Throughout my 18 years of practicing law, 14 of which have been solely in the domestic relations arena, this past year has proven to be the most demanding in terms of case load, client management, client expectations, and judicial challenges. I suspect I am not alone in my observations of the trials and tribulations of a domestic relations practitioner. I wonder if this increasing difficulty can be attributed to technology and the slow economic recovery. Both have certainly led to an increase in divorce filings and an extraordinary number of post-decree disputes.
Undoubtedly, the poor economy and the accessibility of the Internet has made family law an attractive practice area to many attorneys, resulting in an increasing number of practitioners entering into domestic practice and “hanging a shingle.” There are now more and more transactional and civil litigation attorneys trying their hand at family law, and new, recently graduated lawyers are becoming more and more “successful” simply because they have learned how to leverage Internet and social media marketing. Unfortunately, many of these newly practicing domestic attorneys fail to grasp the importance of having experience and expertise in specific family law issues.
What was once a collegial and specialty area of law is becoming a conglomerate of general practitioners and inexperienced lawyers with only a baseline knowledge of how to handle a domestic relations case. The result is an increase in the number of highly contested cases, angry clients, and hostile practitioners. More importantly, the new domestic arena is creating havoc and, in many cases, long-term harm to families going through the legal process.
While many of these new domestic lawyers undoubtedly are talented practitioners, their lack of domestic relations experience frustrates among veteran practitioners and judicial officers. There is a common misperception that family law is “easy” and has a quick client turnover, which is likely the cause of the increasing number of lawyers electing to practice in this area. However, family law entails more than simply reading statutes and case law; practitioners must have not only expertise on many topics (divorce, tax, business, property, debt/bankruptcy, etc.), but they must also have skill, finesse, compassion, respect, understanding, patience, knowledge, mental and emotional capacity, collegiality, creativity, and integrity. It is imperative that family law practitioners become experts in separating their own emotions from those of their clients. All of these attributes are learned and acquired over time, as opposed to quickly acquired by reading text books or browsing the web.
Not only does the general lack of experience among new practitioners make practicing family law more difficult, but the rise of technology also adds newfound challenges. With the use of smart phones, text messaging, and social media, we are strapped with 24/7 electronic access. This has undeniably added new pressure to practitioners. Veteran lawyers used to pick up the phone to talk through a case, or meet for lunch or coffee. Now, emails are exchanged at a preposterous rate, taking the personal and often professional nature of practicing law out of the mix. Furthermore, clients are copied on every email, resulting in unnecessarily rude and disrespectful communications made solely for the purpose of posturing. Not only has the general nature of communication between attorneys changed as a result of technology, but social media has also created a whole host of new evidentiary issues and is often the cause of many new divorce filings.
The overall result of these new challenges in the practice of domestic relations is a higher rate of litigation. Unfortunately, the judicial system simply is not equipped to handle the volume of cases or the issues they present. As a result, questions have arisen about whether domestic relations cases should be handled administratively, or whether there should be one unified court system for all family law matters. These options have been explored in-depth by the Family Law Section’s Family Court Task Force and the Colorado Supreme Court Standing Committee on Families. Furthermore, several committees, programs, and pilot projects have been implemented across the state to address these concerns; however, none have made significant headway in resolving the challenges facing the domestic relations system.
As an officer of the Family Law Section, I have had the privilege of attending brown bag lunches for the past four years in several jurisdictions throughout Colorado in order to learn about how each district handles their domestic docket. The minutes from these luncheons are publically posted on the Colorado Bar Association’s website, and if you practice domestic relations in any court, I suggest you visit the website.
The most interesting and frustrating piece of knowledge that I gained from these luncheons is that no two judicial officers (and certainly no two judicial jurisdictions) approach a domestic case in the same manner. There is a wide disparity in the application of the various laws from one judicial officer to another, which creates inequities to litigants. In addition, procedures vary greatly from one jurisdiction to the next. For example, in one county, a party can and likely will be divorced in less than 4 months, while in another nearby county it may take up to 2 years; some counties have mixed dockets, while others have dedicated domestic relations divisions; some divide the pre-decree and post–decree work between the judges and the magistrates, and others divide the docket in a completely different manner; some counties require mediation, and some do not; some require mediation before temporary orders, and some do not allow temporary orders at all unless there are emergency issues; some judicial officers require offers of proof, while other’s require more formality; some judicial officers allow child hearsay, and some do not; some counties allow 5-day permanent orders hearings, and in other counties a party may be lucky to get a half-day hearing; some judicial officers strictly apply the Rules of Civil Procedure, while others allow for a more loose application; every county seems to conduct contempt proceedings differently; and each county has a very specific Case Management Order. The list of differences is so exhaustive and concerning that it could drive a practitioner mad. The result is a complete inability to predict how a case will progress through the system, let alone predict the outcome, even by the most seasoned family law attorney.
At the legislative and judicial level, it would be nice to see more uniformity. Perhaps the new maintenance statute is a step in that direction. It would also be nice to see our judicial officers receive sufficient education on domestic relations topics to recognize the difficultly practitioners face on a daily basis. Finally, more judicial resources should be allocated to the area of family law, as it is an incredibly important area of the law that directly impacts children, parents, society and our future.
At the practitioner level, lawyers need to a do a better job of setting client expectations from the outset. Rather than fueling an unruly client’s unreasonable demands, lawyers should be better equipped at helping clients understand the practical realities of the case. Practitioners also need to make a recommitted effort to bring back the comraderie to family law. It is time for us to work together to achieve the best results for our clients and their families, rather than working against each other for the sole purpose of being litigious or spiteful to appease our clients’ current emotions. As practitioners, we have a duty to uphold the integrity of the practice, and it is our responsibility to work together to do so.
While I do not have any answers or solutions at the moment, I do have a suggestion. I recently had the opportunity to read a publication titled “The Bounds of Advocacy” by the American Academy of Matrimonial Lawyers. I strongly recommend that practitioners get a copy and read it. It sets forth suggested rules of ethics to which domestic relations lawyers should adhere (in addition to the Rules of Professional Conduct). The publication is a good example of what we, as lawyers, can do to better our profession.
If we cannot change the “system,” we can at least work on ourselves and commit to helping families work their way through a difficult time of life. I believe, with a little more perseverance and mindfulness, the state of flux that our practice area currently is in will pass, and practitioners will get back to normalcy in the dynamic world of family law.