When the recent stay-at-home pandemic conditions were lifted to allow people to opt to venture out and for children to decide whether they wish to physically return to school, I started noticing a lot more buses on the road, and I had to adjust my travel time for work. But it also made me think of a connection to family law. Over my many years of practice, I have seen and represented thousands of clients, and I have seen some who were ready, willing, and able to participate in the process, but just as many others were not. In both cases, the lawyer must ask themselves: “what is the client’s motivation behind this family law case? Do they want to be a part of this case, are they ready for the inevitable emotional/financial trauma of the case, or is someone else pulling strings? In other words, “who is driving the bus?”
This blog will discuss both the internal and external influences, from a negative point of view, that can impact how quickly the case resolves, what terms, and at what cost to those involved.
This blog is for both family law lawyers and clients who are contemplating family law litigation or mediation (as it applies to both). I implore the clients to please “heed the warning” before they find:
- their hard-earned money spent on lawyers and others, rather than themselves and their family members,
- many years of their life wasted in lawyers’ offices and courtrooms, and,
- their life-long relationships with their children and other loved ones ruined forever.
As referenced above, there are usually two types of negative influences in family law matters: internal and external. With regards to internal negative influences on the client, I can usually identify what is motivating a family law client by describing them generally in one of three ways:
The “deer-in-the-headlight” client.
This is the client who was completely caught off guard by the end of the relationship. This client has “no one driving the bus” and will blindly agree to anything to “just get it over with” to put the apparent nightmare episode behind them. Sometimes they do so by putting their head and the sand and pretending it does not exist until many years have gone by, they have not seen their child for some time, and FRO is coming after them aggressively for the thousands of dollars they owe in support arrears. A good lawyer will spot this poor soul and make sure to slow down the process to allow the client to take control of their bus properly.
The “guilty conscience” client.
This is the client who was the cause for the relationship ending, typically due to infidelity. This client also wants to resolve the matter quickly, and usually on terms that are not necessarily beneficial to them. To assuage their conscience, they sometimes are willing to “give up the farm,” and so a good lawyer will ensure that, despite the emotional issues related to the end of the relationship, we live in a “no-fault divorce/end of a relationship” society in Canada. Aside from abuse, the courts do not care why the relationship ended – they only want to ensure that the children are properly cared for. Therefore, it is incumbent on the lawyer to protect their client’s interest and make sure the bus is not driven wherever the “jilted” side wants it to go.
The “scorched earth” or “litigious” client.
This is the client who is incredibly mad as a result of the end of the relationship, regardless of whether they were the cause of it. Sadly, this client is becoming more and more common. This client is usually articulate and well-informed, but they think they are smarter than any lawyer or judge; in fact, they usually do not respect a legal professional’s opinion unless it completely supports their own. This client wants to go directly to trial, bypassing every normal step in the process because “they are right and the other side is wrong.” There is no self-awareness with this client about the issues, how the law applies to them, or the likelihood of success. Some would describe this client as narcissistic – this term is sometimes used in psychological content, and as I am not a trained mental health professional, I will not use it. A good lawyer will do what they must to help the client be reasonable and regain proper control of the bus, or else this client will drive the bus in such an irresponsible manner to cause as much damage and punishment for the other side as possible, often with the children as collateral damage.
These client examples are general, and by no means are all clients pigeon-holed into only one of these three types. But these are the ones that we see most often and which cause the most problems for themselves and for all involved in family law. Be self-aware and if need be, stop and ask for directions from your lawyer, rather than putting your bus (i.e., your family law case) in the ditch.
With regards to external negative influences on the client, there is usually one of the three types of people who improperly motivate a client to make poor decisions in their own family law case:
- The client’s parent (and generally, it is the mother). It has been said that no one lives a child as a mother does, but in family law matters, sometimes this love is poison for the client. The client’s mom is well-intending – she wants to help you, the lawyer, know what the case is about. They want to do all the talking, all the phoning, texting, and emailing, with little direct input from the client, save for their signature on forms. They are more than willing to pay for the lawyer’s retainer and their fees, and in some cases, they may want to be listed as an added party. They come to see themselves as “the client,” rather than their child as the client. Usually, this parent has been hurt in their own family law case in the past and do not/will not let that happen to their child. As well, they may also have more of a vested interest in the case than the actual client does, especially when access/time-sharing is really the only issue to be determined. They will come to see themselves as the person who makes “the final decision” on whether to make or accept an offer, as they are the ones paying the legal bills. The client needs to be aware of this dynamic, as the client can easily find themselves taking a back seat (or no seat) in their own litigation. The lawyer needs to be aware of this as they must always know who their client is, and is not.
- The client’s new partner. Generally, we see this dynamic with male clients who have their new girlfriend, new partner, or new wife take control of the “litigation” wheel and will be the one in control throughout the process. Like the loving mother described above, they mean well, but it usually comes from a place of their own pain or disappointment in their own family law case. But unlike the mother scenario above, they will be prompting the actual client to “speak up” or “stand up” for themselves not to get pushed around by “the other side.” They will rarely say the other side’s name or refer to them with feigned politeness as Ms. or Mrs. “So-and-So.” This scenario often sees good deals get refused when the client asks the partner for their input. In turn, the new partner advises the client to not get “screwed over again” by their ex. As a result, the client generally gets a poorer decision, and costs get paid to the ex. A lose-lose proposition that can easily be avoided if both the client and their lawyer remember who should be driving the bus.
- The client’s friend(s). Much like the examples above, clients will often defer to a friend or friends who have their best interests at heart. They are going through a difficult time and will allow the friend to do the talking or try and make the best decisions for them. This is the dangerous combination of the deer-in-the-headlight client who meets the over-zealous third party. This client will likely have been a previous family law litigant, usually, a self-presented one who again knew better than everyone else. They use the opportunity to provide meaningful emotional support as the “foot in the door” to get into the bus and drive it as if they are reliving their case. Even though the players are different, the friend still says that a) the ex is still “a loser,” b) the judge is just out to lunch, and c) their lawyer knows nothing, is only out to bill as much as possible, or even worse, is trying to romantically get with the client. Much like the angry litigant, be very careful of this external influence because a client can easily find themselves lost and alone when the bus driver did not know the proper route.
I wish to make one concluding comment. Despite the examples above, I often welcome the input of others to assist the client. I repeat, assist the client or me and not take over their case. There are many circumstances where a good friend, family member, or new romantic partner can be emotionally supportive and provide some sober second thoughts on the case. But just keep a lookout for when the good friend, family, or partner transitions from a helpful navigator to “the bus driver from hell” of the family law case.