Appointing Your Sage General

CHAPTER 3
Appointing Your Sage General

Military leadership
is a matter of wisdom,
sincerity, humanity,
courage, and discipline.
-- Sun Tzu

The attorney-client relationship is comparable to the ruler-general relationship. Think of your divorce lawyer as a military leader, or "Sage General," capable of developing strategies, leading an army of associates and paralegals, and negotiating the peace treaty.

Military leadership receives orders
from the civilian leadership.
-- Sun Tzu

You must now be the sovereign ruler responsible for appointing (and sometimes dismissing) the Sage General, a highly specialized professional. As Sovereign Ruler, you control the larger picture and are the ultimate decision maker.

A capable general
without interference
by the ruler will be
victorious.
-- Sun Tzu

Sun Tzu believes warfare is too important for civilians, insisting on partial autonomy of the day-to-day operation of the army once the sovereign establishes political objectives; Sage Generals implement the Sovereign Ruler's policies. Just as Sun Tzu would not allow the emperor to interfere with technical military matters, you should not interfere with your lawyer's technical expertise. Divorce strategies require his legal experience and advice, so your reliance on the attorney for strategy is inevitable--counsel decides the Tao, (the "Way") of war. When clients think they understand judges better than their lawyers, they are often unhappy with the results.

A client's insistence on second guessing her lawyers often leads to disappointment:

Mary was married for 23 years to George, a highly successful surgeon, who had several affairs and had hurt Mary when he moved in with his young girlfriend. His lawyer offered one-half of the assets and reasonable, but not generous, alimony. Eventually, George increased his offer because of our diplomatic efforts. Mary was too angry to accept it, believing the judge would punish George financially for breaking his marital vows. Preferring military action to diplomacy, she spent over $30,000 on legal fees, lived through a litigation nightmare, and was awarded almost exactly what diplomacy would have gained her.

The sage general
is the extremely subtle
and mysterious director
of the enemy's fate.
-- Sun Tzu

Sage Generals create circumstances that assure victory, then use diplomacy based on strength to win without fighting. Your lawyer should be able to draw upon an ethical philosophy that compels peace by his ability to wage war. Through spies or psychological warfare, the Sage General is victorious without armed conflict. What enemy would risk annihilation by attacking a fearsome, but humane Sage General?

Your Sage General can also achieve superior results in divorce warfare by building a solid case, then negotiating a settlement agreement backed by planning and preparation. Diplomacy based on strength will avoid warfare, or trial.

The Sage General, working quietly but effectively may help you implement a "carrot and stick" strategy:

Harry was not inclined to settle his case without some arm twisting. Joyce anticipated his recalcitrance, so she spent almost three months gathering information, including planting a spy at his restaurant to count cash receipts and tally costs. We presented this evidence along with a reasonable settlement offer to Harry's lawyer. The weight of the evidence combined with the favorable settlement offer persuaded Harry not to fight. If the evidence had been weak or the offer unreasonable, the case would have gone to trial.


Quest for the Sage General
Excelling at warfare
means conquering those who are
easy to conquer.
-- Sun Tzu

Many factors affect the selection of an attorney who qualifies as Sage General. We outline several major topics, but there is no substitute for relying--at least in part--upon your intuition. All the intellectual, or left-brained, analysis lacks the power of your intuitive right brain's ability to detect danger. When considering a Sage General, take into account:

* Reputation
* Experience and Wisdom
* Accessibility and Responsiveness
* Style and Psyche
* Gender
* Negotiating Skills
* Legal fees

* Reputation

Beware of those who have reputation
but lack substance;
what they say is constantly shifting.
-- Sun Tzu

Reputation is a practitioner's only true asset and is especially important in family law since in most states cases are tried before judges, not juries. Most court appearances are for "motions" during which judges must rely on the accuracy and candor of the attorneys. One highly-respected family court judge once told us, "we know you lawyers talk about us, but what do you think we judges talk about? Lawyers," he said, "especially those who lie to the court....if one judge knows about a lawyer lying to the court, we all know!"

Gaining a consensus about a practitioner's reputation is difficult, especially from former clients in this emotionally- charged arena. Nor can you easily infer good reputation from organizational memberships--they may assure a certain level of experience, but technical expertise alone is no guarantee. We have seen members of prestigious organizations take unconscionable positions, "milk" cases, and sometimes engage in unethical behavior.

