My Apologies

by Kevin Scudder May 01, 2013

Three years ago I took a Vow to do no more litigation. After twenty years of litigating I had had enough of the damage to my clients, and to myself, that I experienced in litigation. I developed a non-litigation retainer agreement and integrated the fact that I would not take cases to contested hearings or trial into my initial consultations with potential clients.

I did not notice a reduction in clients retaining me to work with them. Since taking the Vow I have, for the most part, been comfortably busy.

During these last three years I have never stopped learning. I have taken non-Collaborative cases and by keeping the focus on the clients and their interests, reached resolutions that incorporated their interests and needs. To the best of my knowledge my clients over this period have been happy with my representation of them.

In February, 2012 I did a one-day trial on a non-collaborative case only in the sense that we did not have a signed Participation Agreement. Everything else about the case was collaborative: we had a four-way meeting; we had a free exchange of information without formal discovery; and the co-mediators were Collaborative practitioners. Our clients chose trial because they could not reach agreement on the issue of maintenance (amount and length), and they decided to delegate decision-making on that issue to the Judge.   

And then came April 15-18, 2013, the official breaking of my Vow. This was not a pleasant experience. In fact, I have not experienced something so professionally repugnant in many years. Let me explain . . .

I took this case for three reasons: 1) I liked my client, a dedicated Father to a three year old son who had a parenting plan that provided him five overnights in a fourteen day period; 2) At the time he came in we had learned that my eldest daughter was accepted early decision to Oberlin College (have you seen the tuition at Oberlin?); and, 3) The attorney for the Mother was Collaboratively trained and I thought that we could facilitate a dialogue between our clients to reach a resolution, or respectfully come to a place where we agreed to disagreed and would have to have the court decide the issue.

After taking the case I called the other attorney, said I looked forward to our finally having a case together, and invited the attorney and her client to my office for a four-way meeting to introduce ourselves, de-demonize the attorneys and the process, and put together a plan for how to proceed. 

I was rebuffed. I was told “this is not a Collaborative case”. I was told that the Mother was all of a sudden “scared” of my client. Rather than building bridges, all bridges were burned right from the start.

I should have known at that point.

Yet I stayed in the case, my client and I having a clear discussion about whether I was continuing or would be referring the case to a real litigation attorney. I committed to going through this process with him. To be honest, at that point we did not know how bad it was going to get.

On the day of trial I gave my opening statement. In it I brought the 3-year-old son of the parties into the courtroom, talking about the benefits to the child of co-parenting, communication, parents on the same page, etc. . . .

When it was her turn, the Mother’s attorney stood up and said, “Your Honor, the nature of the beast is that I have to show that he (pointing to my client) is the lesser parent.”


So it went on for three days.

And now it is over, our judicial decision having been rendered.

Being over, I want to offer an accountability apology:

I apologize to opposing counsel for harsh words that I may have directed toward her. And for the hard feeling I had about her actions.

I apologize to my client for not finding the way to facilitate dialogue with his ex-Wife to come up with a parenting plan that suits his son.

I apologize to my Practice Groups, with whom I actively strive to develop my Collaborative, not litigation, skills.

I apologize to the Collaborative Community at large as doing this trial left me NOT walking the walk nor talking the talk of the work I strive to do.

And, I apologize to myself. That was hard for me to do. It was scary. I did not want to look at my emails for fear of more emails on this case. I do not want to feel those things again in my practice.

So to the Collaborative Community I ask this question:

For those Collaborative Practitioners who need to litigate because they do not have enough Collaborative cases, does litigation really have to be what I experienced? Is it possible to Collaboratively litigate? Please share your thoughts as I think this is an issue that is going to be part of the Collaborative community for many years to come.

Comments (2) -
6/13/2013 11:05:52 AM #

Kevin - We do forget what divorce litigation is like when we get away from it.  You certainly reinforced for me why I don't want to go back.  So you know, I wrote a piece about your article for the King County Collaborative Law blog at .
- Mike Fancher

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6/17/2013 10:17:44 AM #

Hi Mike.  

Thanks for your comment and your well-written piece posted for our local community.  I hope that many people read it and start a discussion on what it is like to both litigate and collaborate.

One thing I took from this experience is that Collaborators who litigate actually have a great opportunity:

To more deeply engrain the paradigm shift in their own selves (and thus become better Collaborative Practitioners) and to model a way of practicing law that impacts others in the litigation bar who had considered, but not yet committed, to take the Collaborative Basic Training and enter Collaborative Practice themselves.

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