Aug 4, 2020

Court Calls Out Lawyers Who Act as a “Flame-Throwing Propagandist” in “Unnecessary War of Invective” with “Chernobyl Levels of Conflict”

Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII)

In a recent Blog we covered a decision in which the court admonished Family litigants who had shown undue “rhetorical fierceness” in the documents they had filed as part of their ongoing legal dispute.

But in that case the court also had some important comments aimed specifically at the lawyers and at the entire legal profession as well.

It prefaced the entire judgment with the following:

The famous American trial lawyer, Louis Nizer, once wrote that “[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.” This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case.

In the course of examining the evidence at length and making its ruling, the court – perhaps ironically – used rather florid language to add some important guidance to the profession. It said:

A Word or two About Rhetorical Excess in Family Litigation

Having been required by the exigencies of this motion to closely and frequently review the materials filed in this motion, I feel constrained to offer a few words of caution to the parties, their counsel and to the profession as a whole.

Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.

Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life.

Then, leaving aside any rhetoric of its own, the court continued with a more direct and simply-worded caution:

The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.

Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer’s aphorism that began these reasons, all too many, unfortunately, fail to do so.

For the full text of the decision, see:

Alsawwah v. Afifi, 2020 ONSC 2883

[This post by Russell Alexander first appeared on FamilyLLB.com on July 30, 2020]