When lawyers come at divorce from different mindsets, it can add a layer of difficulty to getting a divorce resolved. This is especially true if one of the lawyers is what’s known as a “scorched earth” lawyer — one who wants to fight at all costs, who favors litigation, who believes that only one side can win in a divorce and seeks victory in the courtroom, no matter what it takes. In many cases, the scorched earth lawyer will use a “one-size-fits-all” approach which can lead a couple straight to the courtroom.
If you’re a person who wants to divorce collaboratively, or at least wants to negotiate with your spouse on a settlement to avoid the courtroom, the scorched earth lawyer may be an obstacle to that goal. While you can’t pick your spouse’s lawyer for him or her, convincing your spouse to drop a scorched earth lawyer might be the most productive move you can make in getting your divorce to the finish line.
It’s important to know why people pick a scorched earth lawyer to begin with. In a word? Fear. People going through divorce fear the unknown, fear what it will cost them financially and emotionally, and feel that they need to fight. Scorched earth lawyers prey on this fear, convince their clients they need a fighter to protect their interests, and convince them in the process that negotiating is just “giving in.”
Higher Financial and Emotional Costs
The irony is that selecting a scorched earth lawyer brings with it the financial and emotional cost many of that lawyer’s clients are seeking to avoid. A scorched earth lawyer will employ tactics that antagonize a client’s spouse and increase the cost of a divorce.
Unnecessary subpoenas, interrogatories, requests to produce, and depositions can all be utilized as weapons by scorched earth lawyers. These tactics create a climate in which cooperation is challenged and even discouraged. Both sides can become so incensed, with the climate that the scorched earth lawyer creates that they actually want a courtroom fight.
How Best to Approach
The best way to approach a person who retains a scorched earth lawyer is to point out the myriad costs involved with such a divorce. If children are involved, bring up the toll that a courtroom fight would take on them. If you’re willing to give your spouse certain things in a negotiation in exchange for what’s important to you, that can be worth pointing out as well. Collaborative divorce, mediation, and negotiation give the parties much more control over the outcome than fighting in front of a judge who ultimately decides.
Knowing what your spouse wants out of the divorce is integral to knowing why he or she selected a scorched earth lawyer in the first place. It’s very possible that he or she selected a fighter thinking “that’s how it’s supposed to done” — and if your spouse wants to avoid a long, contentious, messy divorce, there are much better ways to do that than gearing up for a court battle.
Bringing in Outside Help
It can also be helpful to bring in a mental health professional trained in collaborative law. If your spouse can see a value in working with that person — especially if he or she helps children involved in the divorce — it can sell your spouse on the collaborative process. It might be the thing that gets your spouse to drop the scorched earth lawyer, find a complementary collaborative lawyer, and get your case on track for a more civil divorce.
You may not be able to do this alone — depending on the dynamics around your divorce, your spouse might not trust you, and might think you’re doing this to gain some advantage. If there’s a family member or close mutual friend you can appeal to, that may help you reach your spouse in a way you can’t.
When one of our clients is faced with this situation, we offer advice, strategy, and knowledge to help make the case to take the scorched earth lawyer out of the occasion. We know from past experiences that it can make a difficult process even more difficult. And while we can steer our way through the obstacles a scorched earth lawyer presents, whether by heading off a courtroom battle or providing the best defense in that arena, we’d rather work for you more efficiently to get you past your divorce.