• Brendan

The Reality of Divorce Litigation and the Ludic Fallacy

In his unparalleled 2007 book, "The Black Swan," Nassim Nicholas Taleb pointed out the fallacy of thought that ensues from treating the real world like a casino. In casinos, which I frequent from time to time for amusement and fun, your odds at craps, roulette and other games are explicitly knowable, if not always known (or heeded). But life and divorce do not operate like a casino. We humans like to think life operates like we wish it would and that it does so in wholly pristine settings resembling the casino or the laboratory. We all seem to like to predict, prognosticate and estimate. We like to handicap everything from elections to sporting events to who will win "The Bachelor." We tend to develop very fine and elaborate models or theories to paper over the fact that most of the time, we really do not have an answer or, more precisely, that the answer we have is partial, imperfect and full of a lot of chicanery gussied up as erudition and discernment.

A couple of days ago, I was in Court, in front of a Judge who I know well. This was a Judge with a generally reliable and very marked tendency to rule in certain ways. But when the Client asked for my particular handicap on his issue, I didn't fudge or spin like we often do (please be honest on this colleagues - really). I told him my take on where we were, what we knew and didn't know, but also how we should prepare regardless of both. Luckily, like Mr. Taleb in his own prior incarnation, this Client makes trades for his livelihood (also with his own money on the line). He understood my points and told me that I deserved a raise. That was nice enough so far as THAT goes. Which isn't far in my world - but that is a different post for another time.

In "The Black Swan" ("TBS"), Taleb uses the phrase the "ludic fallacy" to elucidate the foregoing casino/reality phenomenon. The word "ludic" refers to the Latin word encapsulating a game or sport of sorts. Now, I am not a trader or a mathematician. I am just a simple divorce lawyer. I am a person that persuades for my livelihood. But despite these limitations, I do recognize, however dimly, that my world is in many ways its own complex domain. In my world, things are often opaque to us. We don't have the full scoop all the time. We say "Judge X will award guidelines" and then she doesn't. We predict "Judge Y will never hold him responsible for THAT" and then he does. We talk, email and chat with each other all the time about what Judges will do and then they go and do something else. Many of them at least.

What the un-savvy divorce lawyer doesn't account for in this all is the play that is in the joints. My first questions after hearing from a colleague who the Judge is on a case is to ask: (1) who is the opposing counsel (and were there any priors), (2) who our client is, (3) how long the case has been pending, and (4) what the inquiring attorney's prior experiences with the Judge have been like. Why do I ask those questions? Because real life and real law doesn't operate like a law school hornbook. Knowing the answers to these preliminary questions goes a long way at first.

You see, Judges (especially in divorce) are people just like you and me - only they get to wear robes at work. They have biases, predilections, prejudices, blind spots, and shortcomings. This isn't necessarily a bad thing when you get it fully. Unlike an abstract theory of divorce judging that would posit a lot of statistically sophisticated gibberish and assert more reliability, certainty and consistency than actually exists, real case results are often baffling. But for my money, I would much prefer (at least in my work) a human full of flesh and blood than a robot making decisions by reference to a manual or spreadsheet or statute. I feel like I can understand people who act like people, whereas I do not understand people who act like decisions (in my/our realm) are mostly driven by merit, erudicity or pure reason.

They simply aren't. My own view is that very little is or can be driven by such things when it involves people and the messiness of their lives. And as we have explored here previously, divorce is messy stuff. This is why we divorce lawyers are the perfect cocktail party guests. We have great stories. We have seen people do very bizarre, peculiar and quite unreasonable things. We have seen some of the depths that people sink to and we have seen people make amazing sacrifices to do some truly wonderful things.

We see humanity in full. And yet, many of us and many of our clients persist in treating the divorce process like we are modeling growth for the Third Quarter or calculating our bets at the roulette wheel. The thing that I find so invigorating in Taleb's work is the consistent way he explores our poor approaches to understanding probability and also risk. Whether this pertains to the medical realm, the food realm (i.e., GMOs), the economic realm or the political realm. And if we take his thinking, water it down to our very lowly level, we have something very useful that even we "bullshit artists" (as he terms various non-rigorous, non-skin-in-the-game folks) can understand. Something that, I think, then compels us to approach litigation in divorce differently.

Before we get there, I should note that the judge mentioned above is the same judge who makes the "Quantum Theory of Divorce" speech that I referenced in an earlier post that you no doubt enjoyed immensely and shared with friend and foe alike. To refresh your recollection, he tells litigants that every litigation action taken by a spouse in divorce has an equal and opposite reaction. In other words, divorce litigation operates like Mutually Assured Destruction during the Cold War. Husband carpets bombs Wife with subpoenas. Wife files a flurry of motions. And on and on. The judge's statement, mediated via some of what we find in Taleb, is where we I think need to dig in deeply once we see with clarity what the divorce case really is.

You see, unlike the personal injury or criminal case, the divorce case is an organic and far more iterative process in many ways. There are several rounds to a divorce case. There are cases within The Case itself. We do not merely have discovery and a trial. There are usually hearings on temporary support, interim fees, temporary parenting issues, injunctions and requests for or against the sale of residences or assets, etc. We are in Court a lot, we divorce litigators. You see, the divorce case takes place WHILE the parties are still married and while their kids and lives are still ongoing. The criminal case and personal injury case are both retrospective. A tort or crime was committed in the past and we are now, in the present, attempting to deal with it through the law. In divorce, we are dealing with the past, but also the present and many times the future (i.e., where will the kids be in the summer, who will pay for winter break vacation, etc.).

