[Source: Consult the Negotiator]
https://masternegotiations.libsyn.com/episode-9-chris-melcher
Celebrity Divorce Lawyer Christopher C. Melcher Explains How to Settle Smartly and Negotiate in Divorce to Protect the Brand
Mark Siegel interviewed Chris Melcher on his Consult the Negotiator Podcast, which provides essential strategies, tips and information for those wishing to become better negotiators, which is essential to becoming a better lawyer
Christopher C. Melcher is one of the top divorce lawyers in the country and is a partner of one of the best family law firms in California. He represents business owners, A-list celebrities, and trust beneficiaries all across California. To get to that level, he has to be an extremely honorable, honest, intelligent lawyer to be able to represent people at that kind of level. What separates Chris from others in his field is his calm demeanor, is his knowledge of the financial ramifications of a divorce, and his ability to be forward-looking about the process and not get too involved in the emotions that are inevitable in a divorce case.
Mark:
Chris also has a unique background because he started in criminal defense and personal injury, and he’s going to talk a little bit about how that experience has affected his experience as a family lawyer. Chris has presented approximately 150 continuing legal education programs to other attorneys, so he’s a mentor to many other lawyers, and he’s been recognized as the chamber’s high net worth top lawyers and really is an outstanding lawyer in person. Thanks again for being on the show, Chris, to talk about negotiation, something that’s often overlooked in our profession. There’s so much talk about trial advocacy, but we know that so few cases go to trial. To me, this is really the core of being a good lawyer.
Chris Melcher:
I agree. When I started, it was all about trial, preparation and advocacy, and as I’ve been doing this now 26 years, I’ve learned to avoid the courtroom and that the negotiated outcome is the best way to go. Sometimes we need litigation as the hammer to keep people in line, but we only have control when we negotiate.
Mark:
Right. Chris, how did you hone your negotiation skills? Was that something that you were good at growing up? Is that something that you learned from other lawyers or in law school?
Chris Melcher:
Actually, I learned it from my mom, and watching how she navigated conflict within the family or with others, and doing it diplomatically, a lot of listening and empathy and never getting embroiled in it. I saw that technique as being so effective. I didn’t understand it just growing up. But after reflecting on it, saw that that approach was extremely effective in resolving conflict. I’ve adopted that technique for my legal cases.
Mark:
Were you a mediator type growing up? Are you one who was able to help resolve conflict among your friends and family?
Chris Melcher:
Yeah. My dad was a great trial lawyer, and so I wanted to be like him and I was always interested in law. I knew I wanted to be a lawyer from a young age. Friends would come to me with legal issues, and this started, I remember, a buddy of mine in grade school, we’d get in trouble and be in the principal’s office and have to try and get our story straight, and people like him would go to me to figure out what’s the story here? How am I going to get out of this? I was like a jailhouse lawyer in grade school. Because I had that role and I was able to see things from different perspectives and bring a voice of reason. Friends would ask me to say, “Hey, what do you think about this?” I would listen to them and try and relate to what they’re going through, but also help them see the other side and try and bridge that gap.
Mark:
Chris, how do you negotiate differently than others in the family law field?
Chris Melcher:
Being objective. That is the hallmark here. The goal that I have is to see the case from the other side’s perspective. What many of us do as lawyers or professional negotiators, certainly we’re listening to our side and that’s where many of us stop. We don’t undertake the time to understand what does the other side need? What are they going through? What are they trying to accomplish? What are their obstacles? What’s their timing? I spend just as much time understanding it from the other side, and then to evaluate it through some common sense and good judgment, to say, “How should this resolve?” That’s what setting me apart from other types of lawyers who are traditionally just personalizing the dispute and won’t take the time to ever consider what the other side wants.
Mark:
Chris, a client comes to you, who is going through a divorce. That client is probably full of venom, anger, hatred, resentment. The client, himself or herself, may have substance abuse issues, the other side may have substance abuse issues, there may be abuse issues. How do you deal with the client coming in? Because the client may want you to take a hammer to the other side and just try to destroy them. How do you respond to that?
Chris Melcher:
This is the most difficult part of a divorce lawyer’s job, or any negotiators going through a high conflict dispute.
The easy way out is to identify with the client’s emotions and to just prosecute those. That is not effective, does no good to the client. The client will like it initially, but it does no good in terms of getting the client out of that toxic mess that they’re in.
It’s difficult to navigate because the client is, many times, exactly the way that you described and they don’t want their lawyer that they’re paying a lot of money to and trusting their problem with to be soft or weak or not believing them.
The first thing that I do is listen to them and understand what they’re going through, and then acknowledge it.
