You Want This Lawsuit Served When?

Posted By Mark Baer || 14-Feb-2018

Imagine particular dates and holidays that bring you joy and that you associate with romance and pleasant memories. Now, imagine how you would feel if you were to experience something traumatic on one such date.

For example, imagine you're a parent and that your child died on Mother’s or Father’s Day, depending upon whether you're a mother or a father. How do you think that would impact the feelings and emotions you would experience on that date and when that date is mentioned for the remainder of your life? Do you think that the impact would be positive or negative?

When I first started practicing law, I remember having been instructed by my firm to advise the process server of good and bad dates and times on which for them to serve a party to a lawsuit. I was instructed to ask my client whether certain dates were “sensitive” for the above-referenced reasons. Then, while filing out the instructions for the process server, I specifically instructed them not to serve the paperwork on specified dates. Among other things, the reason I was directed to include such information in my instructions was because of how people tend to react.

A number of years ago at a bar association meeting, a colleague was describing the most contentious and costly divorce he had handled in his career. It just so happened that the Respondent was served with the Petition on Christmas Day. Is anyone really surprised by the result?

In any event, the attorneys for whom I first worked didn’t think their clients would appreciate the additional cost (financial and otherwise) associated with a lawsuit being served on a “sensitive” date.

Did the process server sometimes make a mistake? Yes. Did such a mistake have an impact on the case? Yes. Did the party served believe that the other party and/or their attorney had them served on that date deliberately? Yes. Even though it was a mistake on the part of the process server, would that change the association the party served would have with regard to that date going forward if they were to learn of such? Yes and No. Irrespective, they will still always remember that they were served with the lawsuit on that date. However, we would have proof that we instructed the process server otherwise and the other party and their attorney had made every effort not to have them served on that date.

Did clients sometimes specifically instruct me to have the other party served on a “sensitive” date? Yes. Did I know that in so doing, I would significantly escalate the level of conflict involved? Yes. Was I aware that the higher the conflict, the more time it takes to settle or otherwise resolve a lawsuit? Yes. Was I aware that when lawyers bill by the hour, that would mean that the case would cost all parties significantly more in total legal fees and costs? Yes. As such, did I feel a moral and ethical obligation to advise my client of such? Yes. If no laws or legal ethics required that I try and advise my client against such a thing, did I still feel that I had a moral and ethical obligation to advise my client of such? Yes. Do I recall at least one occasion on which my client refused to heed my warning and demanded that I have papers served on the other party on a “sensitive” date? Yes. Was the case unnecessarily contentious as a result? Without a doubt. Could I have refused to abide by my client’s demand and risk being fired or otherwise harming my relationship with my client? Yes. Would I handle things differently now? Without a doubt.

I’ve learned a great deal since then, most of which has little, if anything, to do with the law. Instead, I’ve taken it upon myself to better understand the nature of human conflict, family dynamics, human relationships and behavior, conflict resolution and management, mediation skills, psychological concepts, emotional intelligence skills, and other such things. The knowledge and skills I’ve since acquired and developed would enable me to better help my client, should I find myself in a similar situation today. Furthermore, my passion lies in conflict resolution and problem solving – not in conflict escalation and engaging in win/lose games. As such, I’d either fire the client or risk being fired if the client placed me in that situation today. And, considering the focus of my work, I very seriously doubt that such a vindictive person would even retain me at this point.

In 2015, I published an article titled Emotional Considerations Regarding Service of Process and shared it with my family law colleagues. The only response I received was from a then third year law student, who thanked me for sharing it and commented that it contained “the type of practical advice more law schools ought to be teaching.”

In case you’re wondering what prompted me to write this post, it was reading an article titled Holiday Heartbreak: Many people handed divorce papers on Valentine’s Day. In that article, attorney Mike Chionopoulos said, “Some people will actually pick Valentine's Day to either file their divorce on and have the other person served or to seek that day from the court.”

For the reasons stated above, that’s a huge mistake which those individuals will live to regret.

In his book De-Escalate: How to Calm an ANGRY Person in 90 Seconds or Less, nationally recognized peacemaker, mediator, and trainer Douglas E. Noll says the following:

As a mediator, I have seen the cycle of victimization play out over and over again. In many conflicts, both sides feel victimized…. The six needs of victims are:

  • Vengeance
  • Vindication
  • Validation
  • Being heard
  • Creating meaning
  • Safety…

The need for vengeance is powerful because it is based upon the reward centers of the brain. Vengeance, unlike many other emotions and affects, is anticipatory. We reward ourselves with little squirts of dopamine when we imagine punishing our tormentor. Dopamine is the neurochemical association with pleasure and learning. Dopamine circuits are why cocaine and heroin are so addicting. Those drugs mimic the effects of dopamine.

Because of our anticipation of righteous judgment against our enemy, we are spurred to action. The problem is this: if we are able to exact vengeance, we get no dopamine release. We receive very little brain candy for thumping the other guy. The effect is to feel depressed, let down, angry, and unfulfilled. We hold this belief about how good we will feel in righting the huge injustice done to us, and when retribution is exacted, we feel absolutely nothing. Even though justice has been meted out, we feel as if it has not. I saw this effect play out over and over again in my trial lawyer days. I represented too many clients who, after winning at trial, remained disappointed and angry at the outcome even though it was a legal victory. The win did not give them the release they were expecting. This was one of the main reasons I left the courtroom to become a peacemaker.

Vengeance drives emotional behaviors. Decision-making is flawed when people are under the influence of vengeance. Their perception of reality is distorted. Peace is seen as weak. Negotiation seen as capitulation on sacred values. Vengeance is the first, primal need of every victim….

Remarkably, if a victim’s need to be heard is satisfied, all of the other needs are satisfied as well. Even more remarkable, the need for vengeance disappears.

As a mediator, I’ve witnessed this occur time and time again over the years. Like Noll, I much prefer mediating and peacemaking than engaging in war games.