And because of this, and the corollary fact that the two parties are still intimately attached and involved (even if they don't want to admit it), our cases are truly tough stuff. Add to this mix the fact that our judges have hundreds of cases and inadequate resources. Add yet again the fact that we lawyers do not have only one client to service with a smile (though many clients behave as if this is so). We have a system that is over-burdened, we have lawyers with many masters to serve, and we have parties that are at odds and are enmeshed within this system.

We are, it sometimes feels to me, often just fumbling around and perpetually playing catch up. We operate in "real time" most of the time and are rarely in possession of all of the facts on any issue as our primary source of information and data is our clients. We often learn as we go and the issue becomes fleshed out. Add to this the additional bit that, as we are doing this all, we are doing it with another lawyer who we likely know to a fair degree, at least professionally.

This feature of the practice is a blessing and a curse. As I have explored here previously, because we are human (despite being lawyers), we develop attitudes and judgments toward our legal brethren and sistren. So-and-so is a chiseler, a dodger, a grifter. We had an experience once. We think they lied. Of course, we never lie - but we ignore that a lot of other people might think we do. Why? I think it is in large part because of the side effects of the above. Because of the rapidity with which we operate in a universe where so much is not known to us. But, rather than take this charitable view, we often assume the other lawyer was in on it and that he or she deliberately lied as opposed to the more sensible assumption that, like us, they have clients who don't always tell the whole story (purposely or otherwise), that they have busy schedules and may not have been as "on it" as they might have been otherwise, and that a lot of times we are all talking past each other.

It amuses me to no end that almost every divorce lawyer thinks almost every other divorce lawyer not associated with their firm is deficient in so many ways. It is like the 80% of parents who think their child is "above average" - we are a little off in these assessments. So what does all of this mean for us and, more importantly, for you?

It means that the entire system as it exists now is highly problematic - at least insofar as one cares about efficiency, cost, wellbeing and good outcomes (whatever that term means to you). Given the portrait painted above, most (and perhaps only many) of the proclamations, assessments and assertions of divorce lawyers who speak with Platonic authority and certainty must be seen for what they are: noise. Perhaps more accurately, those assertions are noise to the extent they attempt to ground themselves in anything abstract and theoretical. If the assertion is grounded in the concrete, empirical, real-world experience of the lawyer, then there is some degree of validity to what is stated (probably).

When we couple this messy system with the emotions involved, the litigants' and lawyers' propensity toward escalation and tit-for-tat, and our ignorance of invisible risk and of side effects - we get what we see depicted in our media: the "War of the Roses" on some spectrum between a mean disdain to active troublemaking.

In light of all of this, why would you litigate? You would not risk your job or life on a spin of a wheel in a casino where you know the odds. Why would you put your children and your income and assets at similar risk in a far more turbulent environment where the odds are only slightly better and the payouts are materially worse?

If one is sensitive to risk in all of its forms, that person would not, in most but not all circumstances, do such a thing. Or if they did, the kind of lawyer that they hired would be very different from the one they think they should hire. Returning to Taleb, he has pithily stated that "surgeons should not look like surgeons." His basic notion there is that the surgeon who looks like a schlubby butcher is probably the better choice because image is deceiving and if you are a solid surgeon who can have some success despite looking like Ernest Borgnine in "Marty" - you must've actually done something in reality. This is really, as he notes, having success despite not looking the part. Extending the theme, divorce lawyers should not talk like divorce lawyers.

Divorce lawyers are, as we have seen, depicted as Arnie Becker and Miles Massey types. Slick, well-suited, glib and always very, very reassuring. Clients seem to love reassuring divorce lawyers. It is easy to see why. The client is afraid and in crisis. The deeply throated, calming and confident intonations from a seemingly sage lawyer operate like a heart balm. The problem is they actually need less of this and more of the opposite, in my view. They need to be educated and informed and counseled and dealt with honestly. Risks and costs and reality should be our native tongue, not spin and confidence building.

It is too easy for us to take this cheaper route. We lack what Taleb has written about often, namely, "Skin in the Game." This phrase is also the title of Taleb's latest book, "Skin in the Game: the Hidden Asymmetries of Daily Life." By skin in the game, in the divorce context, it is easy to see how we lack it as divorce lawyers. We are paid win or lose. We are paid for the hourly work conducted. Our fees are determined by judges we know and you don't. Our judges will deal with us daily when you are long gone as a client. When we say X will happen and not-X happens, we are not the ones who lose custody of our kids, who lose our homes or who must live with the results. Our worst case scenario, absent having malpracticed a case, is that you despise us and say nasty things. Of course, many people already say nasty things about our ilk - so that only goes so far. And, being a one-off engagement, we rarely see or hear from the clients again. We don't depend on them personally to come back. We do like/need referrals however. This does impact us to a degree. But, the angry client can only poison so many wells.

You see, we lawyers are operating in a casino like setting regarding our economic remuneration. We have a far more pristine and pure sense of that than we do your case, for the reasons stated above. What this all compels, in my mind, is the necessity of substantive reconsideration regarding how divorce litigation is conducted. Perhaps, attorney fee issues should be referred to an unassociated body to make a more objective determination. Perhaps, there should be better incentivization and disincentivization for us and for you as well - something that truly requires the spendthrift litigant and lawyer to have skin in the game. I will explore many of these notions and others in the future.

For now, I simply want to register that reality is so vitally important that you the client and we the lawyers should be obsessive about trying to understand it, grapple with it, navigate it and always remaining firmly embedded within it. Let us reject pat answers, too easy responses, placating or being placated, playing to cheap seats and being either "suckers" or hucksters. Let us always consider the risks we don't see clearly and act accordingly. I think your experiences in divorce and our reputations as divorce lawyers will improve appreciably when we begin to do just that.

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