“Yes, client. I agree this is unfair. You should not be going through this. This is a terrible thing. I am so sorry that this is happening to you or your family.” Now that they feel that they’ve been heard, and then it’s like, “Okay, how are we going to pivot this now to where is your objective? Do you want to be in this dispute?” Because some people like it. It’s sick. But most people, normal people, would say, “Yeah, I want out of this.” Then it’s asking them for permission, “Can I help you with this? Do you allow me to help you with this?” “Yes, I want your help.” “Okay. Now, here’s my technique,” and I do want to explain to them that I’m going to be listening to the other side, and that’s a foreign concept to many of these clients.
They figure I’m going to be the gladiator and I’m going to slay the dragon, and so I need to let them know this is tactical.
The way I’m going to get you out of this mess is by listening to what your spouse wants and seeing if there’s common ground. Because if I don’t explain that step to them, they’re going to think that I’m double-crossing them, I’m not loyal to them, or I don’t believe them.
I want to bring them into that. Then now that I’m working that plan, there are fundamental elements of the relationship that are broken, and that’s why they’re getting a divorce. Those broken hearts of their relationship also keep us from getting a deal, and so I’m going to now start restoring those things.
Mark:
Right. One of the things that I think is typical is that I always like to say that clients hire lawyers like themselves. Somebody who might hire you and me, we tend to be focused on negotiation and the future and the outcome is very different on somebody who’s going to take a scorched earth litigation approach, are going to be screaming and going to be a hothead. Somebody who ultimately ends up with Chris Melcher is probably going to be a very different client, because otherwise they wouldn’t be on board with your approach, whether it’s the best approach or not. It almost is a self-selective process, I think, Chris, that somebody is drawn to you because of your calm, because of the way that you handle things. Have you found that to be true in your practice?
Chris Melcher:
Absolutely. I do think clients pick their lawyers a lot like somebody would pick a dog or a pet. I make that clear to folks at the beginning when they’re interviewing me to say, “This is my approach,” and to make sure that’s what they want, because it doesn’t do either of us any good if we’re not going to match. I’m more like a Border Collie, I’m smart and agile and quick and loyal and good to be around, but some people don’t want that. They want the vicious attack dog, and that’s not me. I don’t even know how to do that. I’m upfront with people. Usually, that comes across like, “I want a shark, I want somebody who can do this,” and it’s like, “Hey, I know those lawyers, and I can connect you with them and it might be a great match for the two of you. That’s just not me.”
Mark:
Sure. Chris, but in your field of family law there are lawyers, I don’t know if there are many lawyers, but there certainly are family lawyers that have that shark approach. When you’re negotiating with them, how do you deal with people like that, that are so different from the way that you handle things?
Chris Melcher:
That is common, and that’s a brand that some lawyers cultivate, is to be the cutthroat scorched earth lawyer. What I’ve seen, though, is just like with bullies in school. The bully is really lazy, they’re going to get their way through force and intimidation. But when it comes down to it, they probably don’t have a whole lot else to back that up with.
With the really aggressive, nasty lawyer, they’re also lazy, and they’re getting their way through intimidation and scare tactics, basically going to spend all the money of the estate unless they get their way. But when it comes down to it, if you go to court with them, more times than not you’re going to win.
What I take with that lawyer if I can’t get through to them on a personal level, that it’s just slow and steady like, “Hey, I see how you feel that way, but we’re going to go to court and let the judge decide.” Once I get a couple wins under my belt, then they’ve been exposed, and all of those threats and the bravado that they were saying earlier about how they’re going to win and get all these orders proved to be false, and they’re just standing on quicksand. That’s what I’ll do. Some of the lawyers, and I know many, many lawyers that are doing this work, I can talk to them privately and just be like, “Hey, this is Chris you’re talking to. You could drop that.” But some are in character 24/7.
Mark:
Right. Chris, what are the three biggest mistakes you see family lawyers make?
Chris Melcher:
The first mistake is identifying with the client. That doesn’t mean empathy. I mean taking on the client’s cause as if it were their own.
Lawyers that do that, I call them cheerleaders. They lack objectivity, they are unable to see the case for what it really is because they’re so invested in winning or believing the client that they have gigantic blind spots. The client likes it initially because they think foolishly that this is good advocacy, but it isn’t and it’s doomed for failure and it’s also really unhealthy for the lawyer to be that way. That’s the first one.
The second mistake is the lawyer not knowing enough about what they’re doing.
Law itself is complex and multifaceted, but family law, that much more so. We deal with every aspect of a person’s life, all the way from child custody and psychological issues to very complex financial ones.
