Helping families and businesses transform conflict is a full-time calling for mediator Kevin Fuller. Kevin is a well-respected and very experienced trial attorney who has tried cases across Texas in front of judges and juries. Kevin will tell you that when he was his most successful in litigation, he often saw how devastating the results could be. Kevin’s was on the Jennifer Hargrave Show to talk about mediation, alternative dispute resolution, and collaborative divorce. Kevin was on the podcast to share his experience as a trial attorney and how that has shaped his commitment to helping families find resolution.
Kevin Fuller:
I think all those years I spent in the courtroom help me fully appreciate what that system could and couldn’t do for people, for families, for children, for businesses. And I don’t think I would have the passion for mediation, the passion for collaborative law, the passion for alternative dispute resolution processes, that I have without spending all those years in the courtroom and seeing how that really worked and how it really didn’t work.
Jennifer Hargrave:
I love it. I took that right off of your website when you say that when you were at your most successful, it was most destructive for families. What do you mean by that?
Kevin:
The courtroom is kind of the end result of our adversary process. Your trial lawyers and people talk about it as a battle, as a war. It’s certainly all that. It’s destructive in the sense, just from a material standpoint, to go into court, to be successful in court, to get the best results that you can. That costs a lot of money. And many times I found myself in court and maybe we won $100,000 or maybe we want half a million or maybe we want a million. But if it’s $100,000 case, it cost $75,000 in attorneys’ fees to go win that battle. To me that might have been a win for me personally as a trial lawyer, but it was hard to look at that and call that a win. I tell people all the time I got tired of winning nuclear wars of going to court, getting the court or the jury to do pretty much what I was asking them to do before my clients and being a huge disaster of one kind or another. So, the material part was part of it.
To me the even worst part though is a lot of times the things that parents have to do and say in court to advocate their case or try to show what they’re showing, the things that lawyers do and say in court to try to win really, really destructive to families, to relationships. There are things that are said and done in courtrooms that cannot be unsaid or undone. And a lot of those are really painful. A lot of those are really destructive. Achieving a win at the cost of destroying what little relationship you had with your former spouse, with the mother or father of your children, a lot of times that’s a really hollow victory over the long term, especially for the children. Businesses get destroyed a lot of times in litigation. I used to tell my business clients, I said, “Look, we go to court. All your competitors, maybe your creditors, maybe Uncle Sam, the tax folks, they’re going to be watching.”
I had a number of clients come through the divorce successfully only to turn around in getting a battle with their partners or competitors. Learn something about the business from the fallout of the divorce and use that to their advantage. Banks got scared. Called loans that they normally wouldn’t have called. People lost careers and jobs over what they had to talk about in their divorce that didn’t sit well with their companies, especially people who had jobs in publicly traded companies or government or something like that. So, winning a divorce case at the expense of all those things, again it’s oh boy, we won a nuclear war. And so, what kind of win is that?
Jennifer:
Exactly. And I think people, if they’ve been fortunate enough not to have to go through the litigation process, aren’t always aware that when the case is over at the trial court, it doesn’t mean the war is over, right? And so, they can end up facing years of litigation after they get the win and it doesn’t end there.
Kevin:
Many of the bigger trials that I tried in my career, I had sat in the courtroom. Behind me a team of appellate lawyers that were watching the trial, always telling me all the stuff I was doing wrong, all kind of stuff. But their job was especially some of the harder cases, the messier cases where we anticipated a courtroom loss, that team was there to look for errors, look for ways to appeal, look for things to do on the next level. A lot of my litigation clients, I would tell not the ones that were kind of defending all the noise. Maybe the rich tycoon, not that person, but maybe the person who was attacking the power or trying to get money from the person that controlled it. I would tell them many times, “If we’re going to go through this process and really be successful, you need to mentally, financially, emotionally, spiritually prepare yourself for what might be a 5 to 10-year war to get through all ends of the litigation process.”
There’s not many people that are set up in a way where they can wait that long for their financial result in any way out of a divorce. It’s just part of our process. The winning at trial, that’s round one. Court of Appeals is round two. Supreme Court of Texas is round three. Up to the Supreme Court of the United States, if that’s there, is round four. Some people take bankruptcy along the way and that creates around five. I mean, that’s, that’s a lot of litigation.