Emperor Chou boasted
of his own inflated reputation
and treated all people as inferiors.
He was hated and
the feudal lords revolted.
--T'ai Kung

Reputation is often mistaken for notoriety, but fame and effective advocacy are not synonymous. In his translation of The Art of War, Thomas Cleary retells an old story of a lord of ancient China who once asked his physician who was the most skilled. The physician, a member of an esteemed family of healers, replied:
My eldest brother sees the spirit of sickness
and removes it before it takes shape,
so his name does not get beyond the house.
My elder brother cures sickness when it is still extremely minute,
so his name does not get out of the neighborhood.
As for me, I puncture veins, prescribe potions, and massage skin,
so from time to time my name gets out
and is heard among the lords.

Unnecessary litigation is always financially and emotionally devastating. Distinguish between "well known" litigators and effective advocates by avoiding lawyers with litigious reputations who will cause prolonged fighting and exhaust your resources. Remember that protracted warfare brings ruin.

To win without fighting is best.
-- Sun Tzu

At the conclusion of each trial there are usually two losers. Threats and saber rattling by experienced litigators are useful, but litigation for its own sake is self-defeating. Trial, like armed battle, is the last resort.

General Wu Tzu was wise,
he knew that Sun Tzu could penetrate the enemy.
One morning Wu was discussing military affairs
with the emperor and recommended Sun Tzu seven times.
-- Spring and Autum Annals

A peer referral from two generals led The Emperor of Wu to appoint Sun Tzu as general of his army. Similarly, referrals from other attorneys are valuable. Most lawyers avoid domestic relations cases and are happy to make a referral. When interviewing divorce lawyers, ask about the reputation of other Sage Generals. Ask whom they would use if they were getting divorced and why. Then find out what they think are the most important qualities in a divorce lawyer, and see if they match Sun Tzu's advice.

Non-lawyers may be yet another avenue for referrals, so speak to all your divorced friends. If dissatisfied with their own lawyer, or impressed by opposing counsel, they may recommend their ex-spouses' lawyer. This kind of referral is usually a sign of respect, since many divorcing parties are often forced to acknowledge the skill of opposing counsel.

* Experience and Wisdom

To gain knowledge,
add something every day.
To gain wisdom,
remove something every day.
-- Lao Tzu

Western culture values "left side of the brain" functions such as logic, scientific analysis, and linear reasoning, or as Lao Tzu would say, "adding something every day." Taoism views "right brain" functions such as intuition and aesthetics as the purest form of knowledge and the basis of wisdom. Sages develop their intuition through experience and reflection of nature and human nature, not logic or scientific analysis. When nature is experienced, the observer can remove its various components to understand relationships among things or "interconnectedness." Albert Einstein's great achievements came not only from having a genius IQ, but also from his ability to see interconnectedness.

Without experience and reflection, lawyers lack wisdom. But experience alone does not ensure wisdom since hidden agendas may destroy the lawyer's ability to act wisely: vast experience can be dwarfed by psychological issues and personality problems.

Sage rulers valued generals who were not boastful,
for the boastful are greedy and contentious.
-- Ssu-Ma, The Methods of the Minster of War

Divorce lawyers who boast extensive trial experience may be sending out warning signals. Are they too litigious? Some lawyers are always in court because they fail to communicate with opposing counsel or take unreasonable positions: thus they force judges to make decisions that are better left to the parties.

Generals who do not know the terrain will lose.
-- Sun Tzu

Your Sage General must know the terrain--legal, financial, actuarial, tax related, and psychological--and must be experienced in issues ranging from valuing a closely held business to devising a co-parenting plan for young children. Ask whether counsel specializes in matrimonial law. Attorneys unsophisticated in family law often take unrealistic positions that lead to protracted litigation. You may hope your husband retains inexperienced counsel (believing that such an attorney may be an easy targets for more sophisticated lawyers), but instead they cause undue financial and emotional hardship on both spouses because of their inability to settle cases.

Advance knowledge cannot be
gained by ghosts and spirits,
but only from experience.
-- Sun Tzu

Supreme Court Justice Oliver Wendell Holmes said that a lawyer's most important job is to predict what a court would do in any given situation. The right or intuitive part of the brain is most useful for predicting events, and the left or scientific part is better at explaining past events. Science is no substitute for the instincts of an experienced observer.

