South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

Most people do not have a clue how to find a good lawyer when they need one. In fact, statistics show that 68% of consumers spend two hours or fewer gathering information before selecting a lawyer.

1. Determine the type of lawyer you need.  In most states, a licensed attorney may practice in any field of law, but most concentrate on very specific areas. Most states (though not South Carolina) also have a process of specialization for attorneys. "In days gone by, most lawyers were general practitioners, meaning that they handled cases in a wide variety of practice areas. As the number of lawyers grew, the law became more complicated, and our society spread out, it has become necessary for lawyers to concentrate their efforts," says Michelle May O'Neil, a board-certified Dallas divorce lawyer . There are almost as many different practice areas as there are lawyers. For example, a lawyer who practices admiralty law might not be the best attorney to assist a person needing a divorce. Or, a construction lawyer might not be best suited for a real estate dispute.
2. Utilize referral sources.  One of the best resources to find a lawyer that does the kind of law you need is through other lawyers. Everyone should know at least one lawyer they could call and ask for a referral. Even if the lawyer you know practices criminal law and you need someone to prepare a will, the criminal lawyer will be able to give you some referrals in the practice area you need. There are also referral lists maintained by most local and state bar associations. The downfall of using these services is that there is usually no screening on the qualifications of the particular lawyer with the individual need. It is then up to the consumer to inquire sufficiently into the lawyer's experience compared to the need of the consumer.
3. Look online to research lawyers in the area you need.  The internet is an extremely beneficial source of locating a lawyer. Many websites maintain directories of lawyers nationwide. Most law firms these days maintain websites and usually you can find those through any search engine. Often lawyers are active in professional or community organizations which may be featured on a website. "My firm's website www.oneilanderson.com is a key tool in educating clients on what distinguishes my family law firm from another firm in Dallas," says Dallas Divorce Lawyer Michelle May O'Neil. "I find that most potential new clients read all or part of an attorney's website before meeting in person."
4. Meet in person with a couple of lawyers. The initial interview with an attorney that you are considering hiring is extremely important. Take with you to the interview all of the documents and other information that relates to your problem. Also take with you the names and addresses of the important people that have something to do with your case. Don't be afraid to ask your lawyer about his or her credentials. Ask how many cases similar to your's that she has handled. Prepare a list of questions to ask when you get there - what is the law related to your case? What are the realistic outcomes? What is the lawyer's philosophy for handling your case? Does she recommend an aggressive approach or one geared more toward settlement? Consider your comfort level with the attorney and the personal compatibility. Did you get a feeling of trust from the attorney? Did the attorney seem to know what she was talking about? Did the lawyer seem confident about your case? I never recommend that a person hire the first attorney they meet
5. Establish reasonable expectations.  Many people have never dealt with a lawyer before, so they don't know what to expect. First and foremost, you should expect frank, honest advice. Your lawyer should point out for you the strong and weak points of your case and give you a realistic expectation of the potential outcomes. She should keep you informed and send you copies of documents pertaining to your case. If a lawyer gives you a guaranteed result, run the other way!!! Lawyers are prohibited from guaranteeing any particular outcome, so be very leery if this happens. Don't expect your lawyer to act as a psychologist, financial advisor, tax planner, or to give any other advice outside of her expertise. If you need advice in other areas, consult a professional in that area.

Source: "How To Find A Good Lawyer When You Need One" by Michelle O'Neil, published at the Dallas Divorce Law Blog.

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Clients often wonder what they should wear to Court for their hearing.  The answer can vary depending on whether your case is contested or non-contested.  If your case is not contested, such as a no-fault divorce or approval of an agreement, then the following attire is recommended:

• For Men:  A nice pair of slacks and a dress shirt or golf shirt would be appropriate. A sports coat or suit may be worn but certainly is not required. Shoes and socks should be worn as “flip flops” are prohibited. Shorts are not permitted to be worn in the Courtroom, nor are tank tops, tee shirts, shirts reflecting foul or vulgar language or politically incorrect language, or hats.
• For Women:  A dress, skirt and top, or slacks and a nice top would be appropriate. As in the paragraph above, it would not be appropriate to appear in Court in shorts, a halter top, or a skimpy tank top, or flip flops.

In contested cases, where the parties will testify against one another, the Court's impression of each party is much more important, and the proper and/or appropriate attire for either party changes dramatically.  For instance, in a contested divorce or child custody hearing, wherein each party would be on the witness stand for protracted periods of time, the following attire would be appropriate:

• For Men: Same as above; however, a sports coat or suit could be worn but would not be considered mandatory. If the Husband/Father is seeking custody of his child or children, he would want to be dressed conservatively – nothing too flashy, nothing too out-of-the ordinary. For example, if a young Husband is seeking custody of his children, he could receive “negative” points if he appeared in Court in non-traditional attire such as Black Gothic Style clothing or wildly colored hair. Remember, that most Judges are older conservative individuals. If the Husband/Father has an abundance of tattoos, he should consider wearing a long-sleeved shirt to “cover” them.  Also, it would be advisable for the client to remove evidence of body piercings – ears, lips, nose, eyebrows, etc.
• For Women:  The main point to remember is that this is not the time to appear to be “hot” or “sexy” – especially if you are seeking custody of your children. You want to appear stable, sensible, warm and loving. Soft colors are better than bright and vibrant colors. Longer skirt lengths are better than short skirt lengths. You do not want to wear anything that would be considered “too short, too skimpy, too wild, too bold, or too sexy”.

Typically, clients should dress for Court as they would for church or an important job interview. If you are in the armed services, wearing your military attire is a very safe choice. If you look sloppy or inappropriate, the Judge may believe that you are showing or displaying a lack of respect for the Court.  Never forget that you have only one opportunity to create that “first impression”, so consider these “do’s and don’ts” in advance of your Court date and make a good impression with the Judge.

Source:  "How To Dress For Court – Do’s And Don’ts" by Robert L. Mues, published at his Ohio Family Law Blog.

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Do You Know the Answers to
These Important Questions?

Do you need an attorney? What should you consider when hiring a family law attorney? What are the most common mistakes spouses make when divorcing? What can you do to increase your chances of getting custody? How can you help your children during a Family Court case?

What mistakes can cost you a fortune? How can you protect yourself before filing for divorce? What steps can you take to reduce the pain and expense of divorce? How can you protect your assets during a divorce? How can you protect yourself when being accused of child abuse or neglect

Find out the answers in our free special report
“Guide to Family Law Cases in South Carolina”.
Request a copy by calling (864) 598-9172
or completing the form below.

