In a recent custody proceeding, my co-counsel and I picked up on the fact that the father and mother were noticeably absent from the child’s birthday photos the father’s counsel introduced in evidence. Relying upon a hunch, we explored this topic in cross-examination. In her ruling, the judge indicated that her disgust with the fact that the father did not attend and prevented the mother from attending the boy’s birthday party significantly impacted her decision. It was a calculated gamble which paid off, and the client was ecstatic with the payoff and the result. It was influential in the judge’s decision, and it reflected well on us. It also barely ranked in the top twenty-five of the most helpful things we have done for our clients in the past month.
Less visible, but often more helpful, are the other twenty-four moments when we have effectively counselled clients outside of the courtroom in ways to resolve their cases and avoid trial and/or help their chances of success in trial by making reasonable and thoughtful decisions prior to court. Counselling is defined as “advice; opinion or instruction given in directing the judgment or conduct of another.”[1] This is a forgotten aspect of our profession, but in family law, is perhaps the most important. The judges in our region seem to agree with this notion. To paraphrase a rather famous and very helpful settlement conference speech from one of the finest local judges in Northern Virginia, the Honorable Burke F. McCahill, we are attorneys and counsellors at law, and the latter is every bit as important as the former. We have an obligation to our clients not only to share our legal knowledge but also to give sound, prudent advice which clients should follow to improve their chances of achieving their goals.
Taking such advice is not always easy. It might involve not relocating your young children closer to your extended family and friends. It could also involve (and often does) taking down your social media accounts in their entirety. Finally, it might involve compromise in a tough situation which you analogize to “giving in” or “losing”. We don’t give this advice because we don’t like you, don’t want you to relocate, don’t want you to enjoy up to-the minute tweets from your Twitter-sphere. We do this for a living, and we have a very good understanding of how your actions will help or hurt your case. And we don’t control your spouse, so we cannot advise them to do the same. We are on your side, and this counselling comes from a good place.
So while we are not mental health professionals, licensed clinical social workers or professional counselors, counselling is actually part of our profession. I would submit it is the most important part of our profession. So please consider this next time we ask you to take down your Facebook page. Your friend’s impressive treadmill pictures (distance AND time) will be available for you to “like” when your legal process comes to an end.
[1] Dictionary.com
Christian Lapham is a shareholder representing clients in domestic relations matters. He can be reached at 703.525.4000 or clapham@beankinney.com.
