High-Conflict Cases: Q&A with Randall Kessler

By Randall M. Kessler

Randy Kessler is the founder of Kessler & Solomiany Family Law Attorneys in Atlanta, Georgia. He has over 25 years’ experience in family law matters, including divorce, child custody, and child support. He has taught at Emory Law School’s Trial Techniques Program and John Marshall Law School, and has lectured for the American Bar Association and the American Academy of Matrimonial Lawyers. Mr. Kessler served as the Chair of the Family Law Sections of both the American Bar Association and the Georgia Bar Association for 2011-2012. www.ksfamilylaw.com

Are high-stakes cases taxing for every family law attorney or do some attorneys thrive on this type of work?

Family law cases are taxing on every attorney – whether the stakes are high or low. An argument could be made that low-profile or low-income cases might even be more taxing. The nice thing about high-profile and high-income cases is that everyone involved will be okay. They may not be as good as they were before, but if there are millions of dollars to divide, then every lawyer should have the idea in the back of their mind that their clients are going to be okay. There are many lawyers handling cases in which people can’t afford to pay their mortgage, their car payment, their Visa bill, and their lawyer – those cases are much more stressful. High-stakes cases are stressful because you don’t want to make a mistake when the dollars are big. However, people can afford to pay for you to spend extra time figuring it out and to hire forensic accountants, business valuation experts, and psychologists.

From my perspective, high-stakes divorces are not more taxing. The only thing that would be more taxing is if I let myself experience pressure because a client is famous or has a lot of money and they’re used to getting everything they want. That’s the psychological aspect. I can deal with it, but if you can’t, then these cases aren’t for you.

Lawyers should take solace in the fact that high-dollar cases mean everybody is going to be able to eat, remain sheltered, have transportation, and get an education for their children. High-net-worth cases are not taxing in the same way as other family law cases, but they are taxing in that there are certain things you need to know. If you don’t handle high-profile and high-income family law cases regularly, then you need to take your time and get outside help from financial professionals and other experts.

Speaking further about putting pressure on yourself, how do you keep the stress of a high-conflict case from bleeding into your personal life?

You want to make sure you give the right advice and do your job properly. One way I do this is by hiring great people. We try very hard. The main reason our firm has 14 lawyers is so that when there’s an issue and I or another lawyer aren’t sure about something, we can walk into each other’s offices to discuss it. We can say, “You don’t know anything about this case, but pretend you’re the judge hearing about it for the first time. Am I missing something? Is my client being overzealous? Are their expectations realistic? Do I need to adjust their expectations?” Part of the way we resolve it without letting it bleed into our family life is by making the case our family’s problem – meaning our law firm’s problem – rather than just one lawyer’s problem.

As far as it bleeding into our personal life, that’s a very tough issue. I once did a seminar for college law students and someone asked, “How do we not take the cases home with us? How do we forget about it at the close of a business day?” The answer that came to me was, “You can’t.” If you were going through a divorce, would you want to hire a lawyer that stops at 5:00 pm and says, “I can’t think about these cases anymore.” You do think about them. If clients are going to pay us $500-$700 an hour, then maybe we should take their calls at home and their cases should be important to us.

I help resolve and minimize the stress by sharing the burden and responsibility with others in my office. It can be stressful, but it’s the price you pay to be in the profession.

How do you set boundaries with a high-conflict client, particularly one who may have a personality disorder, such as narcissistic, borderline, or paranoid?

The words narcissistic and paranoid come up in almost every initial consultation. It seems like everybody thinks their spouse is narcissistic, but I think that word gets confused with controlling or successful. Many successful people have traits that can be considered narcissistic from a layman’s point of view; someone who is aggressive, thinks it’s all about them, and wants to keep moving forward. I interpret it more as personalities who want to be in charge. Successful people usually are or want to be in charge, and have done a pretty good job of being in charge. It’s difficult for them to turn over decision-making to someone else.

On the other hand, I find that many very successful people actually respect and appreciate expert advice. They didn’t get to where they are by thinking they know it all. The most successful people in the world are successful because they have really good people around them. I consider myself part of the client’s team; they may have good public relations people, they may have a pilot, and they may have a chauffeur. They hire people who are good at what they do. Once they understand that they’re hiring me because I’ve done this before and they haven’t, or I’ve done it a lot more than they have, it usually works out.

The main thing you have to realize is that you’re there for a purpose; you’re not there to do the client’s bidding. If they want a yes-man to say yes to everything, then that’s not a job for me – and it shouldn’t be for any good lawyer. You only have one reputation and you can lose it by pursuing crazy avenues or unrealistic goals just because a client is rich and says, “Go forth and make it so.”

How do you handle a client who thinks you should be at their beck and call 24 hours a day because they’ve hired you?