 

Your Name:
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A question recently came before the Alternative Dispute Resolution Section Council as to what a lawyer's responsibilities are regarding payment of mediators in connection with a case.  The South Carolina Bar's Ethics Advisory Committee recently answered this question as follows:

Question:  What are a lawyer’s responsibilities regarding payment of service providers (court reporters, surveyors, mediators, etc.) in connection with a case?

Answer: The failure to pay a court reporter's fee in a timely fashion has been held by the Court to be conduct prejudicial to the administration of justice. In re Thornton, 342 SC 440, 538 S.E. 2d 4 (2000). Payment of other persons providing services in furtherance of an attorney's request is analogous.

Therefore, if an attorney hires a mediator, the attorney is responsible for ensuring timely payment. If the court orders a mediator, the attorneys should look to the courts for assistance in determination of how the payment will be rendered.

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Did you know that when facing a divorce, one of the most important decisions you make is choosing which lawyer to hire?  Unfortunately, too many people make the wrong choice and the consequences can be disastrous.

Michael D Sherman has written an excellent article on this topic, and the following are summaries of three costly mistakes and ways that you can avoid them:

Mistake #1:  Hiring a generalist.  

Solution:  Hire a specialist.  Ask the prospective divorce attorney whether they specialize in family law. If at least 70 percent to 80 percent of their practice not focused on divorce and family law issues, you should go elsewhere. 

Mistake #2:  Hiring a lawyer that bills you by the hour.

Solution:  Seek out a lawyer who will represent you on a fixed fee (a.k.a. a flat fee) instead of billing you by the hour. 

Mistake #3:  Hiring a lawyer to represent you solely because they have a reputation of being the meanest lawyer in town. 

Solution:  Find a lawyer who is assertive when he needs to be, compromising when it benefits your long-term best interests, and always aware of the many different consequences his actions have on you and your family. 

Source:  "Need a Divorce Lawyer? Avoid These Three Costly Mistakes in Hiring Your Divorce Attorney" by Michael D Sherman of the Alabama Family Law Blog.

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Did you know that you can get career advice from South Carolina Bar members on the South Carolina Bar's website?  Several Bar members, including Ben Stevens, participated in educational videos containing career advice, information on different types of law and tips for people interested in practicing in those areas.  You can view my video by clicking HERE or you can review all of the videos at Career Counsel on the SC Bar's website.

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You might not know that attorneys in South Carolina are appointed to represent indigent persons in various types of legal matters, including abuse and neglect cases filed in the Family Court by the Department of Social Services.  Most attorneys are appointed to handle at least ten (10) such cases each and every year, and some of these cases last well over a year themselves.

In the past, attorneys would be reimbursed nominal compensation of $40.00 per hour for handling these types of cases.  Of course, handling these cases requires that the attorney take time away from his/her other (paying) clients' cases and his/her family to do so.  Recently, our state legislature, the General Assembly, refused to appropriate sufficient money to fund this system, and the attorneys in South Carolina were notified approximately two weeks ago that no reimbursement would be forthcoming for any requests made after December 31, 2008.

The President of the South Carolina Bar, Flo Lester Vinson, issued the following statement on December 29, 2008, about this situation:

The Bar is deeply distressed over the announcement of the suspension of payment of legal fees to court-appointed attorneys in non-capital cases. Prior to this latest announcement, the General Assembly had failed to appropriate any recurring funding for cases involving abuse and neglect of children; the elderly and the vulnerable; termination of parental rights; appointments of guardians ad litem; and other matters heard in family courts across the state. The recently announced elimination of funds to provide representation for many of those accused of crimes further undermines the ability to protect the constitutional rights of our citizens. The Bar is appreciative of the efforts made to sustain the statewide public defender offices, but more resources must be made available and court appointments without compensation must cease.

South Carolina currently ranks 43rd out of 50 states in public defense spending. Public defense is a constitutional right and in many instances a legislative mandate, not a discretionary program. It is extremely disheartening to see that the resources for those seeking due process and competent representation are being compromised, rather than protected. Providing for the protection of constitutional rights through financial resources and personnel is the responsibility of the legislative and executive branches. The State's obligation should not continue to be borne by a small number of private citizens - the legal profession.

Virtually all attorneys in South Carolina are glad to be able to assist with this needed public service of representing indigent clients in these types of cases, but they want (and deserve) some compensation for doing so.  If you feel strongly about this issue, then please contact your state legislator to let him/her know your concerns and your feelings on this important issue.

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One of questions that family law attorneys are most frequently asked is some variation of "Can the other party be required to reimburse me for my attorney's fees and costs?" or "Will I be required to pay the other side's attorney's fees?" 

Many times, each party will pay his or her own attorney's fees ... but not always.  The cases in which one side will be required to pay the other's attorney's fees and costs typically fall into one of the following categories:

• Unequal Finances  ::  One spouse earns significantly more than the other, such as the husband earning $120k per year, whereas his wife's salary is only $40k per year.  This can also occur when one spouse has possession / control of significantly more assets than the other.  The Court usually tries to "level the playing field" as best it can.
• Clear Wins / Losses  ::  At the conclusion of a case, it is clear that the case was one-sided and the losing party had no realistic chance of prevailing.  For instance, the wife insists that she is entitled to receive alimony despite the fact that the parties' incomes are approximately equal and they have only been married for a very short period of time.
• Misconduct During Litigation  ::  One spouse engages in a pattern of conduct during the course of the case in order to increase his / her spouse's legal fees and costs.  This can happen when there has been excessive discovery in an otherwise simple case or where one attorney attempts to "drown" the other with correspondence and other unnecessary requests.
• Fault Ground Divorce  ::  If one spouse obtains a divorce on one of the fault grounds (adultery, physical cruelty, habitual drunkenness, etc.), it is not uncommon for the other party to be required to reimburse that spouse all or part of the attorney's fees, private investigator's fees, etc. incurred in obtaining the divorce.

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Potential clients often want to know "what type of lawyer" we are.  What they are really wondering is "are you aggressive enough" for them (whatever that might mean in that person's mind).  The problem is that the vast majority of the time, potential clients don't really know what type of lawyer they truly need for their case.  I don't intend for that statement to sound condescending, but too many times, someone mistakenly believes that they need the most aggressive attorney around to handle their case, when in all actuality, hiring such a person will do nothing but make their case last longer, cost more, and potentially end with worse results.

