, then the parents fought over the ashes of his corpse? We prevailed, but in the face of an appeal the settlement negotiations degenerated into cups and grams of the deceased child’s remains to be divided between the parents.
Or maybe the worst case was when the man had an affair, came home and infected his wife with AIDS, then they both started to die. A divorce petition is filed and on a tragic motion day I witness them fighting about whether to cash in the pensions to live on or leave those for their children who would be orphaned.
In an attempt to stem the negative impact of divorce on children the bench imposed a class on all divorcing couples to educate them about the effect of the parents’ split on the children, and refuses to enter the decree without proof of attendance. Sometimes the bench seems to hold out hope this will cure more than it can.
Another lawyer told me about the client who was ordered to leave her child with the father to take the parenting class, over her objection and despite significant evidence of his negligence as a parent. She followed the order. The father took the child on a float trip; the child drowned while the mother was attending the class on how to be a better parent.
In orbit around these matters are all manner of cruelty that has crossed my desk. I have a sense I have spent a career trying to manage the collapse of our culture, or stem the tide of the Decline and Fall of Western Civilization, and have lost.
10. The Desire to Be Doing Something Else. I have flown my 25 missions over Nazi Germany, seeking to stem the tide of a dark force in the world. Like Yossarian, I have seen the number of required missions raised while on duty, now well over 30. Perhaps that is the Catch – 22 for family-law lawyers; once in it, once seasoned by battle, one acquires a certain knowledge and reputation and escape is difficult.
Occasionally I get a glimpse of other men’s lives and ponder whether it wouldn’t be better to be doing what that guy is doing? Or I sometimes think whatever abilities and talents I have been assigned in life perhaps could be better spent elsewhere. I am not sure happiness can be attained, but if there was a modicum of peace I would be satisfied.
So I have chosen to leave family law and we shall see whether I find something more satisfying in the estates practice, or something completely different.
Postscript, 2019: Shortly before the above was written in late 2016, I stood up at a partner’s meeting and, like Chief Joseph of the Nez Peirce Indians, declared “Hear me my chiefs! From where the sun stands now, I shall fight no more forever” and announced I would leave family law.
I have discovered, however, that one cannot really get away from oneself. No matter what kind of case I am handling I still have the same standards, the stress is still present. But the pace is slower; unlike family law, there are no emergency motions in the estates practice. Estate law is more settled. Results are more predictable. The lawyers act like lawyers, the bench is less cranky. And when the case is over, it is over and I can move on.
Still, if there is going to be conflict, there is going to be conflict. A pots-and-pans divorce between a married couple is more or less the same thing as a pots-and-pans probate fight between siblings once their parents have passed. I suspect this is just the human condition.
(Cover photo: Pete Patterson’s former office when he practiced family law.)