The lawyers who fail to seek help and get the advice that they need over what they are negotiating or what they are litigating over, would be another big mistake.
The third mistake is not setting expectations properly for the client, and it is related to, number one, the cheerleader, but even lawyers that are objective sometimes will fall into this trap of really understanding what is this case worth?
How does one part fit with another, and what is the cost of litigation in terms of dollars for paying legal fees, and also loss of life and opportunity? And to put that up on a cost-benefit analysis for the client.
Mark:
Those are three great takeaways for all family lawyers of how to handle things differently. Again, it has to do with a client’s expectation of what a family lawyer can be or should be, versus the reality of what’s effective. Chris, I wanted to turn to the specifics that take place during a divorce proceeding. You have financial expertise, you’ve taught about it, you do seminars about it, and obviously it’s a very important part of your advocacy. I wanted to ask you, in divorces, how do you expand the pie when money seems like a zero-sum proposition in these divorce cases?
Chris Melcher:
I’m mostly on the moneyed side of the case, or what we call the end spouse. There’s typically one spouse in the relationship who had the money or made the money or controls the money, and then the other spouse who didn’t have that access. For my clients, many of them are business owners and professionals and they understand the costs of litigation. The first thing I’m going to do is tell them, “Hey, this case could cost you a million dollars, just in legal fees. Win or lose, you’re out a million bucks.” That may come in as a shock to them, but I’ll start breaking it down and explaining the costs of litigation, and if they agree with me that this will cost a million dollars, then I’ll tell them, “Well, I don’t want your million dollars. Use that to pay your spouse. You have an opportunity now before you spend that money to offer that money over and towards settlement because otherwise this is sunk cost.”
If the other side’s smart, which this takes a lot of people being reasonable all in the room together, which is unusual to occur, but I’ll make that pitch to the other side, saying, “Hey, my client’s going to spend a million dollars on this thing, we’d rather give it to you to fund a settlement.”
That’s one way of expanding the pie. The other way is looking at what we do over disputed funds. For example, they may be fighting over child support and big range of numbers between the two, and we just can’t agree on it, it’s headed towards court.
One tactic is to say let’s put that in a college fund for the kid, let’s put that in trust for the kid, because ultimately everyone’s at least saying outwardly, “It is all about the child.”
Now, no one believes that, but that’s what they’re saying.
“I want more child support for our child.” It’s like, “Okay. Well, if you really want to protect your child, you would stop the fight, number one, if possible. Number two, you would want to make sure this money goes to the child.” “Yes, of course, I agree with those two points.” “Okay. Well, here is a solution.”
Then there are bigger money cases where you have this funding available, but it’s like, “We’re going to take this pot of money that we’re fighting about, and rather than deciding who it goes to and which lawyers it goes to, we’re going to put it aside, that’s going to be the college funding, or that’s going to be a trust, that’s going to be a down payment on the house. If you fight, that isn’t going to be there.”
That’s another tactic. There also could be creative financing on deals where, again, we’re fighting over money, and that could be used to say, “Hey, I’ll buy a house for you. I’ll pay the house out over time.” Many of the clients, even though they’re wealthy, they can’t afford to pay a big chunk of money at one time, but they can afford to pay smaller amounts in monthly installments and that’s like a mortgage. We could structure that to say, “Hey, I know you want two million in cash right now. I can’t do that, but my client can buy you a $2 million house and pay those mortgage payments.” There’s just different ways of dicing this.
Mark:
Chris, how do you deal with the economic value of cash now versus IRAs that may compound tax-deferred, money now versus money later in these divorces?
Chris Melcher:
That goes back to listening. What I’m going to ask my client, because my client’s the expert on their spouse, and so I’m going to say, “Hey, is your spouse a long range planning type, or is your spouse money in the bank right now and is going to blow it within a year?” If they want money now and they’re going to burn it now, we’ve already spent it three times. Telling them all the attributes of an IRA and compounding interest in a retirement account that they can cash in at age 65, or whatever it’s going to be, is meaningless to them.
But if they’re a saver, a long-range thinker, then that may be more attractive to them. I’m going to be looking at what the other side wants, and match an offer that’s going to be attractive to them rather than thinking for them or planning for them. Because, hey, to me, I love all this retirement stuff. I do it myself, but not for everybody.
Mark:
Chris, a client comes in, high net worth individual or maybe not a high net worth individual, how do you, from the outset, determine the value of a case, the value of a claim?