Apply the "Holmes" test. Ask your prospective attorney about different family court judges. In most jurisdictions, the family court bench and bar is small; all active practitioners have appeared before each judge. Can they name each judge? What is each judge's reputation? Have they argued contested motions or tried cases before each judge? What kind of cases? Did any have a fact pattern similar to yours? What was the outcome? Ask about the lawyer's most recent trial experience. Finally, do they have wisdom? Can they turn their experience into an accurate intuitive barometer of judicial behavior?



* Accessibility and Responsiveness

If your signals are erroneous or lost,
the enemy can overwhelm you.
-- T'ai Kung

Communication is essential to conflict resolution. Ask whether phone calls are returned within 24 hours. Some lawyers fail to communicate with you about your case, do not answer your phone calls, and get annoyed when you ask questions. They fancy themselves as members of a secret society doing their utmost to heighten the mystery. We often hear stories of frustrated clients who are victims of these callous, disrespectful lawyers.

Sages achieve wisdom by remaining low, humble.
-- Lao Tzu

Some lawyers may be psychologically healthy but nevertheless lack the humility necessary to gain wisdom. Women facing divorce are often vulnerable to the influence of a strong patriarchal figure whose style prohibits a successful client-attorney relationship. An arrogant, patronizing attorney who treats clients like children cannot adequately represent you. "Please detail the various grounds for divorce," you ask. "You need not worry your pretty little head, I'll take care of everything," he answers. Their arrogance not only makes them poor listeners, but also jeopardizes your case, since they cannot prepare thoroughly. They fail to learn enough from the client--preconceived notions block their ability to gain knowledge and wisdom.

Military affairs are directed by the general,
not the ruler.
-- Zhuge Liang

Avoid lawyers who encourage you to make all the decisions. "What is our best course of action?" you ask, only to receive a noncommittal "Well, that's really up to you." Perhaps unsure of himself--or worried about suits for malpractice--he abandons his responsibility. Your Sage General must actively make decisions with your advice and consent. Even explaining alternatives, "on the one hand, we could...and on the other hand," is inadequate. Lawyers should explain all alternatives and recommend a course of action: Only then can you make an informed decision.

Good generals select intelligent officers,
thoughtful advisors, and brave subordinates.
They oversee their troops like a fierce tiger with wings.
-- Zhuge Liang

You must be comfortable with the Sage General and his brave subordinates. Will you be handed over to associates or paralegals? If so, insist on meeting them and ask about their rates and experience. Good Sage Generals establish a chain of command by selecting the right subordinates and closely monitoring their activities.

* Style and Psyche

Sages are guided by what they feel,
not what they see.
-- Lao Tzu

Domestic relations lawyers are an unusual mix, some psychologically healthy, others deeply troubled. Lawyers, like therapists, must listen to and be understanding of clients. Unlike their mental health counterparts, they must perform in the real, but uncertain world of divorce court, which inevitably causes tension in the relationship. Lawyers enter these tense relationships without mental health training or psychological "supervision."

Lawyers' personality disorders, hang-ups, phobias, and paranoia can creep into the attorney-client relationship. You must be sensitive to potential psychopathology during the interview. Watch for warning signs from practitioners who themselves have been through messy, highly contentious divorces. Some of these attorneys are serious troublemakers who cannot help themselves, let alone help you.


You are harmed by decadence
when judgment is based on private views,
when forces are mobilized for personal reasons.
These generals are treacherous and immoral.
-- Zhuge Liang

In one highly contested custody case, our client reviewed court divorce records for "dirt" about the opposing counsel's own divorce. The foot-thick file contained sordid details of a decade-long war. At our first meeting with both lawyers and both parties, we were polite and constructive; but without provocation, opposing counsel stood up and screamed obscenities and physically assaulted our client. He needed supervision and psychotherapy.

Psychotherapists' fees, unlike legal fees, are often covered by insurance, and therapists are trained to deal with your psychological needs. You get very poor value by "ventilating" with your $200-an-hour lawyer. Even a psychologically healthy lawyer can be a dangerous therapist, and a disturbed lawyer can ruin you.

