The Lawyer’s 6th sense – When to fight, when to settle 

In a speech recently delivered to members of the legal profession, retired Family Court Justice Linda Dessau spoke openly about her experience as a Judge and why she believed costly litigation would have been avoided in many cases had different lawyers been retained by the parties.

Whilst she spoke approvingly of most family lawyers, Justice Dessau said some lawyers gave “misguided advice, often at the start of the case, like ‘Just nick off with the kids’ or, ‘Just close all the bank accounts’ and that set up unnecessarily bitter and protracted litigation”.

Family law cases are often highly sensitive. Lawyers acting in this area have an obligation to employ a conciliatory rather than adversarial approach. If matters are not handled in this manner, issues more often become disputes, which later develop into drawn out legal battles that prove very costly for clients.

It is important to obtain sound advice early. Inaccurate initial advice can cause parties to believe unrealistic outcomes are achievable and only result in long-term emotional and financial loss. They may invest significant resources pursuing an application that has little prospect of success.

Justice Dessau also expressed concern for parties represented by lawyers who would not, or more concerning, could not identify the relevant issues in disputes and ran “scatter-gun” cases. It is unwise to use the court’s time wastefully by asking it to consider irrelevant material.

The court has the power to determine certain matters based on the relevant evidence available. Parties who elect to use the court as an opportunity to air irrelevant grievances with the other party (or any other person or entity for that matter) do so at their own risk.

Rule 12.2 of the Professional Conduct and Practice Rules 2005 requires a lawyer in Victoria to “assist a client to understand the issues in the case and the client’s possible rights and obligations.”

The same Practice Rules state that a lawyer “must not act as the mere mouthpiece of the client. A good lawyer will always give their client’s case a reality check.

The balancing of these Rules requires a skilled lawyer.

In exercising judgment independently, a skilled lawyer will confine the hearing to the real issues in dispute and “present the client’s case as quickly and as simply as may be consistent with its robust advancement”.

Put simply, a lawyer with sufficient knowledge and experience in family law will know what matters. They will know when to fight and when to settle and in so doing minimize the family conflict and financial loss.

The court can order costs against a party and/or their lawyer if they have acted recklessly or unreasonably.

For more information about what it means to be an Accredited Family Law Specialist or any family law issue, call Berry Family Law on (03) 9397 2488.