Jennifer:
It just trying to get the award creates a whole another round as well.
Kevin:
My dad used to say there’s the check you can get the jury to write and then there’s a check you can cash. You need to pay attention to the check you can cash.
Family Law proceedings are public
Jennifer:
Exactly. Another thing a lot of people aren’t aware of is they think family law proceedings are private in the courthouse, and they’re not. They are open in most cases for people from the public to come in. These days, they’re on YouTube. So, that’s something people need to be considering is how public do you want all of your affairs.
Kevin:
That’s right. That to me, that is a major consideration for a lot of families. A lot of families that have competitive businesses. Are you sure you want to have a lawsuit, litigate that in a form that’s public, and really people that don’t like you so much. Maybe your business competitors or enemies have access to whatever is going on in your divorce, and that’s rarely does a family want to show so much of themselves to other people.
Jennifer:
Years ago while you were still in private practice representing clients in the divorce process, you became a leader in the collaborative divorce process. Tell us a little bit about your journey in defining and learning about collaborative divorce and really taking it on.
Kevin:
I think it really kind of follows my maturity as a human being in a little bit. When I first started as a lawyer, I wanted to be a trial lawyer. I didn’t really care what kind of lawsuits I was trying. I wanted to be in the courtroom and ride it first. Man, I love being in the courtroom. To me it was like playing football with the suit on. I just loved the competitiveness of it all, the strategy, the theater. I love that part of being a trial lawyer. But pretty early on after I’d been at it for four or five years, it just kind of the impact that all that was having on real-life human beings and children and families and people really started taking its toll on me. I was having the pause and look what all my competitiveness was costing people, and not just in money.
I think that started grinding on me. Along the way I ran into this problem of what is winning mean. I’ll never forget I had a case early on of a husband and wife. The husband had a girlfriend, a big job, lots of money, real powerful. My client had next to no job, kind of no power in the relationship. We were negotiating and I remember the guy made a 50/50 to the penny offer on a not a huge estate at all, probably less than 200,000 bucks, but a 50/50 offer. I was offended by that. My client was certainly offended by that. I mean, this guy had an affair, had lots of money. I remember telling him, “That ain’t ever going to happen. I’ll see your butt in court.” That’s back when I was young and cocky and all that kind of stuff. So off to court we go. This guy’s on the stand, I’m just chewing on him. The whole time he’s just looking at me with this look. His girlfriend comes to court. I chew on her. I mean, we have a trial. After it’s over with, my client is so grateful that her husband was held to account, that this other woman was brought to the courthouse and shamed, I guess if you will. But the guy when we were leaving the deal he said, “I want you to go back and look at my letter of June 1, 1995 or whatever it was. I want you to look at that.” And that’s all he said. I went, “Yeah, sure, right, buddy.”
And so the case was over. We got the ruling. We got a nice split. I don’t know if it’s 60/65 split. As trial lawyers will talk about it, it was whopping. But I eventually did go look at that letter. And his 50/50 offer that he had made like a year and a half before we tried the case, when I looked at the dollar amounts that were there for my client and what I got her from whopping in the courtroom, it was significantly less. In terms of what my client really needed to take care of herself, to take care of her kids with almost no job prospects, no real way to accumulate wealth, that difference, that fifty to seventy-five thousand dollar difference, whatever it was, had a huge impact on it. That changed me because it kind of redefined what a win is in family law. That one case and that happened fairly early in my career really did help me redefine what is winning really mean in this process and made me pay more attention to that.
So, that pushed me more and more to look at maybe it was okay to settle a case. I didn’t have to fight everything that moved. Then once I started trying to learn how to settle cases, one of the problems I had in the adversary process, and this was back when mediation was first started, nobody wanted to play. Everybody wanted to play courtroom. Nobody wanted to play settlement. So, it was really hard sometimes to get people to seriously discuss settlement.
Jennifer:
Why do you think that is? What was it at the time? Because I think we still run into that today where people really feel like fighting it out is the way to go. But I would say it’s like an itch. If you scratch it, you end up with a big wound.
What does a win look like for a family?