Beware of lying lawyers. Clients sometimes ask us to misrepresent matters to the court saying, "But the other lawyer did; if they fight dirty, so should we." Lying can create short term benefits, but lying is always improper before a court. Wars are won based on truth, even if it means losing occasional battles. Do not ask your lawyer to risk his or her professional reputation, especially since you may lose the war despite fighting dirty. Lawyers who violate ethics rules or break the law may also take liberties with your billing. Do not expect selective dishonesty, especially when money is at stake. If they cheat justice, they will cheat you, too.

Too much talk will exhaust itself.
It is better to stay centered.
--Lao Tzu

Taoists value staying centered. As with the laws of nature, unbalanced extremes will eventually recede to the middle. Overly aggressive and passive lawyers are extremes, or as Taoists would say, out of harmony with nature. Judges tend to disdain extremes and enforce the laws of nature. Neither the nasty, aggressive showman nor the mute coward will prosper.

Know the male, but keep the female.
All things carry Yin and hold to Yang,
their blended influence brings Harmony.
-- Lao Tzu

* Gender

Gender can be a factor--you may not know whether your Sage General should be male or female. The seminal Taoist work, I Ching (the Book of Changes) introduces the concept of yin and yang, which are complementary polarities. Taoism attempts to meld extremes and produce a balanced whole. Similarly, male and female attributes are considered complementary polarities that need harmony and balance. Yang, or male brain physiology, stresses the left hemisphere's ability to specialize intellectually while the yin, or female right-dominated brain, is superior at using feelings and intuition. Men tend to rely on so-called "scientific" evidence while women rely more on their instincts, especially when perceiving danger.

Taoists believe that relying on a purely scientific approach is dangerous since the purest form of knowledge and wisdom comes from your feelings. Sage rulers took advantage of yin and yang polarities by balancing the two, but our culture does not value yin, i.e., "women's intuition." In divorce warfare, yin is essential.

The most important aspect of your choice between male and female general is comfort level. In our practice we balance polarities by using a coed team approach that seems to work well. So try the team approach and pick a firm with male and female lawyers, especially if making the choice is troublesome. Balancing polarities also encourages greater sensitivity to opposite-sex issues and feelings.

* Negotiating Skills

Be suspicious of those claiming
to seek peace without bringing a treaty,
for they are plotting.
-- Sun Tzu

Over 90% of cases are settled without trial, so negotiation skills are critical. Sage Generals are masters of war and diplomacy; they can conduct a siege and negotiate a peace treaty. While using one lawyer throughout the campaign is desirable, your lawyer may not possess all the skills necessary for negotiating a settlement agreement. Some lawyers are too accommodating, while others are too litigious--neither can serve you well. If your lawyer is not a Sage General, consider executing your general: fire the warring lawyer and replace him with a good negotiator.

At war's end, you want a well-crafted peace treaty, or settlement agreement. Make a mistake now and you will suffer interminably since the agreement may affect you for the rest of your life. You worked hard to achieve victory--do not give it away by failing to pay attention to details. In Part Three, "The Aftermath," we discuss the peace treaty and how to replace the warring general with a "negotiator general."

* Legal Fees

A country can be impoverished by its troops.
-- Sun Tzu

Ask about fees. Retainers of several thousand dollars are usually required since divorce clients often dispute bills, and lawyers, after filing an appearance, cannot resign without the court's permission. Most lawyers require their new clients to sign a fee agreement requiring a retainer that is debited for fees and costs, usually on a monthly cycle. Hourly rates vary by location and experience. Expect fees ranging from $100 to $500 per hour, with average urban fees in the $150 to $250 range. You should ask for and receive monthly statements that break out fees by 1/10s of an hour; set forth costs; and describe the service provided. Ask if there is a minimum time charge for certain activities such as phone calls since some lawyers charge a minimum quarter-hour for each task, including two-minute phone calls.

A great military brings years of hunger.
-- Lao Tzu

You will be shocked, and we mean very shocked, at how quickly fees add up. Each conversation with your lawyer, each letter counsel writes, each pleading prepared, each phone call with opposing counsel, each trip to court (including travel time), each consultation with experts, and each memo to the file costs you money. Be careful. Keep track of your $100 "chitchats." Some people are tempted by advertisements of lawyers promising "flat fees" as a cost-effective alternative to the usual hourly rate practice, but these "flat fee" lawyers may end up costing you more time and money.

