FROM THE BENCH

Family law is unique from any other area of practice. The disputes involve the most intimate and emotional aspects of life: children and finances. Because of this, family law often draws out the strongest emotions not only in parties but also in their lawyers. As judges, we are tasked with applying the law impartially while ensuring that proceedings remain focused, efficient and just.

What I have learned from the bench is simple in concept yet hard to grasp. Lawyers set the tone. A professional, respectful lawyer helps keep a case on track. A combative, quarreling lawyer derails it. Few things make presiding over a case more exasperating than counsel who create unnecessary issues and take personal shots at opposing counsel and factually unsupported accusations at the opposing party. Not only is this behavior unproductive, but it is also detrimental to the integrity of the process. There is an old adage that in life we should “dance like no one is watching.” In law, however, the opposite applies. We should write like everyone is reading and behave like the judge is watching.

The Judge’s Perspective: Productivity vs. Pettiness

Every judge has sat through hearings where lawyers turn the proceeding into a personal contest. What should be a 30-minute motion hearing becomes a three-hour ordeal of objections, interruptions and finger-pointing. Clients become more entrenched, fees escalate, and the actual issues (custody, support, visitation) are lost in the noise. Judges are not swayed by sarcasm or insult. What persuades us are facts supported by credible evidence and arguments tied to legal authority. When counsel engage in pettiness, they do not impress the court. They discredit themselves. Lawyers are officers of the court and owe the duty of courtesy not only to the tribunal but to opposing counsel and parties.

Writing Like Everyone Is Reading

Written advocacy is permanent advocacy. Pleadings, motions and even email correspondence often find their way into the record. Lawyers should assume every sentence may someday be reviewed by an appellate court, the Oklahoma Bar Association or the client who paid the bill. As judges, we routinely see pleadings laced with unnecessary rhetoric. Accusing opposing counsel of dishonesty without evidence. Using inflammatory adjectives (“outrageous,” “shameful,” “frivolous”) instead of legal argument. Drafting discovery letters as though they were closing arguments. This style may win a moment of client approval, but it rarely advances the case. Worse, it creates a record of hostility that can prejudice settlement and damage credibility. The OBA Standards of Professionalism encourage lawyers to be “civil, courteous, respectful, honest and fair in communicating with adversaries, orally, and in writing.”[1]

Professionalism as Advocacy

Some lawyers mistakenly believe that civility is weakness. That by cooperating with opposing counsel or avoiding personal attacks, they are failing their client. The opposite is true. Professionalism is advocacy. A lawyer who treats opposing counsel with respect is more likely to obtain concessions. A lawyer who communicates clearly and without hostility is more likely to secure timely discovery. A lawyer who maintains credibility with the court is more likely to prevail in close calls. The duty of zealous advocacy does not authorize combative practice but rather requires fair dealing. Civility is not about being “nice.” It is about being effective.

Practical Guidance for Lawyers

From the bench, I can offer several practical observations for practitioners:

• Think before you write. Before sending that email or filing that motion, ask, “Would I be comfortable with this being read aloud in open court?” If not, edit.
• Pick battles wisely. Not every discovery dispute requires a motion to compel. Judges notice lawyers who escalate every disagreement; we also notice those who resolve issues cooperatively.
• Be professional in front of clients. Clients watch their lawyers closely. If you show hostility toward opposing counsel, your client will likely mirror that hostility, making settlement less likely.
• Respect the tribunal’s time. Judges manage heavy dockets. Efficiency is a mark of professionalism. A long-winded argument filled with factually unsupported attacks wastes time and undermines your credibility.
• Remember the children. In family law cases, the real parties in interest are often the children. Lawyers who model civility help de-escalate conflict, which ultimately benefits the children.

FROM THE BAR

Practicing family law means navigating conflict not just between parties but also often between lawyers. Few things test your professionalism like dealing with difficult opposing counsel. Whether the problem is hostility, avoidance, over-communication, lack of preparation or just plain meanness. How we, as attorneys, respond matters just as much, if not more, than the behavior to which we are responding. The following strategies are not about “winning” against another lawyer but about advocating effectively for your clients while upholding our ethical responsibilities and professional reputation. Because, in the end, we can’t control how opposing counsel acts, but we can control ourselves.

Email, Phone Call or In Person

In modern practice, email is often the most efficient and reliable way to communicate with opposing counsel. It allows for a clear, written record of exchanges, keeps the lines of communication open and provides an easy way to keep the client informed by forwarding messages or summarizing them in updates. Email also gives both sides the opportunity to review their words before sending, which is a benefit that live phone calls or in-person meetings sometimes lack.

