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Jan 20 2018

Client Communications with Opposing Party

An Introduction

It is not uncommon for the parties in a family law action to communicate and make decisions as they always have before. In some circumstances, the historical standards for communication and conduct are fine. However, in many circumstances, given the role of litigation in their life, the consequences of bad communication and the decisions that the parties make result in a need for updated ways of talking and deciding matters.

The following blog posts outline the 6 standards for client communications with an opposing party that any party to a family law action should follow. This set of standards not only applies after the onset of a family court matter but continues after a court order is entered.

First Standard: Assume Absolute Transparency

In today’s day and age text messages, emails, voicemail recordings, and even recorded phone calls (let’s not also forget body cams) virtually guarantee that everything you say and do relative to what happens to your children, and how you interact with the other party in your court case, is documented.

Since it’s so easy to document words and actions, you have to immediately assume that anything you say and do will be accurately (or worse, inaccurately) presented to a judge as it pertains to some issue that you care about.

Second Standard: Take the Highroad

This blog post addresses all circumstances of communication. Given that you are reading this post, it probably means that you and the other party do not get along well in your matter. The nature of family law matters is difficult because the facts not only overlap with the law but they also overlap with emotions. It’s very easy to feel fearful, anxious, and stressed during these matters. It is also easy to speak with hurtful words, barbs and otherwise take the low road with your words and actions as a result of this anxiety.

Reflecting back upon the second standard above, it is essential that you stand on the high road. You should remove historical concerns and emotions out of every day communication (to the extent that you can.)  There’s no circumstance where your long term goals and needs are satisfied by taking the low load. There are a hundred thousand family law cases filed every year in the twin cities metro. None of them have any party well positioned for the future and satisfied with the Judge’s decision after having taken the path of slinging mud, underhanded maneuvers, or vengeful conduct.

Third Standard: Best Interest of the Child

If your case is one with minor children born to you and the other party, what’s in the best interest of your children is your North Star and guiding light. The decisions you make and the words that you say need to be tailored to best serve the needs and interests of your children. Taking a step back to judicial transparency (i.e. first standard), everything you do and every word out of your mouth or text on your phone should be defensible as it pertains to your children.

Fourth Standard: Kill Them With Kindness

You and the other party may have some serious disagreements. The fact that the other party is taking those positions out of spite or in denial of the facts may complicate your disagreements further. Certainly the harms, the abuse, and the infidelity of the other party in the past also makes it more complicated. Nonetheless just because you have a serious disagreement with the other party does not mean that you cannot be kind to them.

They say that “the best revenge is living well”. This is where that starts. Being anything other than kind to someone who you have no desire to be kind to is empowering. When you react without kindness-the other party wins. When you also take into account the judicial transparency addressed above, it actually does you a favor to have a track record of kindness. It certainly is much more difficult for the opposing party to ever label you as something otherwise when all of your words and acts are polite, courteous, and generous.

Fifth Standard: Demonstrate an Understanding

If you really want to impress a Judge, assuming a Judge ever asked to see your communication, use this trick:

When responding verbally or in writing to the other party, first state what you understand their rationale to be. After this, explain your rationale.

Example- Phone Conversation

  • Suppose a client had a conversation with the father of her son. At the time of the conversation, the father has the child with him for the Summer in Kentucky.
  • The client begins the conversation by stating, ” I understand your work schedule does not allow you time to drive our son back to Minnesota and then drive home yourself.” (This is a brief opinion of the father’s rationale)
  • She continues, “However, the doctors said ‘in light of his two prior sinus surgeries he should not be put on a plane. You have to drive him.” (This is a brief explanation of the client’s rationale)

Again with the concern for judicial transparency and for the sake of avoiding further problems that come from rash communication practices (which you may not realize have been your historical communication pattern) this communication tactic will protect and help you avoid further interpersonal issues with the other party in the matter.

Sixth Standard: R-E-L-A-X

Often time cases are made more difficult because parties love to text each other. Now we all text message in both our professional and personal lives. However, in the context of a family law matter, clients must be aware of the risks that come with text messaging. A lot of clients are aware that they should not be talking on the telephone with the other party as that’s only going to lead to an argument. The inability to consistently get someone on the telephone increases the advantage of text messaging – just text and they’ll get it when they read it. Oftentimes text message communications go too far.

It’s entirely too easy to respond to a text message quickly and without consideration. Though we generally encourage clients to use text messages to acknowledge emergencies or delays where email would be inconvenient, such practice should be limited. Though email tends to be a little slower and a little more onerous, the average typing ability still allows people to better articulate themselves than typing everything with thumbs. Text messaging encourages abbreviations, brevity, and emojis-many of which parties wish they could take back after they’ve been sent.

Hence, the last principle is to relax. By this I mean, you don’t need to respond to every communication right away. With the principle of relaxing, I challenge you to do the following practice: determine more than one way to respond. Conceptually give in to your base instincts and determine how you want to respond. Then, because you’re challenging yourself to think of more than one response, perhaps you’ll think about any of the above principles to come up with another way to respond. Perhaps the second way you’re thinking about is the kind respond. Perhaps another one is focused on what’s best for the children. Perhaps the third one does both of those and demonstrates your understanding. If you relax and think of more than one response in time principles of this blog post will easily guide you as to which response to send.

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