Chris Melcher:
Well, there’s some analysis that certainly is going to go into this, and many times, it’s surprising to folks how expensive divorce is going to be. What we need to do is start looking through issue by issue, and then assigning some probabilities to the outcomes because what happens is that there is an asset, say it’s a business. Well, what is that business worth? That’s hard to value. Unless it’s a publicly-traded company that their shares in, we’re going to have some difficulty understanding what that value is. It’s going to be a range of values that we can come up with, and I can figure that out pretty quickly.
But then, there could be disputes over whether the business is a community or separate business if you’re in a community property state like California, because it may have been started before the marriage, if you are dividing a business in a high net worth divorce.
Now my clients going to say, “Hey, this is 100% mine. I don’t care what it’s worth. My spouse isn’t getting any part of that.” The other side is going to say, “Yeah, it was started before marriage, but it was worthless when you married my client. All the value is created during the marriage, and therefore, it’s basically 50-50.” We have to assign some probabilities to those outcomes.
If the business is worth a million dollars, I think there’s a 50-50 chance of it being community property, then I’m going to have to tell the client, “You could pay between zero and $500,000 to your spouse for your interest in this business, and there’s a 50% chance that happening, so you should offer $250,000 for that asset,” and we just go through the list, all through it, and say, “Hey, this …” Now I can tell the client, “This would be a reasonable settlement.
I can’t predict what the court’s going to do, but I can tell you that if you settled in this range, you would be doing okay,” and then we work backwards from there in terms of sequencing the offers.
Mark:
Chris, I know one of the approaches you take to rebuild this trust that has been damaged and harmed and that probably doesn’t exist in a lot of marriages is to make financial disclosures from the very outset, and that you’re candid and honest about the financial disclosure. You said you’re on the moneyed side more often than not. Two questions. One, do you get pushback from your client on that? Second, what if the other side won’t make financial disclosures?
Chris Melcher:
After giving a lot of thought to the process of settling a divorce case, I realize that we can’t just jump in there with their toolbox and start fixing stuff. Like we’ve been talking about here on the financial planning, it’s very easy for us to go into that mode and say, “Oh, client, you just need to do this and this, and here’s your settlement.” Well, people aren’t ready to hear that at the beginning. What I’m looking at is a relationship that’s broken down and it’s lacking communication, it’s lacking trust and it’s lacking respect. Those are also the ingredients we need enough of to make a deal.
We can’t negotiate with somebody we’re not talking to, that we don’t trust and that we don’t have respect. Now, we’re not going to get full levels of all those three elements, but we couldn’t get enough of them to make a deal. In terms of financial disclosures, these are required in California for a divorce, and I use that process to start rebuilding trust. Because at the beginning of the case, the other side is probably thinking, “Oh, this person cheated on me. They are liars, they have threatened to ruin me if I ever divorced them, they are going to hide assets, they’re never going to cooperate.”
Then here I come out of the gate with a detailed, honest financial disclosure that lays out things maybe they didn’t even know about. Now they’re saying, “Wow, I’m surprised. That wasn’t what I was expecting,” and now maybe we’re starting enough trust in that negotiation relationship to get through. Then I do the same thing with communication, I do the same thing with respect, to build on those elements to get enough of those to make a deal.
Mark:
You’re actually trying to repair the distrust that has occurred by your own actions. Even if your client doesn’t have trust, or even if the other side doesn’t have trust, you’re stepping in and saying, “Okay, I’m going to be the honest broker here from the outset,” which is really important in getting to a deal. Chris, one of the things that I wonder about is when you have first taken on a client and you’ve met with that client, what do you do next in preparing for negotiation? I want to talk about some of the nuts and bolts of actually negotiating the deal. What’s step one for you?
Chris Melcher:
Step one I think is setting the expectations with the client.
It’s doing that internal analysis to say, “Here is what you’re looking at, this is how long it could take, this is how much it’s going to cost,” and so the client understands what they’re in for and what they’re negotiating with. These are hot messes. It doesn’t necessarily work in a linear fashion. When the client comes in the door, it’s usually a crisis. Some people do plan this out. Bill and Melinda Gates have been getting divorced for probably two years before we heard that they were getting divorced. That’s unusual.
Most people, they’re fighting. Everybody knows they’re getting divorced, and they call the lawyers and right when something needs immediate attention, they’ve been cut off, they’ve been kicked out, violence has occurred. Though I may be working on all these steps contemporaneously. I can’t just go from step one to step two.
Mark:
Chris, when you are negotiating, how do you decide where to begin your negotiations? Let’s talk about financial, and then about, for example, child custody. Let’s say your clients is a high net worth individual and says, “Okay. Well, I think $3 million or $4 million is a reasonable amount to give my spouse, and I want the kids X number of times per week,” how do you decide proportionately over that where to begin so that you give yourself room to negotiate?