One of the premier family law bloggers, Michael Sherman, wrote an excellent article several months ago discussing this very issue, and he analyzed the different styles that family law attorneys can utilize in representing their clients, particularly what he classifies as "the lamb, the pit bull and the fox." Michael absolutely nailed this issue, and I couldn't agree more with his assessment of this issue.  His observations of these personas are listed below:

The lamb is the lawyer that just sort of goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the pit bull, who is exactly the opposite.  They hate to settle cases.  In fact, some of them won’t do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”   The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  And, so they work hard to maintain that reputation because it makes them a lot of money. 

The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests.  Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals.  They act only on instinct.  When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).  The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client.  Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the pit bull and the fox.

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs!  Instead, find yourself a fox.

Source:  "The Style of Your Divoce Lawyer: The Lamb, the Pit Bull, and the Fox" by Michael Sherman, published at his Alabama Family Law Blog.

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One of the most common complaints clients make about their attorneys is that they are difficult to reach.  I hear this over and over from potential clients seeking to change lawyers.  These complaints range from the failure to return telephone calls promptly enough to the attorney being completely impossible to reach for days or weeks on end.

Since Family Court cases deal with extremely important issues, such as child custody, financial issues, divorce, etc., clients are understandably anxious to talk with their lawyer when issues arise.  If I was in the client's shoes, the questions that I would want to have answered as part of my process of evaluating an attorney and his firm are:

• How long does it typically take to get in touch with the attorney?
• What methods of communication does the lawyer use and/or prefer?
• What are the law firm's office hours?
  
• What happens if an emergency arises after hours?

At Stevens ◆ MacPhail, P.A., we strive to return all telephone calls on the day that they are received or the following morning if they are received late in the day.  To avoid playing "phone tag" with our clients, our legal assistants schedule telephone conferences for the client to speak with the attorney at a specific time.  This process is a win-win situation for both the client and the attorney.  It allows the attorney to prepare for the call and have the file and other necessary information in front of him at the specified time.  Perhaps more importantly, it allows the client to have the attorney's undivided attention, instead of catching him in the middle of whatever else he was working on at that time.

Our firm also uses a great deal of technology, which helps us provide better client service.  Our clients are provided with the email addresses for their attorney (and his assistant), so that the client can provide necessary informaiton and ask questions when they arise.  Many clients find that email works better than phone calls in certain situations, as it gives them the time to organize their thoughts before submitting it to the attorney.  Our attorneys have laptop computers and often respond to clients' email at night or on the weekends.  Our firm also stores all documents electronically, which means that they can be emailed to clients at any time.

Normal office hours at our firm are 8:00 a.m. to 5:30 p.m. Monday through Thursday and 8:00 a.m. to 5:00 p.m. on Friday.  In special situations, we can make arrangements to meet with clients before or after our normal office hours.  If a true emergency arises, our attorneys are listed in the telephone book and can be reached at home.  However, since we have families too and enjoy spending time with them, we reserve the right to charge an additional fee for calls made to our homes.

These issues are important, and you should think about them when choosing an attorney.  In today's world, I don't think that it makes sense to hire an attorney who is not technologically savvy.  Having your lawyer efficiently use such tools as email, electronic document storage, cell phones, etc. can greatly improve your attorney-client relationship and result in you receiving better service and maybe a better outcome in your case.  The bottom line is that you should never hire a lawyer who won’t respond promptly to your needs.

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From The Oregon Divorce Blog:

If you are contemplating divorce, you should consult with an experienced family law attorney. Once you set up a consultation, be prepared for the first meeting, and have a list of questions to ask the lawyer. The following questions should help you understand the divorce process, how your lawyer’s office operates, and if the lawyer is a good fit for you and your case.

1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
9. What fees and costs can I expect other than charges for your time? Your local county will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

Source:  "Top 10 list: Top 10 questions to ask a divorce lawyer in the first consultation" by C. Sean Stephens, published at The Oregon Divorce Blog.

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What does Pro Bono mean?
Many South Carolina lawyers offer their services for free (pro bono) to clients who cannot afford to pay for help with civil legal matters. These matters include family, housing, bankruptcy or probate matters.

How do I qualify for pro bono assistance?
You must meet federally established poverty guidelines. To find out if you qualify, contact the Legal Aid Telephone Intake Service (LATIS) at (888) 346-5592. If you qualify, the South Carolina Bar Pro Bono Program will refer you to a lawyer. The Bar's Pro Bono Program is funded primarily through the South Carolina Bar Foundation and private Lawyers.

How long will it take the Pro Bono Program to find a lawyer?
This depends on the number of volunteer lawyers available in the county where the case will be heard and what the cases involves. It may take up to four weeks to find the right volunteer lawyer to take your case.

What if I am served with legal papers?
The Pro Bono Program is rarely able to accommodate emergency requests for a lawyer. However, if you are served with legal papers after the Pro Bono Program has received or completed your intake but before you have been referred to a lawyer, call the Pro Bono office immediately. If you are served with papers after a lawyer has taken your case, call the lawyer's office immediately.

How do I know when a lawyer has taken my case?
You will receive a letter from the Pro Bono office that gives you the lawyer's name and telephone number. You should call your lawyer during regular business hours as soon as you receive the letter.

How much will it cost?
The volunteer lawyer will not charge a fee. However, you may be responsible for any related costs, such as filing and service charges. The opposing lawyer may ask for lawyer's fees from you, but it will be up to the judge to decide if you should pay.

What if my income increases?
If your income increases after your first interview with Legal Services or the Pro Bono Program, contact the Pro Bono office. If your income increases after your case has been referred to a lawyer, contact the lawyer.

What should I take to the interview with my lawyer?
You should take any legal papers that have been served and any other documents related to your case. It is your responsibility to provide this information to your lawyer.

What if I decide to drop my case?
If you decide to drop your case, call your lawyer. Your lawyer will contact the Pro Bono office. If you simply fail to show up for an appointment or court hearing, your case will be closed by your lawyer immediately.

What if I cannot keep an appointment with my lawyer?
You must call and cancel any appointment you cannot keep as far in advance as possible. If you fail to call, your lawyer may close your case.

What if I move or change my phone number?
If your address or phone number changes, call the Pro Bono office with the new information. Be sure to let your lawyer know also.

What if I don't have a car?
You are responsible for arranging transportation to the attorney's office and to the court.

Source:  "Pro Bono Resources" from the South Carolina Bar.

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The following information is from the The Oregon Divorce Blog:

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

Source:  "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog.

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Robert L. Mues of the new Ohio Family Law Blog has published two excellent articles that examine the factors that one should consider when trying to select the “right” divorce lawyer.  You should read Part 1 and Part 2 of his series for more details, but his list includes the following items:

• Experience
• Past Client References
• Professionalism, Reputation and Integrity
• Lawyer’s Website
• Communication and Access
• Multi-Disciplinary Approach
• The “Hot Potato Shuffle”
• Guaranteed Results
• How Much Will the Divorce Cost?
• Fees
  

Source:  "How to Select a Divorce Lawyer Pt. 1 and Pt. 2" by Robert L. Mues, published at his Ohio Family Law Blog.