Melanie, a 45-year-old homemaker and her husband Bruce were married for 22 years. They signed a settlement agreement prepared by a lawyer who charged Melanie a flat fee of $500. Bruce was under no obligation to pay alimony since Melanie (although currently unemployed) planned to resume her pre-marriage teaching career. The divorce judge refused to grant the divorce until the parties' agreement conformed with acceptable guidelines requiring unemployed wives to receive alimony. Melanie was distraught, thinking she would not get her quick inexpensive divorce. We explained the guidelines to her, then negotiated with Bruce and his lawyer for Bruce to pay alimony until Melanie secured a teaching position. With the revised agreement, the judge granted a divorce. Melanie and Bruce would have paid less if they used lawyers willing to spend enough time explaining the law and making sure the agreement conformed to it.

The worst form of decadence in generals
is insatiable greed.
-- Zhuge Liang

Beware of "milkmen," high-profile lawyers who milk cases for every penny. Loving courtroom theatrics, they run through all your money litigating until your retainer runs dry, then fire you! But more than money is at stake. After numerous court appearances and a trial, they will destroy both your economic and emotional health.


When generals are untrustworthy,
doubts and mistrust develop resulting in failure.
-- Liu Ji, Extraordinary Strategies of a Hundred Battles

Avoid lawyers who ask for contingent fees, a percentage of your settlement or judgment. Also, do not be fooled by such euphemistic terms as "bonus" or "success fee," which are no more than a disguise for an unethical practice. Most states prohibit matrimonial lawyers from taking divorce cases on a contingent fee basis, and bonus or success fees look suspiciously like contingent fees. Since the lawyer's fee depends on the death of your marriage, if you want to reconcile, the lawyer's interest and yours clash.

Find out whether your prepaid retainer is considered a minimum fee. Some divorce lawyers say they are entitled to keep your retainer, even if unjustified by the actual time spent. If you fire your lawyer after several weeks, some lawyers insist upon keeping the balance. We believe that retainers should be refundable to the extent they exceed actual time and cost charges. But if the case is protracted, expect to replenish the retainer.

Failed Generals

Avoid generals who are reckless, cowardly,
quick-tempered, thin skinned, and soft-hearted.
-- Sun Tzu

Sun Tzu warns against these five traits in generals, any one of which can jeopardize your campaign.

If reckless, he can be killed.

If your Sage General is appointed based solely on a reputation for nasty and aggressive tactics, you may be drawn into a needless war. Reckless aggression presents unnecessary risk. Impulsive lawyers will cost you a small fortune in legal fees and force you into high-risk situations such as a "no-holds-barred" trial. Reckless aggression may gain a short term tactical advantage but ultimately cause defeat. Divorce is traumatic enough without a reckless general wiping out your assets.

If cowardly, he can be captured.

Cowardly lawyers who fear wrong choices are unable to exploit enemy weakness; they hesitate when they should attack and surrender when they should defend vigorously. Cases often stagnate as a result, wasting marital assets. Sun Tzu said, "No country ever benefited from protracted warfare." Indecision during the crucial pre-trial stage is like the fatal pitfall of hesitating during a military maneuver. The cowardly warrior appears to commit, but fails to execute. Will your husband take you seriously if you begin a hostile campaign then shake at the mere mention of court?

If quick-tempered, you can make a fool of him.

The quick-tempered general is similar to the reckless general. Tu Yu, another Chinese military commentator, points out his flaws:
An impulsive man can be provoked
to rage and brought to his death.
One easily angered is irascible, obstinate, and hasty.
He does not consider difficulties.

This general can be provoked into disaster. A quick-tempered divorce lawyer is disliked by other lawyers because of his "wildman" antics, although lawyers also acknowledge that they may manipulate him into acting out in the presence of the judge to win sympathy for their clients.
If he is thin skinned, you can manipulate him.

The thin-skinned general takes every insult to heart and can be easily provoked. He will do almost anything to defend his or her reputation--even at your expense--by filing frivolous pleadings that generate needless and expensive paperwork.

Eric, after separating from his wife Kate, wanted to settle as quickly as possible, and authorized us to make an offer to Kate's attorney. His offer included access to all of his business and financial records to assure Kate and her lawyer that Eric was candid about finances. At a settlement conference, Kate and her lawyer examined Eric's documents alone in a conference room. When we reconvened, we all agreed that we had made significant progress toward settlement, so we agreed to adjourn.

