Eric Johnson’s Undeniable Divorce Lawyering Style

EKJ photo 7-2013 (1)

Eric Johnson’s Q&A reads like a mini-masterclass in how to comport yourself as a divorce and family lawyer.

Granted, his opinions seem strong. Here’s one: “Don’t be afraid to fault a judge or commissioner—to his or her face, and with due respect for the office—for ignorance, illogicality, bias, or corruption.” But Johnson approaches law practice with undeniable style. This makes his opinions not only easier to swallow, but make one feel as though not following them would be downright foolish (if you want to be a great lawyer, that is).

Here we begin with Johnson’s anti-lawyer marketing video.

At first I thought you had the world’s cheesiest marketing video. How did you come up with the idea?

The video was a response to the general body of cheesy attorney videos, which I parodied in my own. Specifically, I saw a video on an opposing counsel’s website: sepia-toned, draped fabric backdrop. Rather than looking straight at the camera, this guy looked off into the distance to address an unseen, unspeaking interviewer. Soothing piano music played as he spoke in warm tones about “helping people who feel out of control.” I thought to myself: “Does anyone really buy this?” If they do, I don’t want them as clients. So I made the anti-video for the kind of people I want to impress. It’s done what I wanted.

Do clients seem to enjoy the parody? Have they mentioned it as a factor in their decision to call you?

Of all who have commented on the video, the overwhelming number approve of it, and those who do not approve of it are those who would likely not be a good fit with me anyway.

Describe your ideal family law client. What does a good fit look like?

Someone who is getting shafted by his/her spouse and/or the court system, who is reasonable and fair-minded, and who is not afraid to make bold moves to ensure what’s fair (and lawful) is wrung from the court.

What are bold moves?

To answer your question I must start by stating:

One. Family law is a field of practice where one can be lazy, stupid, crooked—and still manage to eke out a living. Family law’s ranks are filled with such lawyers. Not all lawyers are this way. But more than enough exist to give family lawyers a fairly-deserved noxious reputation. Only the lazy, stupid, and crooked would deny it; it is their nature, and besides, their livelihood depends upon maintaining the deception.

Two. Most court commissioners and judges (not all) loathe divorce cases, and they do a terrible job of hiding their distaste for divorce cases, divorce litigants, and divorce lawyers. This makes hypocrites of those who claim to (and take an oath to) earnestly analyze, understand, and administer divorce law in a just and equitable manner.

Three. Neither most courts nor most of my fellow divorce attorneys can be trusted to deal fairly and honestly with both the court and the opposing party. Expecting such a system to provide consistently just/equitable orders and decrees is so naïve that (in my opinion) placing such faith in the system borders on malpractice.

Bold Moves in Family Law

Control Your Case
Find and implement every fair and lawful means available to a client to control the divorce case. Leave as little room for negotiation as possible. Leave as little up to the court to resolve as possible. Make the outcome the fair-minded client desires as much of a foregone conclusion as possible.

Have No Fear
Have no fear of commissioners and judges; in today’s political climate, they are rarely any smarter or more skilled in the law than I am. So while I will always respect reasonable differences of opinion, I will not and need not ever respect sloppy jurisprudence. Don’t be afraid to fault a judge or commissioner—to his or her face, and with due respect for the office—for ignorance, illogicality, bias, or corruption. Neither you nor your client is obliged to suffer any of that. If a lawyer cannot protect a client, nobody can or will. Sure, holding incompetent courts to a higher standard makes some enemies, but the deference I accrue more than compensates, thank heaven. Besides, ignorant, illogical, biased, corrupt “friends” are more trouble than they are worth.

Learn How to Try a Case
Oddly enough, going to trial is now considered a “bold” move in family law. And the reason why is not what you might think. Family lawyers and courts have become so accustomed to settling divorce cases that it’s now heresy if one “fails” to settle. Several major developments have left some lawyers, especially each new generation of law graduates, unable to conceive of any other option but settlement.

  • The elevation of mere “conflict resolution” above actual justice and equity, rendering lawyers untrained, and thus unable to think or argue, in terms of justice and equity.
  • The resultant lack of competence to try a case and/or a crippling fear of trying a case.

Lawyers who have no concept of justice and equity will not argue the merits of the case because they cannot. So they advise their clients to capitulate to the craziest demands in settlement because they see no other viable alternative. I realize that in view of my expressed lack of faith in the courts it might seem inconsistent for me to see trial as a bold move, but in cases where both you and the judge are skilled litigators, as opposed to opposing counsel who may not be, the willingness to go to trial is often enough to obtain the opposing party’s surrender. Even if the specter of trial doesn’t bring the opposition to its knees, the odds still favor you in trial against an ill-prepared, inexperienced litigator.

This answer could only have come from one who has spent some time in practice. How long have you been a lawyer?

Going on 17 years.

For those family lawyers who haven’t logged as much time, or who are just getting started, what might be a prime example of justice and equity in family law?

It is no simpler nor more complex than this:

  1. Courts should interfere with families as little as possible; only as needed, not as may be merely deemed warranted.
  2. Do unto others as you would be done by.
  3. The fairest rules are those to which everyone would agree if they did not know how much power they would have. —John Rawls

I detect a bit of a libertarian streak in you.

Courts overreach, lawyers either allow it or encourage it, clients either want it or feel helpless to do anything about it.

And yes, you detect correctly.

Why family law? Why did you become a family lawyer?

First, divorce and family law are areas of practice where you can see immediate and lasting results of your work, and I need that to keep going. Second, I love litigating and oral advocacy, and divorce and family law are second to none for this combination. Divorce is like cross-training for litigators: you need to be a skilled researcher, creative thinker, essayist, debater, negotiator, trial attorney, and even good with appellate practice. Note: by “I love litigating,” I mean that I love litigating in the service of a client, not just litigating for the heck of it. Third, I hate injustice, and—though it often feels like tilting at windmills—there’s plenty of injustice and inequity to battle (at every level, both interpersonal and institutional) in divorce and family law.

What books would you recommend for family lawyers to read?

To improve one’s practice skills: How to Argue and Win Every Time, by Gerry Spence. And I would recommend that you spend a year (or less) reading your jurisdiction’s family law code and court rules from start to finish. I did (I do every year, actually), and it has made me a “super lawyer.” It can make anyone who reads (and understands) with interest a super lawyer.

To improve one’s business: To Sell Is Human, by Daniel Pink. The Greatest Salesman in the World, by Og Mandino. Your Marketing Sucks, by Mark Stevens (a little old, but still good). Selling the Invisible, by Harry Beckwith. Almost anything by Seth Godin. As you can see, I am convinced that in today’s hyper-competitive, abundant world, skill as an attorney is nothing without knowing how to promote your skills to your market.

And, even though it’s not a book, I recommend signing up with a practice advisor (or coach, although I hate that word; still, there are people out there calling themselves practice coaches who are excellent) for a full year to learn what makes for a well-organized, well-run, profitable, pleasing practice. I have utilized the services of RJon Robins (excellent) and currently utilize the services of Lee Rosen (excellent). I also like what I’ve read on David M. Ward’s website, although I haven’t been a client of his or purchased anything from him yet.

One Last Question

What makes a great lawyer?

Evergreen smarts informing every aspect of practice. And acting vigilantly in the service of right, despite fear of failure or reprisal.

Thank you, Eric Johnson!

You can learn more about Eric by visiting DivorceUtah.com.

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