The most frustrating part of litigation, especially family law, is also the most difficult thing for attorneys to deal with and explain: how one party can behave unfairly and “get away with it,” even temporarily. On a daily basis, we deal with opposing attorneys and litigants who behave outside the bounds of family law and social norms, and we help clients overcome exaggerated and outright false allegations. Our clients are understandably upset and have many questions when the other side files a motion or sends a letter containing false allegations not based on fact.
Lawsuits, by definition, are a clash of different perspectives. Consider the classic question: Is the glass half-empty or is it half-full? Our language contains so many ambiguities that a single event witnessed by two people can be honestly perceived and described very differently simply by different word choices. The gap between perspectives widens when one side is dishonest or has a mental health issue. For example, in a case of violence, an attacker may insist that they are a victim if they cannot recognize due to dishonesty or mental illness that they were the aggressor and that the true victim was merely acting in self-defense.
Projection, or blame shifting, is a concept describing a person who accuses others of an attitude or behavior of which the accuser is actually guilty but denies. For example, a person who is habitually rude may constantly accuse other people of being rude while denying being rude themselves. Blame shifting is a common occurrence in family law cases. Many times, when a spouse or parent accuses the other parent of bad behavior, the evidence will show that the accuser is guilty of the same or worse behavior.
It can seem very unfair to have a mountain of uncontroversial, independent evidence supporting one’s claim then learn that the other side has filed a response denying everything. However, a person who makes a legal claim has an obligation, called the "burden of proof," to produce evidence in court that their contention is right. The burden of proof comes with a risk: a risk of non-persuasion. Consider the extreme example of a mass shooter. Often the mass shooter is recorded on video and captured at the scene of the crime, holding a weapon and surrounded by empty bullet shells and the carnage of the evil act. However, in court the shooter is allowed to assert a plea of "Not Guilty," and if that happens, a trial is necessary and the government must prove the shooter's guilt beyond a reasonable doubt, at the expense of the victims who must relive the trauma and at the cost of the taxpayer, even though the whole world knows what happened. Every person in the United States has rights, including the right to an attorney and the right to a trial. Those rights come at a cost, including the expense of a lawsuit and trial even when the appropriate outcome may seem obvious. That is our system.
There are many less extreme scenarios that can be very frustrating. A custodial parent who is owed child support may finally go to court to ask the other parent to be ordered to pay what is owed, and the owing parent may falsely claim, "The child lived with me that entire time." A spouse who needs support alimony may go to court to ask for help and the other spouse may drive up to the courthouse in a car with over a $1,000 a month car payment and claim, "I can't afford to pay alimony." I went to court to obtain emergency custody for a mother after the father had violently abused their son. At the emergency hearing, the father's attorney pointed her finger at my client, the mother of the abused child, and shrieked, "But she got a DUI three years ago!" as if the mother's past conduct excused the father from harming their child.
No matter how strong you feel your case is, you cannot take anything for granted. You must prepare your case to prove each aspect of the case beyond a reasonable doubt.
Here are three tips for dealing with high conflict situations where the other side is spreading misinformation:
1. Get help. Individual therapy is critical. Litigation is expensive and stressful. Therapy can help you identify things about the situation that you can control and things about the situation beyond your control, so you can focus on the elements that you can control and be at peace with the unknowns and uncontrollable element. Therapy is completely private, so you can talk about anything without worrying that it will be used against you in the lawsuit. Therapy will not completely eliminate the anxiety of a high conflict case, but it will help reduce your anxiety, and you will make better decisions as a result.
2. Stay focused. Set a reasonable goal for the outcome of the case, and make a plan to get there. Work on the things that you can work on, including preparing to testify, gathering your evidence, and taking the high road when the other side is playing dirty. By establishing a reasonable goal that is supported by the facts, you can stay focused on your plan without being distracted by the antics of a desperate opposing party who will say and do anything.
3. Use qualified professionals. Hire a lawyer that you can trust who is capable of taking the case all the way. Be wary of any attorney who guarantees you a specific outcome. If possible, hire a lawyer who limits their practice to your type of case rather than a "general practitioner." Important attributes of a qualified attorney include focused training for situations like yours, certification in the specific area of law, and trial and appellate experience. If your case needs expert testimony, don't cut corners to save money if you can help it.
Although the full range of bad behavior by a dishonest opposing party is not entirely predictable, an experienced, skilled trial lawyer can help you stay focused on the facts that matter. This means gathering your evidence early on and making your case as strong as possible. We treat every case as if the burden of proof is beyond a reasonable doubt. We put each case together and move forward, over and through the obstructive, deceptive behavior of the opponent. When the other side tries to mislead or distract the judge, we show how their misdirection is part of their refusal to recognize what really matters.