I remember when I took the bar examination 20 years ago there was a section on the exam that dealt with domestic issues such as marriage, divorce, child custody and family issues in general. Like many law school exams it was an ‘issue spotter,’ which meant that there was this convoluted hypothetical that looked like a highly condensed version of a daytime soap opera. To answer the question properly, you had to first figure out what were all the ‘legal issues’ in the hypo.
I remember that after reading the hypothetical, which took a good twenty minutes, I had this ‘flash of insight.’ Unfortunately, it wasn’t the kind of insight that I could put to use in answering the exam so I suppressed it. Here’s the thought I pushed away: "There are no legal issues here. There are issues with people not being able to get along properly."
The other day I was in court helping a friend with a custody issue. I spent the whole day in this state court waiting for the judge to get to our case. Every other case ahead of us was a domestic case, most of them with custody issues, and issues relating to the management of children. At the end of the day, after having heard many ‘legal arguments’ I found myself thinking that the root problems were really personal problems. The real problem was that people who onced loved each other enough to have kids now couldn’t get along with one another without having the court system provide a framework for them. We lawyers are happy to join in the fray and help build a legal framework for people, and slow to try to find a way for people to get along with less legal framework.
Obviously, lawyers tend to see the legal problems first because that’s what we are trained to deal with. Call me crazy (you wouldn’t be the first one), but I’m thinking that maybe lawyers should be trained to deal with other types of problems too. We need more psychological insight in the legal system and less parlimentary procedure. I know, I know. It’s not really practical to try to get people to have ‘psychological insight’, is it?
But maybe, it’s one of those non-practical things that’s still worth a try. Almost every legal problem starts out as another kind of problem first. I’m just saying that we should also focus some attention on the place where the legal problems originate.
P.S. If you want a better practice, start using the 80/20 Principle.
What a great post. I am not a lawyer, but as a Navy officer, I spend aconsiderable amount of my time helping folks sort out their personal problems.I think it would be better if family law lawyers were trained in otherskills to help folks with their problems, but its funny that people go tolawyers and then are surprised that the lawyer wants to use the law to solvethe problem. If you go see surgeon, she’s going to want to cut to solve yourproblem.
My partner practices in Family law and knows all too well the problems faced in domestic court. I don’t have the empathy needed for this practice. She (Gay Coleman) is running for District Judge in 9th JDc in order to help solve some of these problems. One method that is being tried is collaborative divorce, as mentioned above, however, just as in mediation, there needs to be teeth in the law to reward this method, and not allow clients to fall back into the win-lose mindset. We know all too well the problem of long waits at the courthouse, and it helps no one. As ernie points out, it is a personal problem that is brought before the courts because not handling it causes a social problem. It is only a legal problem because the individuals have “rights”. The legal system needs to force more of the responsibility down on the participants if they want to continue to pursue their “rights”.
As a Family law practitioner, I can say that Ernie and Rob are both right.I frequently have to explain to clients that the “justice system” is notequipped to handle domestic issues with any degree of justice, much lessefficiency. I try to steer my clients to a.d.r such as problem solvingnegotiation, mediation or collaborative divorce. But, often those options are limited or unavailable due to opposing counsel or an adverse party (or my own client sometimes). There needs to be a complete over-haul of the family law system so that “pitbull” tactics are not rewarded anda.d.r. is encouraged systemically. And, I agree a large component of that would necessarily involve lawyer training, if not in psychology, than at least in a.d.r. specifically in the family law context.
I think more than any other bar, the family law bar does a poor job dealing with its clients’ underlying problems and getting clients the help they actually need. Undoubtedly this is in part because fresh from law school the tools they have are the wrong ones, but it still baffles me that the bar does not do more to train family law lawyers to deliver the necessary help.
I now have several friends who’ve gone through the process, and to a person they criticize the lawyers they’ve had for helping to perpetuate and profit from a system that in the end draws out, prolongs and aggravates the underlying issues and mires its participants in the process rather than helping them to escape it.
Great post. I will call you if I need a lawyer.