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Consider the following good, common sense advice:

If you’re like most people facing divorce, you have more questions than information. Even if you and your spouse have agreed on all of the terms of your divorce, you’ll have to follow specific legal procedures to formally terminate your marriage.

Every divorce case is different, and specific laws vary from state to state, but divorce cases generally follow one of two paths:

• The parties may reach an agreement, submit that agreement to the court for approval, and receive a divorce decree ending their marriage and setting forth the terms they’ve agreed upon; or
• If the parties can’t reach an agreement, the case will be scheduled for a contested hearing, where a judge will consider evidence like financial records, witness testimony, and expert reports on issues like valuation of property and custody arrangements.

Source:  "Talk to a Divorce Lawyer" by Helene Taylor, posted at The Modern Woman's Divorce Guide blog.

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New clients often ask their lawyer how they can help ensure a good result in their divorce and/or custody cases.  The following tips from Jeanne M. Hannah can help clients obtain good results and often save money in their cases:

• Be prepared. Clients can gather documents and information about important financial issues, which will help save your lawyer time, which will typically save you money.
• Be flexible and prepared to accept change.  Understand that financial resources can become stretched during a divorce, and the ability to compromise can be invaluable in helping reach a successful resolution in your case.
• Be truthful with your attorney. Your lawyer's ability to help you is only as good as the information that you provide to him.  If you fail to provide accurate and truthful information, you are only hurting yourself.
• Prepare to use specialists.  You will generally obtain better results if you use a lawyer who doesn’t dabble in family law. Sometimes, other specialists may be needed to help with various issues in your case, such as counselors, financial planners, business valuation experts, CPAs, and/or child specialists.
• Ask your lawyer for recommendations to a specialist.  Your attorney can typically refer you to well qualified experts when the need arises.
• Make a list of the goals, needs and interests that are important to you, ranking them in order of importance. Once you draft your list, verify that they are realistic, and then focus on them and don't get distracted.
  
• Be empathic to your spouse’s position.  By keeping all avenues of negotiation open, you can determine the other person's goals and thus what motivates him/her to settle. 
• Reduce conflict.  The more you can work to reduce conflict and work toward a solution, the more you can reduce your cost in any case.  Also, you should remember that conflicts consume not only money, but also energy.
• Remember, this isn't the end of the world.  At the end of the day, you want to be able to walk away, to take a break, and to start over while holding your head high, knowing that you  handled things in the right way.

You can read much more about each of these tips by visiting Ms. Hannah's blog.

Source:  "Preparing for Divorce" by Jeanne M. Hannah, published at her Updates in Michigan Family Law.

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Choosing the right attorney to handle your family law matter can make a significant difference in the outcome of your case.  Knowing what "type" of attorney to choose (and not to choose) can make the process easier on you and can result in a faster, better outcome.  Consider the following article by Victor J. Medina on this topic:

I recently fielded a phone call from a business colleague who told me that she had referred me to a friend for matrimonial work. She mentioned that when she was getting a divorce she found that her attorney became too adversarial and impeded the progress of the divorce. She told me that, from her perspective, the divorce attorneys were making it about themselves and not about the clients.
I cringe when I hear that kind of story. One of the hallmarks of our practice is that the client and his/her needs are at the forefront of our minds when dealing with the case. I’ve often told many clients in an initial interview that I have no ego in the case. I can’t tell you how many times I’ve swallowed insult after insinuation about me and my firm because retaliation would have been counterproductive. This type of pliability in a negotiation is necessary because the goal is more important than maintaining ground in the ego game.

I also often have clients come in asking “Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?” - I usually respond, kindly, that (1) yes, our firm can be all those things and (2) at this point, I’m not sure anyone knows what they’ll need in a divorce. A general way to state it is that they’ll need an attorney who can respond to the situation and can be what the circumstances warrant. I think there are a select few attorneys who can do that - at least in what I’ve encountered on the other side of the table. Most attorneys have one mode and have a reputation for being one thing. Those are the easiest attorneys to deal with (even the screamers) because you know what you’re getting from then and they’re rarely creative in their approach. That is, I almost never have to worry about not seeing the next move coming because it’s all so predictable. On the other hand, the crafty attorney is the one that never approaches the situation from the same angle. I’m on my toes with those attorneys because, having practiced that way myself, I know how crafty they can be.

The short of it is this - when you look for a divorce attorney or someone to handle your post-divorce family law matters, such as custody or support enforcement, seek out those attorneys for whom flexibility is a hallmark. In any divorce “battle”, you may need air strikes, sea power, diplomacy or a combination of four other things. If you restrict yourself to an attorney or law firm that specializes in air power with all the latest bombers, you’ll be vulnerable to the ground attack and may not avoid war altogether.

Was the war analogy too much? Just trying to get the point across.

Source:  "Choosing a Divorce Attorney - Flexibility is Key" by Victor J. Medina, published at the
New Jersey Divorce & Family Law blog.

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Over the years, I have also become much more selective in choosing which cases I handle.  When I first started practicing, I took virtually every case that came through my door, as most young lawyers do.  However, now that I am older (and hopefully wiser), I find that I probably reject as many cases as I accept.

These days, before I agree to take a case, I consider the following factors in determining if it will be a good fit with my practice:

1. Are the facts/issues in this case interesting to me?
2. Do I like the client and/or is this someone that I want to help?
   
3. Are there any good reasons not to take the case?
4. What impact will taking this case will have on my other cases?

One of the reasons that I practice family law is the wide variety of cases that I get to handle.  There are divorces, adoptions, child support cases, visitation disputes, mediations, etc., and the facts of each are different.  If I had to do something like real estate closings all day every day, I would very quickly lose my mind.  I mean nothing against attorneys that handle that type of work, but repetitious work does not interest me in the least.  I find that taking cases that are intellectually stimulating makes it enjoyable to come to the office every day.

In a family law practice, I get to interact with people from all walks of life -- doctors, salesmen, CEOs, factory workers, retirees, and even other lawyers.  All potential clients bring their own unique characteristics with them, which can make a case more or less appealing to me.  I consider things such as the client’s personality, expectations, reasonableness, and need for my services.  I keep in mind that if I take the case, I will be spending a lot of time with that person, and therefore I am selective in the cases in which I choose to invest my time and energy.  Besides, I believe that having a "likable" client makes me want to give 110% to that person's case.

