Why Family Law Inns Are Special
The Bencher—September/October 2018
By Judge Keven M.P. O’Grady
The Johnson County Family Law Inn of Court in Olathe, Kansas, just celebrated the successful completion of its fifth year. It has grown from a startup to an Inn with more than 80 members. We have excellent participation from the judges handling family law-related cases. The Inn includes a mix of experienced and new family law attorneys, emphasizing lawyers with fewer than 10 years of family law practice. We have been platinum four out of our five years.
Our Inn meets monthly from September to November and January to April. Members who attend all meetings can complete two-thirds of all their CLE requirements, including all of their ethics hours. We have monthly meetings in small groups and a well-attended annual social where several members of the appellate courts join us. This of course describes many successful Inns across the country, so why did we create a family law specialty Inn of Court?
Family law practice is not like other practice areas. It is high stress in a different way. Many clients are demanding, but in a divorce or parenting dispute, the demands are highly personal and emotional. Most clients are unfamiliar with the legal system. They are confronted with the loss of a marriage, of relationships, or time with a child. The bedrock social structure of their life, the family, is broken. The opposing parties share deep emotional connections. Lawyers working with these clients must manage both the professional and psychological tolls exacted by this calling.
Balancing work and personal life is difficult when clients might call with a child exchange dispute at 9:30 p.m. Family lawyers are particularly prone to vicarious trauma as they are helping people work through the most stressful period of their lives. Many lawyers overextend themselves with nowhere to turn. They might not have anyone to help them deal with practice management issues. While starting out in family law is tough, staying in it is harder. Even experienced attorneys begin declining to take “contested” cases because of the high levels of conflict and stress.
Law offices dealing with family law are often small. Many practitioners are solos. The burnout rate is staggering. Family law is an area in which many young lawyers start. However, without the benefit of other lawyers in a firm, they might receive little or no mentoring. Most successful family lawyers settle most of their cases so they are not seen in the courtroom as often as the “Rambo” lawyers are. Younger, newer lawyers are often seeing the least-proficient attorneys in the courtroom. Many successful family law lawyers are handling higher asset and more complex cases, which means new lawyers don’t meet and work with them. Making connections and networking is a struggle.
Family law is not often an emphasis in law school. While students may get training in the legal aspects of family law, they rarely receive vital education in the social and psychological aspects of the practice. Most family law attorneys did not go to law school expecting to practice family law even though these cases make up a large portion of cases actually litigated in most state courthouses. Most general jurisdiction judges had limited exposure to family law before taking the bench.
Many judges handling all types of cases have noticed declining civility. This has always been a problem in family court. Ill-trained lawyers confuse obstruction and combativeness for zealous advocacy. “Old school” or “hired gun” tactics become easier than having hard conversations with emotional people. Despite being the area of law that has perhaps the most real-world impact on the most people every day, family law is not something many lawyers aspire to do. It’s the “easy stuff” to work on between “real” cases.
In criminal practice, many defense lawyers started in a prosecutor’s office. Both sides know and respect one another. They appreciate the other’s role. In civil practice, many organizations have been created to bring the like-minded and adversaries together to promote professionalism and good practice. But family law is localized. Opportunities to share and grow are not easy to find.
Family law is different from some practice areas in another significant way: the large number of unrepresented litigants. Young lawyers are well-trained to work with competent opposing counsel but very often are the only legal professional in their case. The ethical and professional issues arising from working with non-lawyers can be daunting. As increasing costs of representation outpace the financial capabilities of many court users, family law attorneys need help adapting to a new business model.
In 2013, a group of attorneys and judges in Johnson County, Kansas, decided to do something. After five years, we can genuinely attest that the creation of a family law specialty Inn of Court has made a significant impact. The change in culture is both noticeable and positive. We have witnessed an increased focus on civility and professionalism among those joining. While substantive legal matters are often discussed at monthly meetings, small groups meet regularly. It is in this setting that mentoring relationships are fostered. These smaller meetings are often roundtable discussions. Young lawyers ask for advice and direction from the more experienced. Newer lawyers develop connections with experienced lawyers. Before long, self-selected mentoring occurs through phone calls, emails, and other meetings. Newer lawyers develop peer relationships. They begin to mentor one another. They get that sounding board that they were unable to find in a small or solo practice.
New lawyers are exposed to higher-level issues. Many would not have the opportunity to consider, let alone discuss, access to justice, best practices, self-care and vicarious trauma, and interdisciplinary issues. Without the Inn, it would be difficult for them to get feedback and suggestions from the bench. Before electronic filing and email, it was not uncommon for young lawyers to often be in the courthouse where they might have a moment to personally interact with a judge. To help foster that connection, our Inn offers “View from the Bench.” Any Inn member can watch a trial from the front of the courtroom. The lawyers are apprised in advance of the issues that will be discussed at the hearing. The judge might discuss with them in advance the pre-trial order or other procedural issues as well as the legal standards that will control the decision. The lawyers then hear the arguments and evidence as a neutral. As they observe the trial “from the bench” they can appreciate what good advocacy looks like, what is helpful to the court (and what isn’t), and the lawyers’ demeanor and professionalism. Participating lawyers report that seeing a case from the judge’s perspective had an impact on how they prepared their cases and their clients. They have a better appreciation for what judges need to hear and how to present it in a helpful way.