Kevin:
Yeah. I think some of it was just a culture of family lawyers at the time. We very much looked upon ourselves as trial lawyers, as warriors and protectors of the people that we represented and it was a little bit of a culture thing. I’ve been doing this a little over 35 years now and it’s changed a lot and change for the better. I think a family lawyer today, a really good one, certainly has the ability to go in our legal system and be an advocate in that environment. But there is a profession we’re taking a more holistic approach to, “Hey, what are we doing here? What does a win look like for a family?” And so, it’s a little less let’s sort this out in court and a little more court is becoming more and more a place of last resort instead of first instinct. And so, when collaborative came along in 2000, 2001, or 2002, I was instantly drawn to it because it changed the playing field. The whole legal process is an adversary process. It’s the whole design of all our rules, rules of procedure, rules of evidence, all that kind of stuff, is to set up rules for what the battle is going to look like. So all the end games lead to that courtroom.
Jennifer:
I want to interject here real quick because we throw around adversarial process all the time as we know what that means. But a lot of people who might be watching this don’t really know. They may have some idea.
How do you define an adversarial family law process?
Kevin:
It’s just a contested environment. It’s like you say the house is worth a hundred grand. I say, well, not so much. Okay. That’s pretty common in all environments, but we go have a contest about it. You put your witness on this stand, your appraiser. And I’m trying to attack that appraiser either being an idiot or lying or don’t know what they’re doing or appraise the wrong house or whatever it is. And that’s without regard to what the true value of the house is. I don’t care. I care what my client says it is, and that’s what that process is about. Same thing for my opponent. They don’t really care what the true value of the house is. They only care what their client says it is. And so, it’s a pitch battle, and the judge decides.
Jennifer:
I think what you just used was a really key term that people don’t understand. That you’re taking mothers and fathers, husbands and wives, and you’re making them opponents. They are playing against each other.
Kevin:
It’s with kids, I tell my mediation clients all the time. Our mental health community tells us maybe the worst thing we can do with our children is to have parental conflict in the home. Whether you’re a married couple or divorcing couple, conflict in the presence of your kids, their awareness, one of the most damaging things we can do as parents to our children. So, the family law system says, “The problem is parental conflict. Oh, we got a great answer for that. You’re not arguing hard enough. You need a professional arguer to help you make your points. And so what we’ll do is as poor family that’s in conflict, we’re going to go get that couple a professional arguers and put you in a pitched battle and we’ll figure out who’s right on this thing.” Oh my God. What kind of answer is that? What kind of answer is that for a conflict?
Jennifer:
I think when you’ve been doing this a while, what you see happen is how serious of an impact it has on children. And you don’t have to be a mental health professional to know when you’ve got your clients kiddos who are ending up in the psych ward because of the parental conflict, or they’re threatening suicide. The costs are so high for parental conflict.
Kevin:
People all the time, because I’m a divorce lawyer, they would tell us war stories. Back in the day, I had a list of four or five stories that I would tell that I thought were funny. Looking back on them, my war stories now or how many clients I’ve had or their spouses who have taken their own lives either during the divorcing process or shortly thereafter, how many children we’ve lost to suicide because of the fallout from all that professional arguing at its worse. Not every case is like that by any means. But too many of them have ended that way. I can look at a lot of the jury trials that I’ve tried and with a significant number of them, there is a fall out like that and it’s devastating.
So, what motivated me? I really didn’t like being a part of that. I was having trouble getting people to play settlement. And the whole process I was involved in was a fighting process versus a solution process. And so, when collaborative came along, from the biggest viewpoint, it’s a process that says, “Look, we’ve got problems. We’ve got conflict. Nobody agrees. Nobody likes each other. We got all that. But we’re going to set up a process where the endgame is not a battle. It’s not a war. It’s a solution. That’s what we’re trying to come to as a solution without a war or a battle.” And so, it’s a completely different game in the collaborative process. The lawyers act different because they’re not trying to set the other lawyer or their client up to be taken down in some kind of litigation context. There’s certainly advocacy going on, but it’s at a completely different level with a completely different purpose. I love that. Finally, I could get somebody to play settlement with me that was really going to play settlement. They weren’t gaming me to just cut my legs out from underneath in a trial somewhere.