That said, email can also be a breeding ground for hostility. Many attorneys – especially those operating from an older, more adversarial mindset – use email as a platform for venting, attacking or posturing. You may receive a message full of sarcasm, accusations or outright hostility. When that happens, resist the urge to match their tone. There’s no ethical obligation to engage in every fight. In fact, doing so only wastes time, inflates costs and distracts from your client’s goals.

Our clients are not paying us to get into arguments with opposing counsel that have no bearing on the outcome of the case. They’re paying us to solve problems, find resolutions and advocate persuasively in court. The courtroom is where arguments matter, and it’s where our energy is best spent rather than our inboxes.

When confronted with an attacking or inflammatory email, a simple “received” or “ok” is often the most powerful response. It shows you’re not rattled, not reactive and not interested in mudslinging. You’re in control of your tone, and by refusing to escalate, you often de-escalate the situation altogether. Opposing counsel isn’t going to convince you of their position by using anger or insults. And you’re not going to change their mind that way either.

Take a step back. Take a deep breath. Acknowledge the message and move on. We can let our filings and our advocacy before the judge do the heavy lifting, not our emails. “Paper tiger” attorneys do much more harm than good for their clients.

When problems arise in a case, it’s easy to resort to written communication. Emails feel safe, provide a paper trail and allow time to craft a response. But in many situations, picking up the phone or scheduling an in-person meeting can be far more effective.

The goals of such interactions are threefold: 1) to seek constructive solutions to the issues in the case, 2) to de-escalate tensions that have built up and 3) to gather facts and clarify positions.

Meaningful conversations can reveal tone, context and nuance that emails cannot. Many disagreements result from simple miscommunications. A phone call allows us to reset the tone and focus on resolution. Always go into these conversations with a prepared agenda, and send it ahead of time to set expectations. We cannot expect opposing counsel to be prepared to discuss “surprise” issues we bring up on a phone call without giving notice for preparation. Nor should we allow ourselves to be placed in such a situation. If this happens, listen, ask questions and then let opposing counsel know you will consider this issue and respond once you have had time to review and discuss with the client.

Listening is just as important as speaking. Avoid jumping to defend your client’s position or attack the other side. Instead, ask open-ended questions and gather as much information as possible. This factfinding approach not only opens the door to compromise but also prepares you for trial if negotiations fail. It is amazing how much information we can learn if we simply listen and ask questions.

Also, don’t underestimate the power of breaking bread. Taking opposing counsel to lunch can radically change the dynamic. It reminds both sides that you are humans first.[2] Strong relationships between attorneys benefit everyone, especially the clients.

Remember that when emotions are high, a delayed response is often the wisest course. We don’t have to respond immediately. Take a pause. Reflect. Then respond with professionalism and purpose.

Use Questions

Using questions instead of accusations reframes conflict into a discussion. For example, instead of saying, “Your client is clearly withholding information,” ask, “Can you help me understand why Mr. Smith hasn’t produced those documents yet?” This reduces defensiveness and fosters cooperation.

Avoid labels like “my client” or “your client” – use names like Mr. Smith or Ms. Smith. This helps keep conversations objective and removes ownership language. This case isn’t personal between counsel. Instead, we have each been hired to help the parties through the process.

Whenever possible, rely on facts rather than conclusions. Stick to what has occurred rather than speculating about motives or drawing assumptions. This factual foundation keeps discussions grounded and respectful.[3]

When attorneys take the posture of shared problem-solving, solutions become more achievable, and conflict often de-escalates.

Dealing With the Over-Communicator

An over-communicator is an opposing counsel who wants to call, email or message constantly and often needlessly. While not always hostile, their frequent communication can exhaust your time and drive up client costs.

We must set boundaries. Strategies include: 1) setting expectations early in writing about how often you’ll respond, 2) proposing scheduled check-in calls to limit back-and-forth and 3) preferring email over calls to limit interruptions and preserve a record. Boundaries are necessary for ethical and practical practice.[4]

Dealing With the Under-Communicator

The under-communicator delays or avoids responding. They delay, avoid discussions and ignore requests. This can stall the case and create costly inefficiencies. Strategies include: 1) setting clear deadlines and confirming in writing, 2) referencing court-imposed deadlines to encourage cooperation and 3) if necessary, seeking a court conference to address prolonged silence.

These steps demonstrate to our clients and the court that we have taken every reasonable step to resolve matters without involving the court unnecessarily.

Client Expectations

From the outset, we must set realistic expectations for our clients about what can and cannot happen in their cases. Family law outcomes are fluid, and court rulings may shift the case unexpectedly. Clients need to be updated regularly.