I also consider whether there are any good reasons that I should not take the potential client’s case.  For instance, if the client wants me to cut corners or engage in questionable actions, I will not accept the case -- no matter how much the client wants to pay me to do so.  If someone is rude to my staff, I will decline the potential representation.  There are also a few attorneys with whom I prefer not to work, and I will often refuse to get involved in a case if they are involved on the other side.  I have found that it is simply not worth it to deal with certain attorneys’ shenanigans, but fortunately only a few people fall into that category.

Finally, I consider the effect that the potential case will have on my overall caseload.  For instance, I am often asked to handle a case in another part of the state.  I enjoy the opportunity to visit other areas of my state, but before I agree to accept such a case, I consider the amount of time that I will be required to be away from my office and my other cases.  When I am asked to get involved in a “high profile” case, such as one involving a politician or other local celebrity, I must consider the additional time that these cases require.

I am not claiming that these are the only ways to determine which cases to take, but I believe that these criteria work well for me.  I believe that letting potential clients know this information can benefit them in assessing whether I am the right attorney to handle their case.  I invite other attorneys to submit their client selection criteria and/or thoughts on these issues in the comments section below.

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Today's traditional thinking is that everything has to be bigger, better, more, and faster.  For example, consider fast food restaurants.  They offer jumbo size meals, and serve billions and billions, but is that what consumers really need?  For instance, have you ever heard anyone bragging about the wonderful dining experience that he/she had at the "burger palace" last night?  In fact, when is the last time that anyone has eaten at one of these places and not felt at least a little queasy later?

While the bigger/more concepts might seem like a good idea in some settings, the same principles should not be applied to professional service providers.  Some lawyers handle a high volume of cases, and many good lawyers lose their passion for their work as a result.  I did not want to find myself in that position, so just over two years ago, I made a decision to change the way that I practice law.  I decided to handle a lower volume of cases so that I could provide better service to my clients.  I was providing "good" service at that time, but I wanted to provide "great" service.  Why?  Because that's what I would want if I were the client and because that's what I believe clients deserve.

Some clients complain that they can never get in touch with their attorney.  Instead, they are forced to rely on the paralegal or secretary as their primary (and sometimes only) contact at the law firm.   While that might be alright in some situations, such as asking if a document has been received, etc., I believe that it should not be the regular course of business for more important issues in a case.  While having an excellent staff is important, the client has hired the attorney to handle the case, and not the attorney's staff.

Before I implemented these changes, my active case load was around 150 cases, and I estimate that it was roughly 60% family law cases, 25% personal injury cases, and 15% other cases.  Now, I only handle 50 to 75 cases at any given time, with over 85% of them being family law cases.  The lower case volume allows me more time to think about all of the various aspects of each case and to give each on the time that it deserves to make sure that it is handled the right way.

If you are a client or potential client, consider these factors and ask the attorneys you interview how many active cases they currently have, and then decide how comfortable you will feel being one of that number.   If you are an attorney, give some thought to reducing your number of active cases so that you can provide better service to your clients.  Don't they deserve it?

Continue Reading...

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Following up my posts (here, here, and here)over the past several weeks about using fixed fees instead of charging by the hour, I learned that a Boston firm has banned the billable hour.  In fact, the Shepherd Law Group has gone so far as to tell its clients that if they insist on having attorneys who bill by the hour for their time, they should retain another law firm!

The firm's founding partner, Jay Shepherd, says "Hourly billing is wrong, and it's anti-client.  There's a disincentive to be efficient since you get paid more if you take longer to finish a matter—even though the client wants it to be finished as fast and efficiently as possible."  I agree with Mr. Shepherd, and I made many of those same points in my prior posts on this subject.

On his blog, Gruntled Employees, Mr. Shepherd proudly stated that "during 2007, Shepherd Law Group has billed exactly 0.0 hours."   His post references several other articles that discuss the problems with the hourly billing model, and it is well worth a read.  Also, the Boston Globe published an article last week which takes a close look at this same issue.

Source:  "Boston Law Firm Bans Billable Hour" by Martha Neil, published in the ABA Journal Weekly Newsletter.

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My two articles published last week (here and here) on the subject of using fixed fees in family law cases have created a bit of a buzz.  Some bloggers, like Grant Griffiths of the Kansas Family Law Blog, agree with me.  Mr. Griffiths writes that he has been using fixed fees in his family court practice for over three years, and he agrees with me that this method benefits both his clients and himself.

However, others, such as Daniel Clement of the New York Divorce Report disagree and still advocate the "hourly" billing model for his family law cases.  Mr. Clements questions whether fixed fees are appropriate in anything other than "simple" cases, i.e. those that are limited in scope, and he believes fixed fees to be inappropriate in more involved cases.  He focuses his concern on the possibility that parties in family law cases might take "irrational and economically untenable positions fueled by emotions."

I probably had the same type of concern before I began handling cases in this manner.  However, after using this method for a few years, I can say from experience that it is unfounded.  Among other things, I use the following two methods to help prevent this from being a problem in my practice:

1. I am very, very selective in choosing which clients I agree to represent.  I estimate that I reject approximately one-half of the potential cases that I could accept.  I only agree to represent those clients that meet the following criteria:  (a) the client's goals in the case are reasonable; (b) the client is willing to help my office work on his/her case; and (c) the client is someone that I truly want to help.  There are other more subtle criteria that I subconsciously apply, and I will admit that a lot of it is done by "gut feeling".  However, after doing this for so long and handling so many cases, my gut feeling is right the vast majority of the time.
   
2. In most family law matters, I usually break the case down into different phases, at which portions of the fixed fee will be due and payable.  This can be done in different manners, such as by time or by status of the case, but the point is that if a case gets resolved during any particular phase, there are no additional attorney's fees due.  This scenario gives the client incentive to help resolve the case sooner rather than later if a reasonable resolution is possible, but at the same time, the client is protected and knows his total cost if it is not.  Having all of this information available to the client up front helps him/her better assess any settlement offers and the case in general as it progresses.

Mr. Clement's post made me wonder about his thoughts on these questions:

1. How does he handle "unreasonable" clients that he is representing on an "hourly" basis?  I believe that the problem he references is more with the clients themselves than with the manner of charging for the attorney's time.  Back when I did charge by the hour for my time, I would typically withdraw from the representation if my client was acting unreasonably.  I still have that same option available to me now while using a fixed fee, but it is very rare that I have to exercise that option because of my stringent client selection criteria as discussed above.  Either way, I do not want to represent unreasonable clients, period.
   