You need to lay down the law and tell them that they’re welcome to hire other lawyers if that’s what they want. There are times when it’s important to talk to a client from a strategic and legal point of view, and there are also times when it’s important to talk to them from an emotional, psychological point of view. That’s part of family law, and not just high-profile, high-wealth individuals – that’s everybody. People going through divorce are stressed out. In any other sort of lawsuit, clients can go home and talk to their spouse about it. Obviously, in a divorce case people cannot go home and say to their spouse, “Let me tell you what my lawyer just said.”

You have to draw a line. It’s easier in lower-income cases, because you can explain to a client that they are being charged every time they call or email. They need to consolidate and save their questions so that they don’t run out of money. However, that strategy doesn’t work with high-profile clients or high-wealth clients because they have the money. Spending five or six hours talking to their lawyer about what may be the most important business transaction of their life – that is, their divorce – is money well spent. If they want to talk, we’re going to listen. Lawyers are not cheap and when a client says, “I understand and respect that you are going to charge me and I’m willing to pay,” then we have an obligation to listen.

I don’t understand lawyers that don’t accept phone calls and don’t return phone calls. I understand there’s a time limit to the day, but if you accept a case that’s going to be time-intensive, then you either have to commit to not taking other cases or to having more people in your office. We have 14 lawyers so that if a case requires three or four lawyers and two or three paralegals, we have the ability to handle it. I’d much rather have three lawyers on one case than one lawyer on thirty cases. You share the burden amongst peers and colleagues that you respect within your office. You make sure you have resources available for when that big case comes in.

Landing a multimillion-dollar client is a dream for many family law attorneys, but not everyone is going to be successful with high-stakes divorce. What personal characteristics and professional experience do you need to be successful in handling high-stakes or high-conflict divorce cases and clients?

Let me start with an old cliché that’s true for a reason: be careful what you wish for. Yes, it’s a dream. Many people dream of becoming a professional athlete, but I wouldn’t wish it on my worst enemy – being that famous for a few years and then spending the rest of your life as a has-been. It’s not necessarily the best thing in the world.

You have to recognize that representing high-profile or high-wealth people may be good because they can pay, but it’s ten times harder. I don’t celebrate when someone gives me a $25,000 retainer; I say, “That’s a lot of responsibility. Somebody just trusted me enough with $25,000 of their hard-earned money and feels it is important enough to give me to help protect and represent them.” We don’t make any more money on wealthy people than we do on less wealthy people, because we charge by the hour. There’s not a contingency; we don’t get a percentage of their big yacht or their multimillion-dollar house. We get a multiple of the time we spend. If we spend five hours on a rich person, we are in the same position as if we spent five hours on a not so rich person.

To land high-net-worth cases, you need to do a really good job in every case and everything you do. You need to keep your head up and act honorably. Sooner or later, the word will get out. Hopefully good people, smart people, rich people, and successful people will find the attorneys who are the best.

Of course, there is an aspect of marketing – you have to get out there. Everyone has their own marketing ideas. I personally think marketing has to be unique to the person. It’s about getting the word out and letting people know that you exist. What works for me may not work for somebody else. Some people like fishing and they join a fishing club; some people are on boards for charitable organizations and their name gets out that way; some people enjoy going to sporting events; some people enjoy country clubs. The best way to land a new high-net-worth client is to think about how you landed your last one, or to ask other lawyers how they’ve attracted those kinds of clients and then do that over and over. It may mean being in the same environment.

However, none of that works unless you have the basis of being really comfortable with your job and knowing what you’re doing. You can get one big client, but if you aren’t competent and it goes badly, the word is going to get out. It’s like a restaurant in that word of a bad meal will spread. If you serve a hundred good meals, then slowly and surely the word will spread. Doing a good job over and over is probably the most important aspect of getting any client and, more importantly, higher-net-worth clients. Age helps, too. The older you get, the older and wealthier most of your peers and colleagues will be and most of the people they refer to you will be. It’s a matter of time. If you practice long and hard, you do your homework, and do a good job, it will come.

You practice both mediation and litigation. Do you think mediation or litigation works better in settling high-stakes or high-conflict cases?

Let’s be clear that I’m a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I’m an advocate and often hired because people think they need to litigate.

Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It’s a wonderful process and it’s almost necessary in every case, except when there’s domestic violence or it’s clear mediation won’t work. It is worth trying for so many reasons and that’s why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.

There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent’s case that makes you re-evaluate your case, or you may learn something about your own client and realize they can’t stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they’ve said it to somebody besides their attorney – somebody neutral like a mediator.

Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.

Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they’d had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. It goes over my feelings about mediation in-depth and some of the things that are useful as well as some of the things that aren’t so useful in the process.