Clients should be able to see communications between the attorneys. One best practice is to blind copy (bcc) ourselves and then forward the email to our clients. This protects confidentiality. Avoid copying the client directly, as a “reply all” by opposing counsel can violate the Rules of Professional Conduct.[5]

When communications occur by phone or in person, we should summarize them in writing and share them with our clients. These updates build trust and help maintain client confidence.

Clients always deserve transparency. This is easy when things are going well in the case but critical when the case takes a turn for the worse. Our clients should hear the bad news from us. If we avoid the conversation, they will often receive the update from the opposing party. We have then placed our client in a situation of having a negative event occur in their case and having to learn about it from their soon-to-be ex. This is a classic example of adding “insult to injury.”

Consequences – Do No Harm

One of the most important responsibilities a family law attorney carries is to never take the case personally. Sometimes lawyers begin to internalize conflict, harbor resentment or treat opposing counsel as an enemy. This behavior transforms the case into something more than a legal dispute, as it becomes personal. Personal disputes between lawyers rarely serve the clients’ best interests but instead run up the legal fees.

I learned this lesson firsthand. A few years ago, my wife and I were purchasing a home. Our realtor had a personal dispute with the seller’s realtor. The transaction nearly fell apart. It wasn’t because of the terms of the deal but because of the egos of the realtors. I realized clients don’t care about our drama. They care about results in their cases.

We should never force a trial to prove a point. Trial means uncertainty, expense and a loss of control for the client. Settlement gives clients influence, predictability and peace. Our charge is to “do no harm.” We must maintain focus on our clients, not the conflict.

Shutting It Down

Sometimes, no matter how professional, patient and constructive we behave, opposing counsel simply won’t engage in good faith. When that happens, it’s time to shut it down. This doesn’t mean abandoning professionalism. It means recognizing when further discussion wastes resources. We must prepare for trial early and consistently.

As I wrote in “The Naked Cat,” trial success is built on preparation, not persuasion. Don’t wait for the last minute. Trial readiness from day one protects our client’s interests and shows the court that we take our responsibilities seriously.[6]

Attorney’s Fees

Clients often expect that the other party will pay their legal fees. While Oklahoma follows the American rule (each party pays their own fees), exceptions exist in family law. Recent case law has made fee awards harder to obtain.[7] Courts now require a clear showing of need, misconduct or imbalance of resources. Even then, awards may be partial or denied entirely. Pursuing fees requires careful cost-benefit analysis. Clients should be informed of the burden of proof and the risks of investing resources into a hearing that may not succeed.[8]

At the end of the day, professionalism is a choice. It is easy to mirror the tone and tactics of difficult opposing counsel, but doing so rarely helps our clients and often harms them. The practice of family law demands not only skill but also restraint, humility and clarity of purpose. Whether preparing for trial or trying to reach a settlement, remember we are responsible for the tone of our side of the case. We may not be able to fix a difficult lawyer, but we can prevent them from pulling us off course. And in doing so, we better serve our clients, the courts and our own professional integrity.

JOINTLY FROM THE BENCH AND BAR

The Ethical Foundation

Oklahoma lawyers are bound by the Oklahoma Rules of Professional Conduct (ORPC), adopted from the ABA Model Rules. At the heart of these rules is the principle that zealous advocacy must coexist with professionalism.

• Rule 1.3 (Diligence): Requires zealous representation but not scorched-earth tactics. “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”[9]
• Rule 3.5 (Impartiality and Decorum of the Tribunal): Prohibits conduct intended to disrupt a tribunal.[10]
• Rule 4.4 (Respect for Rights of Third Persons): Prohibits lawyers from using means that have no substantial purpose other than to embarrass, delay or burden.[11]
• Rule 8.4 (Misconduct): Defines it as professional misconduct to engage in conduct prejudicial to the administration of justice.[12]

These provisions are not aspirational; they are mandatory. A lawyer who undermines the dignity of the proceedings risks both disciplinary consequences and diminished credibility in court.

A Perfect World

In a perfect world, opposing counsel would be courteous, professional and fair. Communications would be prompt, positions would be reasonable, and disputes would be handled with mutual respect. Of course, that is not always our reality, but that doesn’t mean we shouldn’t work toward that goal.

One of the guiding ethical principles for lawyers in our practices and in our lives is the golden rule: Do unto others as you would have them do unto you.[13] This simple idea can be a powerful tool in family law litigation. Even when the opposing party or their attorney is behaving poorly, choosing to respond with professionalism and decency doesn’t make us weak; rather, it makes us credible, persuasive and ethical.[14]

There’s also a psychological reality we need to be aware of: We tend to judge others by their actions but judge ourselves by our motives. Imagine this: You represent a parent in a custody case, and there’s a sudden disagreement about the exchange location for the minor children. Your client is anxious, and pickup is just days away. The opposing party won’t respond to your client’s attempts at resolution. You place a call to opposing counsel and leave a detailed voicemail. Two days pass without a return call. You send a follow-up email. Still nothing. Your frustration grows. It’s easy to assume opposing counsel is dodging your efforts on purpose, playing games or simply being disrespectful. It feels deliberate. Your client agrees, and now the temperature on the case is rising.