2. Does he agree with the harsh opinion expressed by Robert Hirshon, former president of the American Bar Association, that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity”?  I believe that clients don’t care how long it takes you to produce those results – they only care about the results themselves.  I believe that the hourly rate can encourage (or at least reward) inefficiency on the attorney's part, because the longer it takes to do something, the greater the fee charged to the client.  Also, if I were the client, I know that I would feel uncomfortable in effect writing the "hourly basis" lawyer a blank check and hoping that he/she keeps the fees as low as possible.
   

I challenge Mr. Clement to handle just one case on a fixed fee basis and to then post his thoughts about doing so.  I am confident that should he do so, he will quickly see why I am such an advocate of this method.  I handled cases on an hourly basis for over a decade, and I can say without hesitation that the fixed fee basis is vastly superior for both attorneys and their clients.  I invite others to let me know their opinions on this topic by posting their comments.

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Why is it that most family law attorneys handle cases on an hourly basis?  Did they consider and evaluate the many different billing options that are available and then conclude that this was the best one?  I doubt it.  I believe that the reason that attorneys use that archaic method is simply because that was the way they were taught or the way it has always been done at their firms.

When presented with the possibility of handling cases on a fixed fee basis, most attorneys say that domestic cases are too unpredictable to enable them to establish a fee with any confidence.  However, I believe that is a cop out answer.  The fact is that insurance actuaries establish premiums for things such as floods, earthquakes, hurricanes, and even death – all of which are certainly more difficult to predict than Family Court cases.  If they can do it with some level of precision, why can’t attorneys?  The answer is that we can and we should.

Attorneys benefit in the following ways from handling family law cases on a fixed fee basis:

• No longer having to track every minute of every day will mean that the attorney is no longer a slave to the billable hour.  For most attorneys, tracking time is a stressful, cumbersome, and tedious process.  It is inconvenient and counterproductive to have to continuously stop working on clients' cases to record what time was spent on each one, and then to track and review the recorded time at the end of each day or week.
• The attorney will gain several extra hours per week that used to be spent recording time, and this newly found time can be spent working on clients’ files, spending time with family, or relaxing – all of which are better than chasing the tail of the billable hour.
• Even more time will be saved by not having to send out as many bills per month, record and process the payments, and deal with the trust accounting issues that are involved with retainers.
• There should be no disputes with clients over the amount of a bill and/or no questions to be answered about the amount of time that was spent on a given activity, because the amount charged for the services was negotiated and agreed upon before the representation began.
• Handling cases in this manner gives the attorney the ability to decide up front if he/she wishes to represent someone for a reduced fee, such as military personnel, teachers, or other public servants.
• There are other benefits to the attorney, such as the additional leverage gained when establishing fees in this manner and the ability to deposit these fees directly into the attorney's operating account if the fee agreement is drafted properly.

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The American Bar Association released a report just over five years ago that was very critical of the “standard” way that many (if not most) attorneys charge their clients for their services.  Its conclusion was that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity.”  To me, that doesn't sound like it contributes at all to what should be the attorney's ultimate goal -- providing clients with the best possible service.

Approximately two years ago, I began handling all family law cases on a fixed fee basis instead of charging by the hour as I had done for many years.  When a client hires an attorney on an hourly basis, that client is basically writing the attorney a blank check and crossing his/her fingers hoping that the total fees are what he/she anticipated.  I know that if I was the client, I would definitely prefer the certainty of knowing the total cost instead of hoping for the best.

Specifically, I believe that clients receive the following benefits from hiring attorneys for a fixed fee:

• Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs. 
  
• Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
  
• Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
• This method encourages open communication from the client to the attorney.  In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
• Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.

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Approximately two years ago and after much thought, I decided to stop handling family law cases on ah "hourly" basis and to instead handle them on a fixed fee basis.  It was probably the best thing I've ever done for my practice.  My clients love the many benefits of this fee method, such as the certainty of knowing the total cost of their case before it begins, and my quality of life has improved because I do not have to track every minute of every work day.  I am not the only proponent of fixed fee billing in domestic cases, as you can see from the following article published at the Pennsylvania Family Law Blog:
 
It has long been my belief that the billable hour system, by which many attorneys charge their clients and earn their livings ( and as I do, too for some matters, by way of disclosure) creates an inherent tension between the attorney’s interests and those of the client. If the attorney is being paid by the hour, doesn’t he or she benefit from taking as much time as possible, or at least as much as the client will be willing to pay for, in completing a task? Of what possible benefit is this to the client? This is a primary reason that I have started to use alternative fee arrangements, such as flat fees, staged fees and success based fess and the like, for more matters, with the goal ultimately of using such arrangements in all cases. It is my view that legal fees, like fees for any other service, should be based on value added. Even some in biglaw are now seeing the light. In an article in the August 2007 issue of the ABA Journal, best selling author and Chicago litigator Scott Turow fairly well lays bare the flaws in the billable hour system. Whether Turow’s large law firm colleagues follow his lead or not, however, I intend to continue to pursue a full transition to alternative fees. My clients deserve nothing less.

Source:  "Burying the Billable Hour" by Mark E. Jakubik, published at his Pennsylvania Family Law Blog,

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I have previously posted thoughts about what makes someone the perfect client.  The article below gives another view on this topic from The Oregon Divorce Blog:

What a lawyer thinks of as a “perfect client” in the domestic relations sense is a client who helps the process of the dissolution, custody, or support matter along. We know how hard this process is to be going through, but it can be a much more difficult process the longer it drags on — and a much more expensive one for you. (Although we like getting paid as much as anyone else, we believe we should be problem-solvers, not problem-creators.)

Good attorneys will always treat their clients — all of their clients — with the same professionalism and respect they treat any other client. However, by helping us help you, you can make the process smoother, lower your costs, and get a better result! Here are some things you can do to help your attorney in your domestic relations case, to make things run more smoothly.