We later discovered that some of Eric's documents were missing and assumed that Kate or her attorney took the material inadvertently. There was no suspicion of wrongdoing since we had told them we would provide copies of any documents they requested, but Kate's attorney became enraged and blamed Eric of falsely accusing him of stealing records. Acting as if his personal integrity were at stake, the lawyer steadfastly refused to discuss settlement again.

If he is soft hearted, you can harass him.

The soft-hearted general is too empathetic to the troops. Fearing casualties, he does everything to avoid conflict, prolonging warfare as a result. Lawyers who cannot act decisively may be doing you a disservice, repeatedly trying to negotiate although conflict is inevitable, thus losing the position of strength while the enemy has time to regroup.

The general should not mobilize the army
out of anger or personal frustration.
--Sun Tzu

Do not make the same mistake as ancient Chinese emperors who appointed friends or family members as generals. Sun Tzu stressed the importance of appointing generals based on merit rather than nepotism, since these arrogant "royal" generals decimated entire states. The attorney-client relationship is so intense during divorce that lawyers find it difficult to maintain objectivity. Like the royal generals, your friends and family are too emotionally involved to maintain objectivity.

Any lawyer who has represented both you and your husband may have a conflict of interest and is probably not a divorce specialist. The "family lawyer" is a peacetime advisor; converting him into a Sage General is problematic. If your parents want to finance the divorce, fine; but make sure dad's old lawyer buddy does not get involved. Remember, this is your divorce; appoint your own Sage General.

Finally, never use the same lawyer as your husband since dual representation is unethical. Even the most amicable spouses have possible conflicts of interest. For instance, if your husband pays you alimony instead of child support, you pay taxes while he gets a deduction. You may want to save money by using one lawyer, but if you think a Sage General can serve two masters, think again.

Motivate Your Sage General
He who treats me fairly is my leader,
he who treats me cruelly is my enemy.
-- Ancient Chinese Proverb

While criminal lawyers see bad people at their best, divorce lawyers see good people at their worst, which often strains the attorney-client relationship. How can you overcome negative feelings and make the Sage General enthusiastic about helping you? Through common sense and subtle manipulation.

* Tell the Truth

If leaders are dishonest,
their directives will not be followed,
resulting in disorder.
-- Huainanzi

Lawyers are often embarrassed by their clients. Avoid humiliating your Sage General in front of a judge because you fed him misinformation. Your lawyer will never trust you again, and you can expect less zealous advocacy as a result. You also may be dropped as a client.


Place a monkey in a cage,
and it is the same as a pig,
not because it isn't clever and quick,
but because it has no place to
freely exercise it capabilities.
-- Huainanzi

You must tell your Sage General the whole truth. Certain unfortunate truths such as spousal abuse can help your case, so if you are an abuse victim, tell your lawyer. Whether or not the information is ever used, the lawyer cannot advise you properly unless he is fully informed. Derogatory information that your husband may use against you should also be included--next to the battlefield, courtrooms are the worst places for being ambushed.

* Pay Your Legal Fees

People may have wonderful traits,
but if arrogant and stingy,
none of their qualities
are worth consideration.
-- Confucius

Fee disputes are common in divorce cases. Parties often feel the system is unfair and refuse to pay for injustice. Law is like any other business; customers who don't pay their invoices may receive decreased service. While ethical canons require zealous advocacy, lawyers are human so do not expect zealous advocacy from someone forced to work without pay. If money is tight, show good faith by attempting to work out a payment schedule or reassure counsel that the bill will be paid.

* Treat Your Sage General Like a Human Being

Benevolence of leadership makes soldiers
charge ahead rather than retreat.
-- Liu Ji

Yes, lawyers do have feelings. Many clients are too wrapped up in their own problems to extend common courtesy to their Sage General. Lawyer abuse is counterproductive. If your self-absorbed behavior makes your Sage General miserable, do not expect him to make a one-hundred percent effort.

To enhance your attorney-client relationship, promptly return his calls; be accessible and leave forwarding numbers; do not ventilate as you would with a therapist; respect his space and avoid surprise visits; be responsive to requests for documents and information; and follow reasonable advice.