Chris Melcher:
Certainly, when we’ve done the assessment of what the client’s exposure is and what a good deal would be, we got to work the steps backwards from there to figure out what our initial offer is going to be so we can allow negotiations to develop.
I don’t like it when people come in too generous at the beginning because then there’s there’s no room to go up. We can never go down. It’s not like we can offer something today and never go backwards. That just doesn’t work.
If we come in too high, we have no room to negotiate, and people like to feel that they want to negotiate and or else they’re not getting a deal. It’s all the psychology of the steps. What I like to do is have my client accepting the other side’s offer rather than forcing the other side to accept my offer. That way, it makes them feel like they won. We’re going to build in some steps there, leave some room to negotiate.
Mark:
Yeah, I have the same philosophy. I like the other side to feel like they get the win as long as it’s good for my client. But a lot of lawyers want to go have the win themselves and insert themselves into the process. I think one of the things that makes you a top lawyer is you separate yourself out from the process. You’re not insecure and that you need to feel like you “win” every situation. A win is a good result for your client no matter how you get there, and I think that that’s really important. In some cases, Chris, you probably are using a third-party mediator. I’m wondering, when do you decide to go to a mediator in your cases?
Chris Melcher:
I want to bring in a mediator as early as possible.
What happens with these clients is that they are in a crisis, there’s uncertainty about where they’re going to live, how much money they’re going to have, whether they’re going to get cut off, whether they’re going to have enough money to afford to live, and that’s very stressful and uncertain to them. What happens many times in that situation is that they’ll run to court, and they’ll say, “Okay. Well, yes, we would love to resolve this case, but we have issues immediately regarding custody, or finances, maintenance, support that need to be dealt with, and so we’re going to file an action and have a court decide those temporary issues.”
That’s where most of these cases go off track, and they are going to spend a ton of money fighting over temporary orders, and now there’s huge bad blood, all kinds of wild allegations being made publicly in these court papers, and we have poisoned the well. What I like to do is get on the phone and say, “Hey, I understand your client has these needs. No one is cutting anybody off. There’s enough money here. We’re going to work this out. I’m going to listen to what you want and try to serve those needs as much as possible. Let’s stay out of court, let’s pick a neutral third-party mediator, usually a retired judge, to start managing this.”
If I can get buy-in on that, it’s super effective because then when something happens, and it always does, there’s some incident that happens, rather than running to court and thinking that a judge is going to help them, they can say, “Hey, let’s get on the phone with a mediator and see what the mediator thinks about this.”
Now there’s an outlet, somebody to hear from, so much more efficient than going to court. I want to get engage them in this mediation process as early as possible.
Some people aren’t ready for that, they’re scared about it, they don’t know what it is, they think they’re giving up control, and it’s just not being guided properly by the lawyers.
Mark:
How do you prepare your client for going into a mediation? They might not have seen the other spouse, they may be estranged from themselves, they may have to face the other side, or at least hear from the other side. How do you go through that preparation process, Chris?
Chris Melcher:
It’s important.
Now fortunately with mediations, we’re doing mostly what we call shuttle mediation. If we’re physically in the same space together, there’s going to be one camp in one conference room, and the other camp in the other conference room and the mediator goes in between, and the two never meet.
Same with Zoom mediation or video mediation, we’re going to each be in our own waiting rooms, and the mediator goes in between and there’s never a group meeting. There’s really no reason for it. That is protective of the clients, and so they’re not fighting and the lawyers aren’t posturing.
In terms of preparation, it’s understanding that the mediator doesn’t have powers on a decision-maker, he’s a facilitator, but also that the mediator is going to have different styles and may really hammer on the client to say, “You need to do this, you need to do that and be very evaluative,” and so the client knows where that’s coming from, is to basically force both sides to change their position. Then also to understand where to draw the line. There are certain areas that we know hey, we’re not compromising on this point, and that just becomes an anchor in the negotiation. Sometimes, many times you have to have those drawing the line.
Then also for me, making sure that we’re not overworking folks, because I’ve seen these mediations go on until midnight, I’ve lost my cool, I’ve sworn, yelled at people, made bad deals that late at night. Once we get past around 5:00, I’m saying, “Hey, getting too close to my bedtime here and I’m getting grumpy, and we’re going to abate this session, we’re going to reschedule and come back,” and many times you’re going to hear, “No, we got to get it signed tonight.” It’s like, “Hey, if this was a good deal here at 5:00, it’s a good deal tomorrow at 10:00 AM.”
Mark:
Chris, what are the normal types of issues that normally lead to the parties to get to impasse?
