Tuesday, September 20, 2011

Emotional Barriers to Rational Decision Making in Divorcing People Adds to Their Long Term Financial Burden

All divorces have these three components: legal, emotional, and financial. (Couples with children obviously have an additional challenge, co-parenting with a former spouse.) A recent conversation with a talented and experienced family law attorney has prompted me to address a common frustration for family law attorneys, whether the divorce is litigated or collaborative: how to get the client to recognize the "big picture" of the reality of the family's financial situation and make decisions that will serve the LONG TERM best interest of the client.

As a litigation consultant specializing in divorce for 25 years, and a former director of a church-sponsored divorce recovery program for many years, I have had a ring side seat to the drama of the emotional journey of hundreds of people as they navigate their way through their own divorces. I have also been a consumer of the research on divorce, economic, sociological, and psychological, and used it to help me understand the process and varied outcomes of divorce and to apply the lessons to help my clients and their lawyers.  I have identified a few common myths which I think are widespread in our culture and which are barriers to good decision making in divorcing people, both men and women. Here are my top 3 myths:

Myth Number 1: Family court is the forum for me to get justice for all the "wrongs" committed by my spouse during marriage--legal, emotional, and financial. 

Even before "LA Law" appeared on TV with it's fictionalized depiction of divorce litigation, Myth Number 1was widely believed and firmly held. Unfortunately, as those of us to actually practice in the family law arena know, this is NOT true. I personally have witnessed a large number of divorces prolonged for months or even longer because one of the spouses refused to believe that a trial in their divorce would NOT provide a forum where the judge would punish their spouse for leaving them or treating them badly during marriage. The cost to both parties was not only thousands of dollars in unnecessary legal fees and a reduction in the value of the estate, but additional emotional scars for both parties (and their children).

Myth Number 2: Since my spouse was unfaithful (or maybe just a narcissistic jerk), I will get nearly all of the marital estate (especially since I was a faithful wife and stay at home mom) and my financial situation and lifestyle will be just like it was before the divorce. 

While this totally mistaken belief is easier to understand, it is no less UNTRUE. The economic research on life after divorce is very clear: nearly all women are less well off after divorce. (The only exception to this rule occurs in couples with marital estates of $10M or more, in my experience.)  Consequently, every dollar spent litigating directly and negatively impacts the economic well being of the wife after divorce. Sometimes the litigation is necessary to uncover assets hidden by a selfish and vindictive spouse, but this is the exception, not the rule. Usually, in my experience, unnecessary litigation is driven by the traumatized spouses desires to punish the spouse who leaves and files for divorce, and by a misguided emotional attempt to remain married as a way to avoid feeling abandoned and alone.

Myth Number 3: My lawyer's job is help me with the emotional as well as the legal and financial challenges of my divorce.

TV and movies have perpetuated this myth but didn't start it. The sign on my many lawyers' doors says "attorney and counselor" and many clients take that to mean "mental health and divorce counseling", it appears. As a graduate of top flight professional mental health graduate program and a top law school, I can tell you for certain that only one person in my law school class thought their professional role as a lawyer would include dealing with the emotional challenges of their clients--me. People who want to become lawyers (even family lawyers) are fundamentally different that people who want to be shrinks--lawyers want to help their clients by being an advocate for them; "shrinks" want to help their patients by helping them feel better, and their professional training and ethics are consistent with those roles (and frequently at odds with the law and expectations of the legal system in divorces). Lawyers are legally obligated to be "zealous" advocates for their client's LEGAL positions, so they are. Few lawyers have the inclination or the training to effectively help their clients with their emotional challenges.  Consequently, clients with this mistaken expectation (Myth Number 3) find their lawyers to be either insensitive or uncaring. Only in rare cases is either of these impressions accurate.

Given the prevalence of these myths about divorce, what can be done to improve the quality of decision making by clients in the midst of world-shaking emotional distress? Here are my suggestions to lawyers and their clients:

1. Lawyers should confront these three divorce myths in the first meeting with their client to productively manage client expectations and reduce the chances for misunderstandings later. Most likely, this message will have to be delivered again, repeatedly, since stress interferes with learning, especially with UN-learning. Women need to understand that their lifestyle is going to change, and NOT for the better.

