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  • Inside Track
    August 11, 2011

    Divorce: Working through the client's self-defeating behavior

    Clients come to your door after getting divorce advice from Aunt Minnie, the neighbor, and do-it-yourself websites. How do you help your clients understand that their "tunnel vision" gets in the way of their long-term best interests?
    Charles Phillips Pamela Lager

    By Charles I. Phillips, Philips and Gemignani, Waukesha, and Pamela G. Lager, Avatar Client Loyalty Group LLC, Milwaukee

    Aug. 17, 2011 – Today, your clients are bombarded by more information than ever before. You compete with “experts” who pop up not only next door, but through electronic media channels. About 30 years ago, Aunt Minnie’s expert advice was based on her friend’s divorce last year in northern Wisconsin. About 10 years later, expert advice was derived from the women and men in the consciousness raising group or playgroup down the street, as they shared divorce, lawyer, and settlement stories. Today advice and, hence, competition comes from everyone and everywhere. Your prospective clients, current clients, and past clients are bombarded with everyone else’s divorce experiences and outcomes. To further challenge family lawyers, the court system has created web-based applications that allow the public the privilege of “do-it-yourself” divorce.

    If everyone seems to get a great settlement using anecdotal information as a guide, and the remainder of the public manages their own divorces for a $10 web fee, who needs you, the family law practitioner? More importantly, when that one person chooses to hire you, how do you maintain control and move the case along to create a result that is the best you can do with the facts at hand, and ensure you have created a referral source?

    To achieve that goal, help your clients understand that their first reaction and conclusion to what they hear is not always in their long-term best interests. To do this, instruct your clients on how their decision process may be swayed by one or all of the following:

    Divorce: Working through the client’s self-defeating behavior
    1. Anchor and adjustment
    2. Concept of fair
    3. Importance of feedback

    The anchor and adjustment concept

    The Anchor and Adjustment concept is based on the studies done by Tversky and Kahneman.1 Understanding this concept directly impacts your ability to assist clients in moving from, or adjusting a preconceived position or anchor. What this means in your cases is the following: when people have specific expectations set by the media, Aunt Minnie, or the lawyer on the web, you first have to pinpoint that anchor (expectation) and work to be credible enough to assist them in moving and adjusting that anchor based on your expertise. Clients arrive with a cognitive bias – and often use that single piece of information as a basis for all of their future decisions.

    That same bias also creates a sort of “tunnel vision” where your clients narrow their perceived choices to the one they latched onto – and they are unable to hear your proposals and consider other options rationally. They focus on the one outcome they are familiar with or learned from friends, family, or the media, to the exclusion of the important advice that you have for them. We agree, you know these nuances are what they pay you for, but their brains are working counter to their own best interests and will thwart your success in resolving their case in the best way possible.

    Think about the client who arrives and says, “I have to have indefinite maintenance.” And you are baffled as to why they are fixated on that single concept when there are a myriad of ways to achieve their interest. Take the time to call out this anchor and explain why this is a normal but potentially self-destructive reaction. Invite them to work with you to adjust that anchor by explaining what their perceived interest is and then help them to widen their ability to consider other solutions, such as a maintenance buy-out or Section 71 payments.

    Therefore, your job is to explain to them what is going on in their brain, and help them to adjust their anchor. You must make their thinking visible to move them to a place that allows you to do your best job with the facts at hand.

    The concept of fair

    This is another area that trips up otherwise sane and rational people. Studies demonstrate that most people would rather walk away from the table than take an “unfair deal,” even when they have no investment in the transaction.2 In the United States, we place a high emphasis on the concept of fairness. We will go to great lengths to ensure equity and decency – even to our own detriment. Often participants in experiments (and litigation) will walk away from an offer rather than participate in what they perceive is an unjust deal. But isn’t something better than nothing? And don’t we know from experience that sometimes the first offer may in fact be the best offer? This reality makes no difference to the irrational emotional brain sitting on the other side of our desk.

    Now here is your work: you can mitigate this with process and relationship. Work to redirect the client to the concept of fairness as a process versus fairness as a result. People are more likely to listen, be thoughtful, and work with what is difficult when their relationship to the process is perceived as fair, by allowing them a voice. You are being paid for your expertise, but here is where you have to involve your clients and teach and learn as you go – together. The only way most people in these situations can set aside the strong drive for “fair,” and to listen and be able to do what is in their own best interest, is if you involve them in the process. If they say the process was fair, they are more likely to choose a more rational result based on your advice. This is counterintuitive in that they are paying you for expertise (often by the hour), and you are taking time to involve them in the process. You have to share with them why you are doing this – to create a partnership that ensures the ability to work together towards their interest. The result you create is a strong bond with your clients, and in turn it will enable you to solve their issues more effectively.

    The importance of feedback

    This concept is strongly linked with our concept of fair. In order for people to feel fairly treated, a strong factor is their perception of having a voice. Did they have a voice in the process? There was an experiment conducted that tested lawyer satisfaction with their criminal clients.3 The convicted criminals were asked to rate their attorneys on several factors. No matter the crime or sentence, the clients all focused on the process, i.e. how their lawyers dealt with them, almost as much as they focused on the outcome. The lawyers who spent more time with their clients listening, discussing issues, and offering a collaborative experience were rated higher no matter what the outcome in the case. The respondents focused on process. Was my voice heard? Did I feel I was able to express my concerns? In short, did I feel fairly treated in the process?

    Integrating these concepts into day-to-day work with your clients will take time, effort, and practice. In making a client’s thinking visible to them, explain their natural but flawed irrational thought pattern, which causes them focus on narrow options that may be counter to their best interests. Work to obtain their agreement to avoid the natural pull of the irrational. Enlist them as a partner in working with you to achieve a result that is to their advantage. Your clients will appreciate this help. This is most likely a time when they are not their best selves. They are overwhelmed with advice from Aunt Minnie and the Internet. More information does not mean more wisdom. When you offer these thoughtful insights to your clients, you are not only helping them solve their legal matters, you are providing them with tools for life. In short, you need to help your clients overcome their brains and explore their interests unrelated to the anchors and biases with which they arrive.

    In a world that allows us to map our genes and predict the weather, the principle of counter-intuition is one that we need to be aware of in order to avoid irrational self-defeating behavior.4 Your gift to your clients of helping them survive the divorce with a new mastery of their destiny is a gift that will keep on giving, and ensure that you rose above the noise to make a difference in their lives.

    About the authors

    Charles I. Phillips is a partner with Philips and Gemignani, Waukesha. Ms. Pamela G. Lager, is a managing member of Avatar Client Loyalty Group LLC, Milwaukee.

    This article is published courtesy of the State Bar Family Law Section’s August 2011 Wisconsin Journal of Family Law. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.


    1 Amos Tversky and Daniel Kahneman, “Judgment under Uncertainty: Heuristics and Biases,” Science 185, no 4157 (1974): 1124-1131.

    2 Werner Guth, Roth Schmittberger, and Bernd Swarze. Titled “An Experimental Analysis of Ultimatum Bargaining,” the study was published in the Journal of Economic Behavior and Organization 3 (1982): 367-88.

    3 SWAY by Ore Brafman and Ram Brafman pages 119-121.

    4 Think Twice: Harnessing the Power of Counterintuition by Michael J. Mauboussin.

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