At Inn meetings, lawyers hear the bench’s expectations of civility. Without mentors, younger lawyers sometimes lack the tools to explain to clients the benefits of civility and professionalism. They hear that successful lawyers value collegiality and that you can be a zealous advocate without losing your soul or your mind, and they hear how to deal with unrealistic clients—it’s okay to tell a client “no” sometimes.
When the Inn began, one young, small-firm associate joined. His firm regularly took family cases, but the senior lawyers did not often handle them. That job fell to the younger lawyers. The firm’s litigators espoused a scorched earth policy, even in family cases. Every issue is a battle; every battle is a war. Emotional clients deserved an even more emotional argument. Not surprisingly, this young lawyer was not having the success he had hoped. After some time in the Inn, his attitude changed. He stopped accusing opposing parties of dishonesty when there was simply a difference of opinion. He stopped pursuing clearly inappropriate arguments just because the client insisted. He focused on issues. Soon he began to see that he was having more success in and outside the courtroom and that his peers began to work with and respect him. Experienced attorneys began treating him differently. He no longer had discovery disputes in every case. Simple issues were resolved amicably. He became a better lawyer, and his clients got better service.
The change in culture has been evident even among lawyers who are not Inn members. Non-members have started to realize that the high-conflict style doesn’t work. They can no longer bully the younger lawyers who are members of the Inn. One lawyer had a terrible reputation for his aggressiveness and highly conflictual style. When he started having cases with young Inn members he found that this style was no longer effective. These young lawyers had a better grasp on what was important and what helped the court make better decisions. They had more confidence in their understanding of what was expected and valued. Consequently, the high-conflict lawyer realized that if he didn’t change his ways, he would no longer be a successful family law practitioner in Johnson County, Kansas.
Another change has been a renewed commitment to public service. Most lawyers are givers. We want to help; that’s why we became lawyers. New lawyers don’t often know where to look for opportunities to help. They can be isolated. They are the lawyers most directly dealing with the unrepresented, and they want to provide affordable service to those that want it.
We promote access to justice in several ways. Our Inn requires membership in our local bar association. The Inn encourages and fosters a growth in limited scope representation. Helping new lawyers to start a limited scope practice and to do it ethically, has increased public access to legal advice. We have seen a growth in domestic case managers as they have mentoring opportunities. More lawyers are offering to work as guardians ad litem and as alternative dispute providers.
We have seen an increase in lawyers willing to provide pro bono service also. New lawyers benefit from the exposure to different types of cases and the mentoring available, but they need to do so in ways that are affordable. The Inn participates in our District Court Help Center’s Volunteer Attorney Project. A particularly successful aspect of that work is the monthly Night Court. Unrepresented parties often find it difficult to miss work for simple hearings. Many, if not most, divorces and parentage cases without lawyers are resolved by agreement. If a case without lawyers is fully resolved, it can be set on a 5:30 p.m. docket. For the Night Court docket to run smoothly, the unrepresented parties’ paperwork needs to be in order. Inn members volunteer to attend Night Court, where they meet with each couple and review the paperwork for completeness. If something is missing, they are able to immediately help them, thus avoiding another court date. Each volunteer spends 5 to 10 minutes per case. The judge is able to quickly work with the family, court staff can instantly process the paperwork, and litigants are often finished in less than one hour. While this is a great service to the community, the lawyers learn what the judges need and expect, which helps them draft better pleadings. They have a chance to talk with judges and, critically, court staff, in a more informal setting. Our Inn members are enthusiastic supporters of Night Court, many stating that it’s one of their favorite moments at the courthouse.
Professionalism, ethics, civility, and excellence are the guiding principles of the American Inns of Court. While we can’t know if the founders anticipated specialty Inns, and specifically ones focused on family law practice, the Inn of Court model is particularly well-suited to advancing these principles in this vitally important area of law. The family law-specific Inn succeeds in promoting all four principles. Most importantly, however, the benefits flow far beyond the courtroom and individual offices. Better family law practice leads to real and meaningful benefits to families. A family law Inn can and does make a difference.
Judge Keven M.P. O’Grady serves on the Johnson County District Court in the Tenth Judicial District of Kansas. He is a Master of the Bench and a past president of the Johnson County Family Law Inn in Olathe, Kansas. He has also served as a member of the American Inns of Court Program Awards Committee.