One of the common factors in high conflict litigation is that the persons driving it are unpredictable, oppositional, self-centered (or unconcerned with the needs of others, in the case of the sociopath), and they lie as easily as they tell the truth. One of the most troubling things in litigation with these people is their tendency to pop up with some new strange “fact” the minute it looks like things are going against them, usually a lie or half truth.
This is the court hearing where the judge is about ready to rule on a temporary custody issue giving reasonable parenting time to both parties, when the high conflict party decides to pop up with, “but you can’t do that, the children are afraid of him,”. And with 5 other hearings on the morning docket, the judge wants to move this one along and wants a professional to explore the new information before he sends the children to spend time with the parent accused of violence, so the high conflict personality will get time alone with the children to alienate them from the other parent before being ordered to allow reasonable parenting time.
Or maybe this hearing will be the one where the high conflict litigant, watching the judge about to make a decision to give the house to the opposing party, will pop up with a claim that she had forged his signature on a vital document and therefore everything the judge has heard in this courtroom is based upon a lie. And now it’s a Peyton Place worth of issues rather than a simple property split. Suddenly, the judge decides not to resolve the property issues and puts them off for a few months until there is more time on her docket for a more thorough hearing with evidence on the various papers involved. And the high conflict spouse will have an opportunity to find (or manufacture) evidence that will obscure the real issues, in the hopes that a confused issue will result in a bigger award to him than what would be fair.
And then there is the high conflict litigant who figures out how to control the hearing from the start, because the judge is not shutting them up, and who brings in evidence of everything but the kitchen sink, discussing irrelevant issues, demanding compensation for things not in their pleadings, etc., etc. This type of high conflict litigant interrupts the opponent’s time for hearing, overtalking them and not allowing them to have their time, mixing truth and half truths with outright lies, and their victim will have an impossible time trying to untangle the web of lies to show the judge the bottom line. This high conflict behavior is akin to throwing a pot of pasta at the wall and hoping at least one strand sticks to prove that it’s done. The whole pot of pasta might have to be sacrificed to the effort, but at least they’ve proven their point, one strand is done. At high cost, they’ve proven their point on one issue and gotten more than a fair judgment in their favor.
What is the most important strategy to deal with this? TIME. The high conflict litigant’s opponent must find time in front of the judge to untangle the mess that is created by the lies, must request the opportunity to thoroughly cross-examine the high conflict person who has just created the web of lies, and must remember that the person who comes up with a spontaneous lie such as this, always contradicts themselves if given enough opportunity to do so. An attorney who is aware that this high conflict opponent might try this “surprise testimony” strategy (commonly known as “sandbagging”, among lawyers), will be prepared with reasons to give the judge. These must be lawful reasons that the judge will recognize, that due process demands that the judge give the victim of such claims an opportunity to thoroughly examine the issues. The attorney walking into such a hearing will also be prepared with alternatives to give the judge so that the delays caused by the unexpected claims do not subvert justice (for example, children withheld from a parent gives the opponent the opportunity to alienate the children from that parent, or finances put on hold can sometimes result in un-recoverable losses).
Even when one believes they are walking into an easy hearing, one needs a backup plan: An alternative option for interim parenting time in case the judge refuses to rule, options for supervision of a parent accused of wrongdoing, options for moving the immediate financial needs along or freezing accounts to prevent further deterioration of a family’s finances. The client needs to project the confidence of being prepared for the hearing to be easy, but needs to be ready for the possibility of needing a backup plan. Too frequently, litigants disappointed by a high conflict opponent’s outrageous claims have messed up their own cases by being unable to adjust their expectations and agree to an intermediate resolution. A judge does not react well to a litigant who, having been accused of wrongdoing, reacts outrageously, petulantly or obstructively. The high conflict litigant knows how to push their opponent’s buttons, and will do so in the effort to convince the judge that the lies they have told are true.
Once you know that your opponent is a high conflict personality, it’s easier to prepare. Make sure to ask the judge for plenty of time, and be prepared to enforce that time. In their bag of tricks, every attorney needs several different ways to explain the need to enforce their right to cross examine, to have time to explore the issues.
Kids, don’t try this at home: In one particularly high conflict situation, I even had an assistant time my opponent’s obstructive objections, because the judge was not shutting him down and allowing him to ramble on and on (over my own objection). When the judge explained that my time was over, I was able to give the judge the exact amount of time that my opponent had intentionally wasted, and the judge agreed to give me additional time to account for not only what my opponent had wasted, but also an additional amount of time to make up for the fact that I had not similarly intruded on my opponent’s case. Ordinarily, the tactic I used to counteract this opposing attorney’s behavior would have only generated anger by a judge who had allowed their courtroom to get out of control. I would not recommend it and hopefully will never have to repeat this strategy, but the thing that convinced the judge in my situation was that I had laid the foundation for this particular argument, objecting to the nature of the opposing counsel’s obstructionist objections in a way that made it clear that this issue had to be remediated by the judge. I also had a plan in mind, and several alternative solutions to propose to the judge at the point where I needed to enforce my right to the opportunity to speak. This particular judge, knowing my opponent’s reputation, had tried to rein him in by limiting our time, and it had backfired. This judge was open to my suggestions when the time was ripe because of this background. Without exactly this situation, I could have easily found myself being held in contempt. In this particular case, the high conflict opposing party had sought out a lawyer who had a high conflict personality, and between the two of them, my team had quite a difficult job keeping the case under control. In the end, we were successful, but it was a long and difficult journey in this case. If anyone reading this blog feels that they need to try this tactic, they had better be a licensed attorney with a background in litigation, and they most certainly must have tried all the other options for limiting their opponent’s attempts to hijack the courtroom proceeding, and they must be very aware of what line must not be crossed, to avoid being held in contempt.
I will discuss another strategy of dealing with a high conflict opponent in my next post.
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