Sabotage Enemy Generals
Disrupt the enemy's strategic plans.
Next best is disrupting his alliances with diplomacy.
Attacking his army is least desirable.
-- Sun Tzu

Sun Tzu teaches defensive maneuvers and stratagems. You can deal devastating blows before declaring war by barring your husband's access to certain attorneys. Make appointments with those lawyers reputed to be the meanest in town and share confidences with them. Conflict of interest rules will prohibit them from representing your husband because you divulged confidential information. These countermeasures follow Sun Tzu's advice to "do great things while they are still easy." Here the "great thing" would be impossible without early interdiction.


Establish a Legal "Slush" Fund
The army is established by deceit,
moves for advantage, and adapts
through division and combination.
-- Sun Tzu

Sun Tzu stressed the importance of raising armies in secret thereby avoiding enemy's attack and defensive countermeasures. Your covert operation requires a secret slush fund since payments of legal fees may reveal your plans prematurely. You should establish your army by deceit. Financial transactions are of strategic importance to the enemy, no less important than knowing enemy troop strength and location. Congress, for example, conceals the Central Intelligence Agency budget for this reason. Never lose the element of surprise.

Pay cash for your initial interview, since cash is not easily traced and you avoid invoices coming to the house. Borrow funds for retainers from friends and family, and have them pay the lawyer directly to avoid having funds flow through your account. You can also make a series of non-suspicious cash withdrawals (traveler's checks work nicely) if friends and family cannot afford to make the loan. Finally, if the funds are drawn on your personal (not joint) account, use a bank money order to avoid having a canceled check with your lawyer's name on it.

Avoid having bank statements or legal invoices sent to the house by using a private mail box service such as Mail Boxes Etc. You may want to avoid using a US Post Office box since keys are marked "USPO-Do Not Duplicate," which may create suspicion if discovered. Private services use unmarked keys, and some have "counter pickup," eliminating the need for a key. If counter service is unavailable, see whether they will accommodate you for an additional fee; otherwise make sure the unmarked key remains undetected. Have your alibi ready in case you are spotted at the mail service by the wrong person. Perhaps you needed to use some of the fine packing and mailing services provided by these firms.

Right-brain Wisdom
When people think they know the answers,
they are lost.
When they know they don't know,
they find wisdom.
-- Lao Tzu

Selecting your Sage General cannot be reduced to a science. We have suggested a left-brained intellectual analysis, or as Lao Tzu would say, "you have gained knowledge by adding something every day." By the time you have interviewed several lawyers, your mind may be cluttered with data, including the valuable, the worthless, and the conflicting. For example, the most expensive lawyer may not be the best; the cheapest may be the least experienced.

You must clear your head from information overload--or as Lao Tzu would say, "to gain wisdom, remove something every day." Lie in bed or on your psychotherapist's couch, close your eyes, and try to shut off your "thinking" brain. Examine your feelings. Think of the first phone call, the interview, the follow up, and any other contacts or reactions you had after the initial meeting, no matter how insignificant. Sometimes the greatest insights are gained from the smallest details. Use your intuition, go with your gut feelings.

Summary

Sage generals are humbled by the wise,
follow good advice, act graciously but remain firm,
and are uncomplicated but create many strategies.
-- Sun Tzu

Your lawyer must be a Sage General who possesses a solid reputation, ample experience and wisdom, and keen negotiating skills. He should be accessible, responsive to your questions, and have a healthy psyche. Finally, the fee structure should be fair, detailed, and conflict free.

Ideally, your Sage General should be assertive and highly civil like Atticus, the trial lawyer played by Gregory Peck in "To Kill a Mockingbird." Too many lawyers needlessly inflame proceedings with gratuitous nastiness; aggression is not strength, but rather a sign of fear or weakness. It is contrary to the Tao and will recede.

The Way means inducing people
to have the same aim as the leadership.
-- Sun Tzu

The Sage General also welcomes your active participation since you are the best source of information and advocacy. Without your input, the lawyer is helpless--any lawyer who avoids your input cannot be a Sage General. Finally, your lawyer should know his place; the Sage General is not the Sovereign Ruler. But even the wisest sage needs spies in the field, and even the greatest Sovereign Ruler needs to build alliances. In Chapter 4, your role shifts from Sovereign Ruler to Sage Warrior, and you will learn how to use spies effectively and form alliances.

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The Tao of Divorce:
A Woman's Tactical Guide to Winning
(based on Sun Tzu's the Art of War)
© 1996-2003, Sun Yee
all rights reserved