Now flip the scenario. You’re the one receiving that call and email. This week, your world has turned upside down. A close family member has just received a serious medical diagnosis. On top of that, you’re in trial on another matter and barely able to check your inbox, let alone respond. You intend to follow up soon, but at the moment, you’re simply trying to survive. Your delay isn’t malicious. It’s life happening in the background of an overwhelming profession. The facts are the same: a call not returned and an email unanswered. But the interpretation changes entirely depending on which side of the situation you’re on.

This is the bias we all carry. We judge others by their actions but ourselves by our intentions. It’s important in family law to remember that what feels like disrespect may just be the product of real-world circumstances. Grace, patience and professionalism go a long way in preventing unnecessary escalation.

This difference in perspective can lead to misunderstandings, escalation and unnecessary hostility in litigation. Approaching interactions with humility and a genuine desire to resolve conflict can often de-escalate a situation, even when the other side seems unwilling to do the same.

Some family law attorneys only know one speed. They were trained in an era or by mentors where the default mode of litigation was “scorched earth.” Every issue was a battleground, every communication a confrontation and every case a war to be won at all costs. This aggressive style of advocacy may have been tolerated or even rewarded in decades past, but we now understand that such an approach often does more harm than good. It inflames tensions, drives up legal fees, prolongs litigation and causes unnecessary emotional harm to the parties, especially when children are involved.

Despite this evolution in how we understand effective advocacy, some attorneys still cling to the old-school mentality. Not necessarily out of malice, but because it’s all they know. For them, the idea of working through issues and resolving what can be resolved and reserving only the true disputes for trial feels like weakness. Settling portions of a case seems like giving in. They’re not being intentionally difficult. They are operating from a script they were handed long ago and never taught to revise.

Recognizing this doesn’t excuse poor conduct, but it does help depersonalize it. When we acknowledge that this “one-speed” behavior is often the product of training and habit rather than hostility, it becomes easier to manage our own reactions. We stop seeing the behavior as a personal attack and start seeing it as a predictable pattern. And when we treat it as a pattern, not a provocation, we regain control. We can maintain our professionalism, set clear boundaries and focus on what truly matters: advancing our client’s interests without being drawn into a needless and expensive brawl.

CONCLUSION

Family law is a practice area where emotions run high, but professionalism must run higher. Lawyers set the tone. Judges notice when counsel maintain civility, focus on legal arguments and advocate with dignity. We also notice when counsel waste time with petty disputes and personal attacks. As lawyers, write like everyone is reading. Behave as if the judge is always watching. Because in truth, we are. And when you model professionalism, you enhance your own credibility and strengthen the very foundation of justice in Oklahoma’s family courts.

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ABOUT THE AUTHORS

Judge James Siderias has been a special judge for the Oklahoma County District Court (District 7) since 2020. Prior to joining the bench, he served as a prosecutor and later as a family law attorney.

 

 

 

 

 

Shane Henry practices in the areas of personal injury and family law. Mr. Henry has published articles and presented CLE courses on numerous topics related to trial advocacy and Oklahoma family law.

 

 

 

 

 

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ENDNOTES

[1] OBA Standards of Professionalism §3.1 (a).

[2] Patterson, Grenny, McMillan and Switzler, Crucial Conversations: Tools for Talking When Stakes Are High (2nd ed. 2011).

[3] Chris Voss and Tahl Raz, Never Split the Difference: Negotiating As If Your Life Depended On It (2016).

[4] Henry Cloud and John Townsend, Boundaries: When to Say Yes, How to Say No (1992).

[5] Oklahoma Rules of Professional Conduct, Rule 1.3, Rule 3.2, Rule 4.4.

[6] Shane Henry, “The Naked Cat,” OBJ, Vol. 93 No. 3 (January 2022).

[7] Fleig v. Landmark Construction Group; 2024 OK 25, 549 P.3d 1208.

[8] Oklahoma Rules of Professional Conduct, Rule 1.3, Rule 3.2, Rule 4.4.

[9] Oklahoma Rules of Professional Conduct, Rule 1.3.

[10] Id. Rule 3.5.

[11] Id. Rule 4.4 (a).

[12] Id. Rule 8.4 (d).

[13] Luke 6:31.

[14] Oklahoma Rules of Professional Conduct, Rule 1.3, Rule 3.2, Rule 4.4.