Why Divorce Lawyers Fail

Almost everything that clients and courts ask lawyers to do sets them up for failure. And as a result, you're also set up for failure.
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Image of a business work place with papers on the table
Image of a business work place with papers on the table

Divorce lawyers fail because we ask them to. (Yes, of course some are idiots. Idiots are everywhere. This essay is why good divorce lawyers fail.)

Almost everything that clients and courts ask lawyers to do sets them up for failure. And as a result, you're also set up for failure.

Most lawyers go to law school because they want to help people. Gone are the days that directionless college grads could go to law school because it was easier than medical school but could still net them a lot of money.

The median income for lawyers in California is $52,000 a year, with an average of $74,000. It's not peanuts, to be sure, but it's hardly a get-rich-quick scheme. And law school is more expensive than ever.

So when these eager young graduates leave school, the dreams of working to advance civil rights or advance legal aid often go out the window. I moonlighted at a coffee house the first year I was in practice, just so I could afford groceries.

As a result, most of the optimistic world-changers end up in private practice, where getting and keeping clients is the ultimate measuring stick of success.

The problem for divorce lawyers is that most divorce clients are unhappy. At best, they're good people in a very rough life transition. They can be nasty, demanding and quick to complain to your boss or the Bar Association.

It's very important to keep them happy.

For the first few years of my practice, I tried to actually be a counselor at law, not just a lawyer. I attempted to help people evaluate the strengths and weaknesses of their case. I asked them to evaluate the short- and long-term costs and success rate (or failure) of different legal maneuvers. I was an excellent attorney.

Clients hated me. "I thought you were supposed to be on my side," they'd yell when I suggested that a costly deposition wasn't worth their money or time. "Why are you telling me I might lose my case? You're supposed to win my case," they'd protest when I tried to explain that the other lawyer was also going to make an excellent argument for the opposite result and that they needed to be prepared for that.

My boss, Carl Porto , the best mentor I've ever had, would defend me to these same clients who'd complain to him, adding that they'd hired Carl, not some junior associate. "She is working much harder on your case than I ever would've," he'd reply. He was impressed with my work ethic. And now, I'm impressed with the work ethic of the newly minted lawyers I work with, too.

But at some point you realize that if you want clients to be happy, at least in the short term, you need to agree with them. Even when they're wrong. Expensive interrogatories you don't need? Sure. Subpoenas to every bank in town, even though we already have the bank statements? Absolutely. Private investigatoreven though fault doesn't matter? Let me make a referral.

Once I started agreeing with clients, I got more hugs. And holiday presents. My clients loved me because I told them what they wanted to hear. I stopped trying to talk them out of unnecessary court hearings and legal proceedings. I did exactly what they asked me to do when they asked me to do it. After all, that's part of being a "zealous advocate" and that's what the lawyers' ethical rules require: Do what the clients say and follow the Rules of Professional Conduct.

You will get a lot more gift baskets, and a good bit of the yelling will stop.

So I quit. I quit being a lawyer. I miss going to court and doing cross examinations. Oddly enough, as a divorce mediator, I still get lots of yelling and plenty of conflict, but now I actually have the right tools to deal with all the conflict, and lots of potential solutions instead of just running to court, which is the solution of litigation attorneys.

I make less money. I have more free time. Clients don't call screaming on the phone.

Divorce mediation and collaborative divorce allow me to do my best work. I can inform clients of the law without giving advice, and use the law to open up the discussion between the parties so that they can decide what they think about the arguments instead of me trying tell them what to do (never mind that my litigation clients actually hired me to tell them what to do and then protested vehemently when I did just that).

In mediation and collaboration we work to get the clients to a resolution that is tailored to their circumstances and which keeps them in charge. It lets them make the decisions.

I'm no longer a yes-man.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana's divorce blog on the Huffington Post