• Tell us everything — the good, the bad, the ugly. We want to know the nastiest things the other side might throw at us, true or not. If you have hidden sources of income, a stake in Anna Nicole Smith’s love nest in the Bahamas, or a rare coin collection, we need to know and plan accordingly.
• Provide us with your tax, banking, investment, insurance, titles to cars and whatnot, and any other requested information quickly in the process (if you can bring this stuff to your first meeting, we might very well cry with joy). If you’re not in a place where you can get the information, sign a release that allows the attorney to request the information on your behalf.
• Keep in contact with us. We’ll provide you with frequent updates, but there are times when we need to get in contact with you quickly, too.
• Similarly, let us know the best way to contact you. If you’re one of those people who hates checking her voicemail but lives on her computer (wait, that would be me when I’m at home), let us know your email address and if that’s a better way to stay in touch.
• Understand that a contested divorce may take a while, even if it ultimately settles. We want closure for you as soon as we can get it, too, but not at the expense of a good settlement for you.
• If your case involves child custody, parenting time, or support, sign up and follow through with the mandatory education classes as soon as you can.
• Remember that your attorney is there to give you expert advice and recommendations, but isn’t going to be able to make the final decision about whether or not you should take a settlement. He can and will tell you if it’s a good idea or a bad idea, and what the benefits and pitfalls of an offer might entail, but the ultimate decision is going to be yours.
• Also, if you don’t like the way negotiations may be headed, if you change your mind about the way the case is going, or if you’re just generally unhappy about something, please say so. We’d much rather know about it (and fix it) than to find out much, much later that you’d been unhappy for a very long time.

Advice aside, we know that this may be the, or one of the most difficult times of your life. We treat all of our clients as we would hope to be treated under the same circumstances: with diligence to their case, courtesy, the utmost respect, and the highest level of customer service possible.

Source:  "The Perfect Client" by C. Sean Stephens, published at The Oregon Divorce Blog.

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Too many people don't know what to look for when they are considering which divorce lawyer to hire.  Most people who are interviewing family law attorneys are in a very stressful situation, typically one that they have not been in before.  Making an important decision during a particularly stressful time can be a recipe for disaster.

DivorceZone published an article that can be helpful to people facing this situation.  This article points out that not all lawyers are created equal, and I would add that not every lawyer is "right" for every case.  It is more important in family law cases than other cases that the attorney and the client have a good, working relationship and understand each other.  This article lists the following important points to consider when hiring a divorce lawyer:

• Specialization. The reality is that the law is extremely complicated and no lawyer, not even a so-called “general practitioner” can really master more than one or two main areas of law. Divorce law itself grows more and more complicated each year. You should choose a lawyer who practices primarily or exclusively in the area of divorce and family law.
• Knowledge. Given the high hourly rate you’ll be paying your divorce lawyer, you don’t want to have to pay to give your lawyer a legal education. You want a lawyer with substantial knowledge in divorce and family law issues, who already knows the law and how it applies to your situation.
• Experience. There are a lot of complexities to divorce law that you can’t simply learn from a book. For instance, often being able to determine the correct range of alimony that’s appropriate in your case is simply the result of seeing many cases with similar facts. While every divorce case has its unique twists, you will come out ahead if your lawyer has substantial experience.
• Good Communication. The biggest beef clients have with divorce lawyers is that their lawyer does not return their telephone calls, emails or other communications promptly. You should find out what a prospective divorce lawyer’s office policy on this. Also, see how long it takes for your prospective lawyer to return your initial call – this will give you a good idea as to the level of service you can expect.
• Local Knowledge. Part of the job of a divorce lawyer is to know the attitudes of the local judges and how best to tailor your case for them. As well, even if you never set foot inside a courtroom, it is helpful if the lawyer has experience dealing with your spouse’s divorce lawyer.
• Time. Does the divorce lawyer limit his practice to just a few select cases so that he can concentrate on his clients and give them good service, or do they take all clients who walk through their doors? The reality is that the amount of work to resolve successfully the issues arising from a divorce can be quite substantial, and your lawyer will need the time to deal with this.
• Fit. It’s important that you and your divorce lawyer get along well. This doesn’t mean that you have to be good buddies with your divorce lawyer and want to invite them to dinner. However, you’ll be going through some of the most difficult experiences in your life with this person. You’ll be revealing some of the most intimate details of your personal and financial situation to this person. Your relationship with this person will last quite a long time. So, it’s important that you’re comfortable with your divorce lawyer.
• Compassion. It’s important that your divorce lawyer be understanding of what you’re going through. Are you just a file number, or does your lawyer really care who you are and what you want?
• Independent. Ultimately, your divorce lawyer’s job is to fight for you and your rights. However, many lawyers have political ambitions or care more about getting along with other lawyers than giving zealous representation. You want an independent lawyer so that your needs are not sacrificed so that your lawyer can avoid irritating a colleague.
• Plan of Action. Is your divorce lawyer able to articulate a plan of action that they are going to take to resolve your case? If not, you will find that your case just seems to amble in no particular direction, raising your legal fees without accomplishing much.

Source:  "How to Hire the Right Divorce Lawyer" published at the DivorceZone Divorce and Family Law Blog.

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A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

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As I have discussed previously on this blog (here, here, and here), one of the most important choices that someone facing a family law issue can make is the choice of an attorney.  Choosing the right attorney can increase your chances of reaching a successful outcome, while choosing the wrong attorney can lead to an expensive, difficult, and disappointing result. 

The following checklist of important factors in choosing an attorney to handle your divorce, custody, legitimation, or other domestic relations cases was written by the attorneys at Rockhill Pinnick, LLP, and published at DivorceNet.com:

I have found that when most people are looking for a lawyer to handle their divorce, custody modification, or other related family law issues, they often ask whether the other attorney is tough, a fighter, or will tell me that they heard that their wife's attorney is a shark (or worse).

Everyone wants a family law attorney who can handle the stress and strain of the courtroom appearance, and any lawyer can claim that he is tough, just like any politician can claim that he or she will represent you. Being tough almost goes without saying, and it is too easy to say.

Persons looking for a family law attorney should instead be aware of the following qualities. These are all things that a client can assess on his or her own relatively quickly, and should discover before it is too late.

1. Stays Calm.

Your attorney has to be able to stay calm and patient. Both sides in a divorce are usually far from calm, and the children, grandparents, and other people having to suffer the fallout from a divorce will be panicky as well. Your family lawyer should be able to deal with you in a calm, controlled manner. He should show patience with you and with the other side. Panicking rarely, if ever, solves a problem.

2. Is Willing to Say No…. Even to You.

A good attorney is candid about your chances in obtaining an outcome on a particular issue. That attorney should also tell you if you are doing something wrong, or if you are wasting your time. Simply because a client wants something does not mean that it is the best thing for a client, or that it is the right thing to do. 

While some clients get upset when they find out that their attorney will not do everything that they are told, this is just the type of attorney that you should be seeking. Otherwise, your attorney will quickly get a reputation of asking for frivolous things or taking positions on issues that he knows the court will not adopt. That makes it tougher for that attorney to be successful on truly close issues. Also, you are paying good money for that attorney, and you deserve the best advice, not just what you want to hear.

