The Future of Family Law?

A good family-law attorney approaches a divorce case with rigorous attention to detail, a strong understanding of finance and property issues, and a readiness to deal with quick changes in circumstances. Who could disagree with that?

Perhaps no one, and these matters were thus common ground in a provocative session for students this week, with presentations by Dean Joseph D. Kearney (“10 Things I Learned During My 28 Days as a Divorce Lawyer”), Milwaukee lawyer Thomas St. John ’72 (“5 Things Any Lawyer Should Know Even Before Taking the Case”), and Milwaukee County Circuit Judge Michael J. Dwyer (“3 Things a Law Student Should Know About Family Law”). But, despite a great deal of common ground, the speakers’ views did not seem entirely in accord.

The basis for the discussion was a case that the Dean handled on a pro bono basis a few years ago in Illinois for a high school classmate. The focus of the Dean and Attorney St. John was primarily on litigation points, and there were many similarities in their lists. 

For example, this was the second item on Dean Kearney’s list: “The best thing you can do to settle your client’s case favorably is to prepare diligently for trial.” And this was second on Attorney St. John’s list: “Know how to try a case – they don’t all settle.” (St. John estimated that 90 to 95 percent of divorce proceedings are resolved by a settlement.)

Both also stressed the importance of a lawyer’s having a full understanding of a client’s situation when it comes to property and business matters. Being knowledgeable in real estate issues, tax implications, and an array of similar aspects of a divorce case and being systematic in compiling the details can be keys to successful representation, both said, although the importance of each matter will vary according to the context. Attorney St. John recalled prevailing in some cases largely because the other side was represented by a lawyer who was not versed in the specifics of the matter.    

While the points were no doubt of substantial interest to the audience of about 70 students (and presented in an entertaining and engaging way — I would stand behind saying that even if the Dean weren’t reading this), Judge Dwyer’s points painted the picture of trends in family law in the broadest fashion. And it was here that, although the time constraints did not permit full exploration of the differences and the presenters were careful not unnecessarily to disagree with one another, there seemed to be some differences between the lawyers and the judge.

Following the David Letterman model, all the speakers gave their lists in reverse order, and each gave one more point than advertised. For Judge Dwyer, the points were:

3) The litigation model is right for only a small percentage of divorce cases.

2) The future of family law is in providing competent limited-scope representation.

1a) More than 80 percent of litigants in family court are not represented by lawyers.

1)  Historically (prior to 2003), law schools have not prepared students for the practice of family law.

Dwyer credited the Marquette Law School for being part of changing that history, with an emphasis on negotiation skills and the like. It was evident that the Dean and Attorney St. John at least, while scarcely denying the value of such skills, were not prepared to put them on a par with trial preparation in the hierarchy of importance for a lawyer representing someone in a divorce case.

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