Chris Melcher:
Many times, it’s the same kind of triggers that cause them to break up, and it’s a feeling of one side controlling the other. You’re telling me what to do. That’s why sometimes we have to let the other side come up with the offer, because anything we think of is going to be viewed as a form of control or manipulation. It’s not being ready, the timing’s just not being right. Most people, normal people, do want to settle their case but they’re not ready to do it. They need more information, they need more time, they need to process. When we get to an impasse, again, part of this respect and communication process is to say, “Hey, I understand. You’re stuck on this, you feel super important about this. Let’s have some time go by. I don’t want to force you into this. I want to listen and understand your position more.”
That’s one technique. The other technique is just letting them speak their mind. I’ve learned that in a case. We were trying this case, and we’re like, “Why is this going to trial? This is so dumb,” and the lady just wanted to talk to the judge. Once the judge figured that out, he said, “Just let her talk for 20 minutes, no objections,” and she just talked all the horrible things of my client, their affair, everything was all out, and she sat down and then the case, it was done after that. Sometimes we’re in an impasse, it’s just, hey, either take a break and reset, or just let them speak their mind.
Sometimes we can work around those issues. If they say, “Hey, I need this custody plan, or I need this house,” sometimes we can actually use it to our advantage.
Because if you think about this tactically, if your negotiating partner is saying, “I need this, this is the most important thing to me,” well, maybe we can use that against them to get what we want.
Mark:
In terms of the perennial take it or leave it offer, you got to take it or leave it, I want X million of dollars or I want this or I’m going to court, how do you respond to that?
Chris Melcher:
I would normally, going into a negotiation, have my exit plan. If this thing goes south and there’s no deal, I already know what my next move is, and hopefully, I have some leverage like that in the case. If I’m representing the out spouse, it’s easier because they’re going to say, “Hey, you want to take it or leave a deal, I’m going to leave it and I’ll be in court immediately asking for more support and probably getting more support than I’m willing to take right now, so sure.”
Basically, with a take it or leave it situation, my inclination on that- anytime anyone says take it or leave it, I’m inclined to say, “I’ll leave that.” Call their bluff.
Mark:
Just more matter of fact. Right, Chris?
Chris Melcher:
Yeah. Hey, I’m sorry you feel that way. I guess we’re not going to make a deal. Nice doing business with you.
Mark:
Right. What are typical non-economic terms you see in a divorce settlement?
Chris Melcher:
Well, mostly around kids. We can’t put a price on the time with children, and that’s where a lot of these negotiations fail because they want to argue over custody plans, and many times they just don’t understand how this works because they’ve never lived as a separated family before. They don’t know what it means or why she getting four nights a week and I’m only getting three nights a week. That makes her more important in the kids lives, and it’s like, “No, it doesn’t.”
There’s part of an education process that the client needs to understand on these custody issues about what it really means to have a relationship with a child, and it’s not necessarily the schedule that you follow.
The weekend time may be better than the week daytime when you’re trying to get kids ready for school and chores and all the rules. The weekend time actually may be better for you. Maybe I’d rather have Saturdays and Sundays and let the other parent have Mondays to Fridays. Part of that is through education. The other economic part is that if a spouse felt out of control in the relationship, they felt manipulated, controlled, even abused, sometimes they want to get even in the divorce case. They want to feel I’ve got you back. If that’s going on, we may need to let that play out a little bit and let them feel like they’re in control for moment, and they may have to learn that it’s not going to work because the judge isn’t a forum, provide a forum for that, and is this going to be more costly for them.
Mark:
Chris, when clients are coming to you or coming to the other side, they’re probably not in their best frame of mind, they’re probably not in the best frame of mind mentally, probably not physically. They’re going through an extremely difficult time, and that’s probably true in any type of divorce case. But what do you do when your client or the other spouse has substance abuse problems, has mental health problems, has all sorts of issues, that adds another layer to the divorce? It’s easy to deal, easy, but it’s relatively easy to deal with a rational person on the other side, a rational client, but there’s so much that’s going on, and this is an added layer.
Chris Melcher:
I think most divorces have a mental health component to them, and because these folks got together, loved each other, were married or had child or children together, and now they hate each other. Maybe there’s good reason for it, maybe somebody changed, maybe somebody has a mental health issue, maybe there are substance abuse problems, which definitely adds a much higher level of complexity to it. As part of that listening process, I really want to understand what’s going on with the other side, and to see how they process information, because if they’re an obsessive personality or they’re narcissistic, then we’re going to have an approach developed around that.