2. Clients need to avoid seeking legal advice from friends and especially from mental health professionals, and their lawyers should remind them of this early and often. Well meaning friends and well intended therapists are nearly always wrong about what the law is and what can or should happen, and for some reason, mental health professionals are the worst source of divorce-related legal advice. Don't ask; don't listen. Ask your lawyer.

3. Clients need to facilitate their own emotional divorce and recovery. Find a good divorce recovery program and complete it. If this isn't enough support, seek counseling or therapy. Don't expect your lawyer to be your emotional support--let them do their job and handle your LEGAL divorce.

4. Clients vary widely in their information processing preferences and abilities, especially under stress. When possible, the lawyer should outline the client's legal and financial options BOTH on paper and verbally along with the short and long term consequences of each option spelled out in detail. Then, the client should have an opportunity to go home, consider the options in a familiar and relaxed setting, and sleep on the decision (and discuss the options with friends and family if they wish) before the next meeting with lawyer to finalize the decision and execute it. Few strategic decisions in the divorce process require instant decisions.  This is especially true of the "litigate or settle" decision which has such significant long-term financial implications for most women.

5. For a small group of clients who are emotionally fragile, frequently overwhelmed, black and white in their thinking, and usually very angry and resentful, none of these suggestions will be of much use. Continued therapy, including antidepressants, may eventually lead to a period of relative stability when clear and rational thinking and good judgment emerges--when it does, encourage the client to decide and sign off on the offer, recognizing that when the client's mood shifts again, the moment will be lost indefinitely.  Seek assistance from a divorce-savvy mental health consultant.

What are some of the other divorce myths that you encounter?

What strategies have you found useful in promoting good decision making in divorcing people?

I look forward to your comments.

Tuesday, September 13, 2011

Research shows that witness training improves the accuracy of testimony

Traditionally, both judges and lawyers looked on witness "coaching" with considerable suspicion. Judges were concerned about lawyers subverting the judicial process by using their witnesses as a "mouthpiece" for the lawyer to improve their cases. Lawyers were suspicious of other lawyers for the same reason. No one considered the plight of the witness very much.

Fear of speaking in public is the single phobia endorsed by more than 2/3 of all respondents in surveys of the US public--no other fear comes close to these numbers. Testifying in court is not only "speaking in public", it is also accompanied by the very common fear that testifying falsely will lead to a jail sentence (I know of no research detailing the prevalence of this myth, but my guesstimate is that nearly 2 out of 3 witnesses believe it.) Lawyers who live their professional lives in the courtroom frequently don't appreciate how intimidating the setting and the jargon can be to someone experiencing it for the first time. And, when the witness believes that their children are on the line, the fear and pressure rise exponentially.

The research cited below nicely highlights the primary value of witness training: IMPROVED accuracy of the testimony! What Ellison and Wheatcroft found was that training witnesses about the rules and tactics of cross examination led to a REDUCTION in errors in responding accurately by more than 66% to complex questions on cross examination. Accuracy of answers to simple cross examination questions improved by 52%. Just as importantly, witnesses reported having the confidence to ask the cross examiner to clarify questions.

More than 25 years of teaching people how to testify effectively has convinced me that witness training, done right, not only helps the witness but significantly aids the administration of justice. This research confirms that belief. Of the hundreds of people whom I have trained, NOT ONE has ever said the training about how to testify effectively, especially how to handle cross examination, was a waste of time. Not one.

Now that the advantages of witness training to the system as a whole have been documented, there is no reason not spend the time to provide witnesses with the tools they need to testify accurately. Justice would seem to require it.

Ellison, L. & Wheatcroft, J. (2010). "Could you ask me that in a different way please?" Exploring the impact of courtroom questioning and witness familiarization on adult witness accuracy. Criminal Law Review, 11, pp. 823-839.