Blog Posts


February 6, 2019
Dealing with Depressed Parties Requires Special Measures

Our firm, Hartley Law, APLC, deals almost exclusively with cases arising in the Family Code, with some cases and causes of action involving the Probate Code, where the two codes intersect.

Most of the cases we see, therefore, are intensely personal and all involve an element of sadness: loss of a marriage, loss of a spouse, child custody disputes, domestic violence disputes, disputes for custody of abused elders, and so on. While we also do a lot of work on complicated cases involving support and distribution of property, those more business-like issues grow out of a divorce proceeding for the most part – and that, too, can be distressing to the parties. Divorce involving a business or house both parties have put their lives into for many years, raises frightening questions for the parties: Who gets the business? The house? Will that person be able to buy out the other party’s interest in the business? In the house? And so on.

As a direct result of those losses, and uncertainty regarding further potential losses, we see many different emotions from our clients and opposing parties. Very rarely, during the proceedings, do we see joy (that sometimes comes later, right after the sense of closure and relief). Almost always, anger, betrayal, grief, fear, and various combinations of those emotions are evident from the beginning and generally throughout the proceedings.

Some parties descend into depression from that combination of emotional punches. Because depression affects that party’s functionality, if a party is depressed and not getting adequate help, that party’s inability to participate in the process makes the entire process more difficult for everyone involved. This is especially troublesome because that party can be sanctioned for “refusal” to comply with statutorily required tasks, including providing code-compliant disclosure and discovery responses, which will result in that party being sanctioned – most often monetarily – by the Court. Sometimes that “refusal” to participate and comply with court orders will result in a loss of custody, as well.

If our client is depressed, we at HMCL make extra efforts to ensure that he or she meets all the requirements of the code and the Court. We have to follow up twice as thoroughly with depressed clients. A client who is not responding to us adequately raises instant red flags. We try very hard to encourage clients who have trouble responding to us to seek therapeutic intervention – though that may seem an unnecessary expense, a good therapist will indirectly save that client thousands (perhaps tens of thousands) of dollars in attorneys fees. The reason for that is a more cooperative and functional client can participate with counsel and save us a lot of time, for which that client has to pay, as our time is our only inventory. A cooperative and functional client can obtain documents for us which will help them, rather than forcing us to go fishing for those helpful – often required, other times necessary to our client’s interests – documents or witnesses. We undertake extra, additional efforts to ensure our client, through us, meets all deadlines, all disclosure and discovery requirements, and complies with all court orders.

I’ve had suspicions, many times, that opposing party has been depressed. This invariably operates to the eventual benefit of my client, particularly if the opposing party has an attorney who is satisfied with letting his or her client comply, or not, as the client chooses. Often I have a client who KNOWS opposing party is depressed; and just as often, I see an opposing counsel who doesn’t recognize that malady, and who doesn’t do the additional work required to protect the depressed client. He or she simply assumes the client is not cooperative and absolves him/herself of responsibility. Depression and noncompliance on the part of opposing party will drive up fees for our client in the short term, as we become the laboring party in the case; and in the end, much of those fees will come out of opposing party’s share of the community estate, because that party will be found, by the court, on our application, to have been obstructionist and not cooperative.

It’s NOT MY JOB to ensure opposing party’s compliance with the law. It’s NOT MY JOB to try to excuse opposing party’s noncompliance with the law. That’s opposing counsel’s job – and too often, opposing counsel doesn’t even recognize that his client has a problem.

I will capitalize on opposing counsel’s failures. That IS my job. I will capitalize on opposing party’s weaknesses. That IS my job.

But… sometimes it’s sad.

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