Chris Melcher:
When I’m working with a client, many times, definitely going to listen to them, but then I’ll ask them, “How do you see this playing out? How do you think it’s most effective to approach your spouse with this problem? What if we offered this, what do you think the other side would do?” They already have all these answers, and so now they’re educating me, but they’re also seeing there’s no easy solution. Because they may come initially and say, “Why aren’t you going to court? Why aren’t you going to the judge? Why aren’t you sending off a nasty letter?” Then I’ll say, “Well, how do you think that that’s going to play out?” Then they’ll say, “Well, of course, my spouse’s going to get super angry and fight and do all this,” and I’ll then say, “Okay, well, does that serve your objective?” “Man, not really.” “Okay, what if we tried it this way?”
Mark:
Chris, I wanted to ask you now some of the differences in family law cases versus other types of legal matters. You began your career in criminal defense and in personal injury, what did you learn from those areas that helped you as a family lawyer, and how did those areas differ from family law?
Chris Melcher:
The emotions are much hotter in family law than they are in other areas. In criminal, well, some of these career criminals are basically professional criminals. Their job is to steal stuff. When they get caught, they’re not so upset or surprised about it. They may have stolen 100 times and only got caught once, and this is the cost of doing business. They’re actually more professional many times going through the court process than you would think. Because this is, again, what they’ve experienced before, they know how it works and what the consequences could be. In a divorce case, many times it’s the first time these folks have ever been into court, and there’s so much personal stuff at stake.
Then they don’t take any accountability, no responsibility at all. That’s what’s a little disappointing. Once I get to know the client a little bit better, I usually will hit them with, “Well, what is your role in this conflict? How did you contribute towards this? You did marry this person, you did have a child with them,” and so they can start understanding, hey, they need to be accountable for their own actions. Now, the other thing is that with boundaries, in criminal, there was a physical boundary between me and most of my clients because they were in custody. There was a glass wall between us, and also some of these folks were dangerous, so I learned to keep my distance. In family law, though, we see many lawyers who overly identify with clients. There’s no boundary and that does no good for the client.
Mark:
Chris, how do you maintain boundaries with your clients? How do you keep them from constantly texting you, emailing you, calling you, because they’re looking for you for guidance? You’re a lawyer, but you’re a part therapist, and you’re really their main source of support. How do you set boundaries and live your own life?
Chris Melcher:
Well, I haven’t been very good with that. I’m probably not the guy to ask on that one. I think we’re running a concierge-level service for our clients. It’s a boutique firm. If I’m up, can’t sleep at 4:00 in the morning, I’ll respond. That’s an area that I need to work on. If it’s a crisis, I’ll walk away from the dinner table and take the call. These are weaknesses, and in my approach, I know my clients expect that or at least want that, and they pay very well for that level of service. I know we have clients in different time zones, we have clients who have very difficult schedules, so sometimes I do have to take those calls.
But that’s not ideal, and it’s something that I would like to see different with my approach. B
But also, I do understand that these are crises that this client’s going through, it’s very difficult and personal for them, they want that attention, they want to have access to their lawyer 24/7 to bounce ideas off of or things develop.
But it’s a two-way street here. I’ll answer the call at 4:00 in the morning, but when I send the bill, it’s going to get paid immediately by the client because they respect and acknowledge the fact that I sacrificed all my off time.
Mark:
Chris, what are most challenging types of family law matters to settle?
Chris Melcher:
International custody disputes, or interstate custody disputes, or with a state like California that’s so big, inter-county disputes that you’re going to be in traffic for several hours doing an exchange. Those are heartbreaking, because I think children do best when their parents raise them, and to be raised by their parents, their parents need to be in the same community. When they live in different communities, the child’s really going to be raised by one parent and have the other parent absent, and many times that’s not by choice.
It’s because one parent moved away maybe to get away from the other parent, or a parent moved away because they had family or job opportunities or commitments in that other community. Those cases, nobody wins, the kids lose, they’re very expensive, they’re heartbreaking, there’s no middle ground. If you’re the middle ground between the US and England, it’s probably somewhere in the Atlantic Ocean. When there’s no compromise.
Mark:
You’ve represented celebrities in divorce. How did those celebrity divorce cases differ from, I want to call them, non-celebrity cases or your people who are not in the limelight?
Chris Melcher:
Well, one thing that I’ve learned is that we’re all the same. We have different levels of problems, but the problems are the same when it comes down to it. We are fearful of our future. What is life going to be like without this partner that we had? Are we going to make enough money to pay support? Are we going to get enough support to live? What are kids going to think, and how are our kids going to deal with it? What are our peers, family members and friends going to think about it? We all come to the table with those same problems whether we’re a celeb or not.
Now, the difference really between a celebrity case and a non-celeb case is that celebrities have figured out how to navigate these things efficiently.
