I recently went to war with another attorney. The case began, both of our clients were angry. He sent my client the standard 30 Interrogatories (written questions for my client to answer in writing under oath) and 82 requests for documents. Most of those document requests were for the last five years of paperwork. I sent him similar requests. I received almost no documents. My client provided the requested five years of paperwork; his client gave me six-eight months' worth. I wrote him a lengthy deficiency letter. He responded with a nasty, personally attacking letter to me, telling me he would provide no more documents because he didn't think I needed them and giving me his personal assessment of what type of person would insist on them. I sent him a letter telling him his response was not OK. I have to tell you, his response really damaged our relationship. The case settled. Last week I saw this attorney at a social event. He told me he was sorry for being, not nasty, but snarky (I had to provide him that word). He then went on to tell me "but" I was wrong, I didn't need all those documents, and he has trained his staff not to send deficiency letters when opposing parties don't fully comply with his requests, unless he has a good reason for wanting the documents. I had two take aways from this exchange.
First, it didn't feel like an apology No real apology begins with "I'm sorry, but...." Then again, I never expected a true apology from this person. Luckily, I have been reading Brene Brown's new book, Rising Strong (which, by the way, I wholeheartedly recommend). She makes a forceful argument that people are usually doing the best they can. I know that's a difficult concept here in the Trenches, but I invite you to try it. I have, and it has lowered my blood pressure and helped me to sleep at night. At any rate, I digress. I thought about Dr. Brown's premise as I pondered my colleague's apology, and I came away with the conclusion that the apology was sincere. The incident of which I speak was months ago. Obviously, it bothered him enough that it has stayed on his mind during all that time. He valued the relationship with me enough that he felt he had to say something by way of apology. He simply is not the kind of guy who apologizes, so he doesn't know how. He was doing the best he can. It helped me accept his statements for what they were - an apology. Is he my favorite person? No, but again, knowing he did the best he could helped me accept his apology for what it is and forgive him.
Second, the whole exchange got me to thinking about the way we do things. There are very few times those of us here in the Trenches really need three to five years of documents. Yet, we ask for them regularly, write deficiency letters about them and file motions to obtain them. Why do we do it? There are a few reasons. First, it's habit. Simply put, it's how we've always done things. Part of the reason for that is that we know that well before someone makes the decision to divorce, they start planning. We have no way of knowing how far ahead of the divorce announcement that is. We don't want to miss the smoking gun of financial or emotional planning, so we ask for documents for many years back. We also know that if we don't, and it turns out our client's spouse was planning that far back, our client will be unhappy and they may sue us; our insurers like us to ask. That whole malpractice spectre is the second reason. Even though we love and support our clients, we're a bit afraid of what they will do to us if they don't know everything and if we leave any stone unturned.
The third reason is that because the other attorney sends us 82, 117, or more requests for documents (luckily, we're only held to 30 interrogatories), and our client is suddenly buried under this onerous demand on top of everything else, our client wants their spouse to feel the same pain. Believe me, I have requested only those documents I knew I needed, and at least half the time, my client is furious that I have not made their spouse feel their same pain. Many times, it does no good for me to explain to my client that I have thought deeply about their case and requested only those documents that I feel we need, and that the other side's attorney obviously has not, but when they do, they will reach the same conclusion. The client is feeling the pain of complying with the requests and wants their spouse to be identically burdened. The client understands most of those documents are unnecessary, and they don't care. Does that mean I send out another set of document requests? No. OK, I'll admit that I have on occasion, when no amount of explaining works. In the those cases, though, the client has come back later and told me I was right, they just couldn't see it at the time. Of course, this is thousands of dollars later. Still, I regret not holding fast and not doing as they asked when I know I shouldn't.
I've said it before and I'll say it again, the client needs to understand why they hired a lawyer. Did they do it to inflict maximum pain on their soon to be ex-spouse? If so, I'm not their girl; there are still attorneys out there who will do that. Did they do it solely because they didn't understand or want to be bothered with the paperwork involved in getting divorced? Did they hire a lawyer for their expertise, experience and counsel about what is necessary to shepherd them through the process? If it's the latter, then all those darn documents probably aren't necessary. If it's the latter, then the client and the lawyer should be having deep conversations about what they want from the process, what they hope to achieve and how to do it. They then should tailor those discovery tools to meet those goals - NO MATTER WHAT THE OTHER SIDE DOES. Only then can we effect real change in the process. Here in the Trenches.
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