• Brendan

The Consequences of Action

In medicine, an “iatrogenic illness” refers (loosely) to a malady contributed to or caused by the treatment or intervention employed by the physician. It is far too rarely that we divorce lawyers consider the Matrimonial Law equivalent of this phenomenon regarding the cases we manage for our clients.

Related to this concept, as we will explore, I am reminded of an admonition often offered by a Judge who I like and respect. He frequently holds forth regarding his “Quantum Theory of Divorce” – namely, that for every spouse’s action there is an equal and opposite reaction by the other spouse. What this judge is capturing is the way in which divorcing spouses in litigation tend to engage in a Cold War-style escalation of hostilities through their counsel that leads to a form of Mutually Assured Destruction.

I think that we as divorce law practitioners do not always fully appreciate either of the two notions above. What we do in a case (or when we do it or why) can often make things worse – even when we have the best of intentions. What we provide as “treatment” often leads to the legal equivalent of the iatrogenic illness. So many times, what we do has both unintended and unhelpful non-legal consequences for our clients and their cases. Indeed, what we do often can lead or contribute materially to a series of cascading events and choices in a case that suddenly leaves two otherwise “normal” spouses in a woeful state vaguely resembling George and Martha from “Who’s Afraid of Virginia Woolf?” on the morning after the dinner party.

It is of course true that personal responsibility must be taken by spouses/clients for the choices made in their divorce. The client who insists on fighting pitched battles at every turn must own what flows from such an approach. But some attorneys will extrapolate out from this fact and further claim it is their job only to advance the client’s directives, get the case settled or tried, and that this surgeon's-style mission absolves them of any responsibility for what occurs. But this is a cop-out. People come to us in need. Confused. Betrayed. Angry and Afraid. While we cannot operate paternalistically with our clients neither should we just ignore that we are not merely advocates but also counselors at law. We should not provide oxygen to fuel needless flames of conflict and we should, by my lights, attempt to defuse conflict artfully and wherever possible.

Most lawyers I know (including myself) think that we do this. And most of us do up to a point. But what we do not capture often enough or deeply enough are the myriad ways in which what we consider as basic, normative and elemental parts of our “process” are deeply at odds with both real-life and the ways in which most lay people live, let alone experience and navigate the legal process in divorce. Unlike the less emotionally fraught disputes between vendor and purchaser or lender and borrower, the divorce proceeding places two intimately involved persons into immediate opposition and into a system unlike any that they have known before vis-à-vis one another. That system, unfortunately, feeds and encourages many of the most destructive and counter-productive aspects of those persons’ psyches. And our own as lawyers.

We must, then, be vigilant and mindful of the approaches we take - even on quotidian matters. In Taoism, the term “wu wei” refers to effortless action or non-action. There is, I think, value in considering how a more organic approach to divorce that is informed by this concept could be of benefit to both clients and attorneys. We lawyers like, as a general matter, to be proactive. We hear a problem and we want to do something. We hear a claim and we want to respond to it. But this approach and this cycle of action and reaction, of point and counterpoint, of claim and answer – is often deleterious if not engaged in thoughtfully. And this damage flows not only to our clients and their cases but also to ourselves. We easily become conditioned into a mindset of action at all times. Indeed, how many times do we hear our colleagues say “we need to move the case.” But how often do we ever respond – “why?” How frequently do we feel the need to issue this, file that or just do something? We seem to have a perennial itch that needs scratching. We have a bias in favor of action that often ignores the non-immediate and non-material consequences that inevitably come from all actions taken.

Of course, every case must ultimately proceed, information must be obtained and things must be done. I am certainly not advocating for recklessness or sloth or a kind of laissez-faire lawyering in divorce. No one can dispute that sometimes cases do need to be moved proactively because they are languishing. But many times cases do not need the “treatment” we provide, or at least do not need it in the traditional ways we often think we need to apply it –- ways, as noted above, that artificially (and often unintentionally) inject conflict and create or solidify opposition. Many times, cases just take the amount of time they take because something beyond the legal process compels it. And we should heed that, because like a golf swing, taking it low and slow in a case, while against our professional natures, is exactly what the doctor ordered. It is instructive to see what happens when you go with the flow. Many things have a way of resolving themselves naturally - and just because a case is not in mediation or collaboration does not mean that it needs to be Napoleon at Waterloo on every matter from pillar to post.

Orson Welles, when he used to pitch for Paul Masson Wines, would intone the line “we will sell no wine before its time.” Our clients’ cases are often like that. And we should, where appropriate, get out of their way and our own. For their sake and ours.

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