We rarely hear about celebrity divorce in the paper. We hear about them being announced, but we don’t hear about them fighting typically. They’re too smart for that. They have a brand to protect, and they know that having all of their personal stuff exposed, their finances, their private messages are going to be toxic to their brand, so they settle.
But the rest of us regular folks fight, and that’s what’s astonishing to me. The people with the money are smart enough to have the advice and understand the toxicity of this process to settle, but then people who don’t have an average income will spend all their money fighting…
Mark:
How do celebrities keep those text messages, keep the stories out of the media, because the media is all over them to get this information? They want the information right away, and you’ve seen some of that if you look at Angelina Jolie and Brad Pitt. There are always stories, there’s always trying to get information. How do they keep that away from the media?
Chris Melcher:
Some of it comes in the selection of a partner. If the celebrity was being careful when they selected their mate, they would have picked somebody who was discreet and wasn’t going to share all that information, and that partner is smart enough to know to keep in the good graces of the celebrity because you’re going to get more support, they’re going to get a bigger settlement if they keep on the good side of the person. That’s why most of the cases, we never hear about until they’re over. Then we have these wacky cases where we have somebody who is completely unbalanced, doesn’t care and is going to expose everything that they can.
They’re probably selling information leaks to the press, and doing this in the most outrageous way, the most destructive way possible. I’ve seen that happen, and I’m not even sure what the game plan is. I’ve talked to folks like that when they’ve interviewed me and tried to hire me. It’s like, “Okay. Well, this is what you want to do. What’s your exit plan? Are you thinking you’re going to scare the other side with these text messages and then shake them down for a settlement or something like that?” Many times, they don’t even have a plan.
They’re just so angry, they want to get back and they don’t understand they’re hurting themselves, they’re hurting their own image even if they’re not a celebrity themselves. But more importantly, they’re losing an opportunity to get a really generous settlement if they would just cooperate and be reasonable, but instead, they want to expose and fight and do all this stuff, and at the end of the day nobody cares that much. They may make some headlines for the moment, but at the end of the day, nobody’s going to really care that much, and all they’ve done is hurt themselves.
Mark:
Got it. I just have a few more questions, Chris. This has been outstanding, so thank you. What do you think will occur in family law over the next five, 10 years in terms of negotiating settlements? How do you think COVID and the environment during COVID will affect things if at all?
Chris Melcher:
Well, one of the great things about the shift to video is in the efficient delivery of legal services. All the court appearances, all the meetings, the mediations were in person. I have clients all over the place, I’d have to fly to them. Or if it was downtown LA court, I’d drive there. We’re talking hours of travel time, very expensive to transport these lawyers to these meetings.
Now doing it by video is so much more efficient. If I have an appearance in LA and it’s via video, I’m only charging for the time that I’m there with that judge that might be 15 minutes instead of five hours.
Now it’s become more accessible for folks to hire legal counsel. It’s reducing the burden of that. It’s increasing our ability to connect with people. Rather than waiting to schedule an in-person meeting in different cities, we can just jump on the video and do it. Then with mediation, we’re not stuck in some room eating cookies for three hours waiting for the other side to come back with their offer or counter offer. I think that’s here to stay. I’m hoping more people embrace it and continue using it even after we’re able to meet more in person. But that’s a big part of it.
We have looked at creating more processes for divorce and making this process less expensive. The problem though is that there are so many issues, they’re unique to each family, they’re complex, that it’s not like doing your simple tax return on TurboTax where you just go and answer a bunch of questions to spit out your 1040. It’s a lot of complex stuff. I know there’s folks working on it. But for most people, it’s going to be traditional representation with a lawyer going forward, but with the efficiency of video.
Mark:
I know that you have a great relationship with your clients, and some of them, certainly, I’m sure stay in touch with you after the divorce is over. How are your clients normally doing a year, two years, five years after the divorce?
Chris Melcher:
I love to hear from clients. I had one client recently and just touched my heart that I had helped years ago when her daughter was young, and then she sent me the announcement of her daughter’s graduation from college.
Stories like that, when I keep in touch with clients and I hear how they’re doing, really help me serve new clients because there’s so much uncertainty about, well, what’s going to happen with this divorce and break up on the kids? What about this custody plan? I’ve seen divorces with very young kids, now with adult kids.
I’ve even talked to those adult kids sometimes to get their perspective on things. What it comes down to is that children are resilient. If they’re loved by their parents, they can get through this, and whether the custody plan is three nights, four nights, five nights a week may not make that much of a difference later to them, and they let some of this small stuff go and focus on the stuff that’s important and having a relationship with their kids.