Jennifer:
Because one of the important features of collaborative is the collaborative commitment that the professionals also make. So if the case doesn’t settle in collaborative divorce, the lawyers get fired. So that means we all have a vested interest and we are sitting around that table.
Kevin:
And that’s the big deal. The biggest mistakes I made as a lawyer representing clients was either they came in two flavors. Either I had my war general hat on when I should have been had my diplomat hat on. We’re just opposite. I had my diplomat hat on when I should have had my war general hat on. And the thing I like about the collaborative option is it sets up a process where it’s safer for me as an attorney trying to help somebody to know, “Hey, in this process only had I to wear is the diplomats hat. I’m not going to make a strategic generals’ mistake in this environment because it’s all solution. It’s all peacemaking, maybe too strong of a word. But it is a solution making process.”
In the litigation process, it’s still hard. There’s a lot of settlement that goes on in the litigation process far and away. Most cases settle in that process. But for the lawyer, you got to wear two hats. You got to keep your war general hat on because you are in a process where the other side has the constitutional right to take you to a jury trial if they want to. At the same time…
Jennifer:
I have to interject there, because I think that’s another thing that people don’t often realize is that in Texas, our family law cases are divorce cases and custody cases can be tried in front of a jury.
Kevin:
And people have a constitutional undeniable right to do that. And that’s bad. I mean, that is a big battle, a big contest. And so, when you’re a lawyer in a normal litigation case, you need to keep your eyes and ears open because there is always a possibility that the case can come completely off the rails and you’ve got to be thinking about what you did and said in a courtroom context. At the same time as we’ve been talking about for most families, most couples, most businesses, ending things with a contested trial is not the way to go. So you’re trying to be diplomatic, but you still got to keep your eyes. It’s hard. To me, it makes the lawyers’ job incredibly hard to skillfully maneuver their client through both of those paths. In collaborative, the focus is singular. I don’t have to worry about all that. I’m absolutely still an advocate and trying to help my client and get their interest meet and all those sorts of things. But I don’t have to worry about all these strategic games, if you will, that I do when I’m in the other system.
Jennifer:
I love the focus on solutions. How have you seen collaborative divorce benefit the people, either clients or even in your work as a mediator? How have you seen it benefit people?
Kevin:
Well, lots of ways. First, let’s just talk about money and material. I’m more active as a mediator now than anything else. That’s pretty much exclusively what I’m doing these days. But when I was an active collaborative lawyer, I was also an active trial lawyer at the same time. And one of the statistics that I kept at the time was how much is all this costing my clients. When I finished up my collaborative active career, I had close to a hundred cases and I could take the fees that my clients had paid me from those hundred collaborative cases. And with what the fees that my clients paid me from six of my litigation cases would have paid for all 100 of the collaborative cases. Most of my collaborative cases were substantial cases. Big complicated cases with a lot of issues and controversies in them. So, a hundred for the price of six. That was a huge thing.
The second thing is for my financial plans, where we were involved in businesses trying to distribute wealth out of a business or something like that. My results for those clients, no comparison. No comparison to what was available to them in our litigation process or going to court. None. So they got better financial results, both ends. Whoever was paying, whoever was received.
Jennifer:
And part of that is, I also think people don’t realize that courts are constrained by the Family Code in terms of what options they have available to them. So, when we’re working outside of the court, anything is possible. We don’t have those same restrictions in place.
Kevin:
The courts got maybe three or four tools. In the collaborative process, you may have a thousand tools to fix that same problem. Families. Children. Oh my goodness. Any divorce is hard. It’s going to be, I think, the most devastating, difficult thing that anybody ever goes through. The collaborative process helps with that, but it doesn’t take away how hard it is, how difficult and painful it is. But the process is not anywhere near as destructive. So, the difference in what those children’s lives look like post-divorce is not really comparable.
Jennifer:
It’s night and day.
Kevin:
Night and day. And so, that’s a benefit. And then time, goodness, grief wear and tear on your spirit, your soul, your mental health, emotional health, no comparison. Not to say that the collaborative process, the mediation, and those kinds of things are easy, but they are way, way, way, way less worse than the contested environment of a courtroom.