3. Uses Technology.

Property division, pension allocation, child support issues, and many other matters relating to divorce and custody rely on software programs to make efficient, intelligent decisions. If your attorney is not up-to-date on these issues, and is still using pencil and paper to formulate a property division, he is behind the times. He should also be able to communicate with you by email, and discuss the opportunities and advantages of electronic communication when parents and children are living apart. If your attorney has not kept up-to-date on technical issues, it is unlikely that he has kept up-to-date on legal issues either.

4. Knows the Playing Field.

Your attorney will not be able to predict the future. He will not always know how a particular issue will be decided. He should have enough experience with the judge, with the law, and with the other lawyer to intelligently analyze the probabilities.

If you are asking your attorney to travel to another county or jurisdiction, he should discuss with you what he knows, and doesn’t know, about the judges and lawyers in that area.

5. Puts Your Children First.

The client’s children need to be the number one priority for both the client and the attorney. No one should abuse, misuse, or manipulate the children in a divorce case. It is really that simple.

6. Keeps His Eyes on Important Issues.

I once had an opposing attorney send me a letter vilifying my client, and demanding that I take action to make sure that my client (who was living in the marital home and had the family’s personal computer) immediately email her client’s resume to her. Given the fact that the woman was less than 25 years of age, I would have thought that she could probably remember where she went to high school, and what jobs she had held. This attorney was simply not willing to tell her client that this was not an important issue in the greater scheme of things, and that she should probably save her money for more important issues. Likewise, a client once asked me to file a contempt action after a final hearing in a divorce action. When the personal property was divided by the court, the client was to get a 60-foot garden hose from the side of the garage; he was certain that the garden hose’s disappearance was an intentional act to irritate him. I explained to him that it would have to be one heck of a garden hose to justify filing a contempt action, and again suggested that he spend his money in a more important area. An attorney who gets distracted in court by pursuing arguments about whether a bicycle should be in the mother’s home or the father’s home will not be as effective in front of most trial judges in dealing with the more important issue of where the child should be.

7. Is Open to Questions.

Your attorney should answer your questions. If he cannot, he should tell you why not. If you do not think that you are getting a fair answer to your question, then write him a letter or send an email. Frequently attorneys think that they have answered questions, but the client is still confused. Do yourself a favor and the attorney a favor and be sure to ask again. If you cannot receive an answer after that, then that attorney may not be for you. (Caveat: remember, your attorney cannot predict the future. If he could, he would be betting on football games in Las Vegas, not meeting with you at 4:30 p.m. on a Friday afternoon when the sun is shining, the fish are biting, and the beer is cold).

8. Makes a Good Presentation to You.

Remember, as a potential client, you are a potential boss. If an attorney does not behave, dress, and talk in a manner that provides good presentation to you, what makes you think he will do any better to a judge?

9. Is Trustworthy.

In the popular media, sometimes people think the best lawyer is the one who is the sneakiest, or plays the closest to the edge of ethical, moral, or legal behavior. Resist the temptation to hire an attorney who acts like that. Judges will not let attorneys get away with that behavior for very long; opposing counsel will be much more difficult to work with (meaning you will be spending a lot more money); and ultimately you will have a more contentious divorce, with nothing to be gained to compensate you for the increased bitterness and expense.

10. Solves Problems.

If the attorney you are interviewing for hire simply talks in terms of winning and losing, get up and leave. By definition, every person going through a divorce suffers some loss, and certainly children are losers no matter what the outcome. What you want is an attorney who works to identify the problems and solve the problems. Solutions to these problems may come by counseling, a word of wise advice to you, patience, mediation, or possible trial in front of a judge. No options should be foreclosed. Five years after the divorce, you will not be able to remember who “won” or “lost,” but you will remember whether the divorce was too expensive, whether your financial settlement or division was extremely unbalanced, and how your children either suffered or survived after resolution of your case. An attorney who does not work to solve problems before going to court will not be a good family law attorney. "

Source:  "Ten Things To Look For In A Family Lawyer" by Rockhill Pinnick, LLP, published at DivorceNet.com.  Thanks also to Stephen M. Worrall for his post on this subject at his Georgia Family Law Blog.

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In several cities throughout South Carolina (including Spartanburg), an outfit called “A Divorce Fast” is advertising legal services in the attorney listings in the Yellow Pages.  Apparently, this company provides draft legal forms to the public for a fee, but it is not affiliated with any law firm and employs no lawyers.  The worst part is that the Clerks of Court do not accept those documents as a valid filing, which means that consumers are being bilked out of their money with nothing to show for it.

The South Carolina Bar is supporting pending legislation (H. 3274) which would, among other things, make the unauthorized practice of law a civil cause of action.  I understand that this bill is scheduled to be in front of the House full Judiciary Committee tomorrow, but that it is meeting  with some resistance by the realtor and banking communities.  One would hope that our legislature would take this important step to assist the Bar in helping to protect consumers in South Carolina from unscrupulous companies such as “A Divorce Fast."

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There is a growing trend of attorneys and law firms "branding" themselves by representing only mothers or fathers in family law cases.  The Wall Street Journal published an article last week on this subject, with particular attention to firms that are catering to men.  Some of these firms market themselves as "A Partner Men Can Count On" or the "Divorced Guys' Guys."

My question is whether this approach truly benefits the client?  I believe that by limiting oneself to only representing one gender, attorneys lose the ability to analyze cases from different points of view.  In fact, whenever I handle a contested case, I spend a great deal of time looking at my client's case from the opposing party's perspective to analyze its strengths and weaknesses.  One of the things that enables me to do this effectively is because I represent both men and women.

Randy Kessler, a noted family lawyer in Atlanta, Georgia, believes that firms who only represent one gender can make judges skeptical of their arguments: "It is much better to have a reputation for representing each client based on the facts of their case, regardless of their gender."  I agree with Mr. Kessler's assessment.

Source:  "Law Firms Pitch Themselves As the Divorced Guy's Guys" by Ann Carrns, published in the Wall Street Journal. Thanks to Diana L. Skaggs for her post on this subject at her Divorce Law Journal.

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Once you have met with the attorney, explained your case and had your questions answered, there are some questions you should ask yourself:

• Will I feel comfortable working closely with this person?
• Do I feel confident in the lawyer’s experience and skill to handle my case?
• Do I understand the lawyer’s explanation of what my case involves?
• Do I understand the proposed fee agreement?

If you feel comfortable with the attorney and confident that his experience is adequate for your case, you have probably found a good match. Asking and answering the above questions will go a long way in determining if this is the right attorney for you.

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Michael Sherman of the Alabama Family Law Blog has begun a series of posts on the steps to take when it becomes apparent that a divorce may be imminent.  His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation.  Here is Step 1:  Find a Wise Guide:

An experienced divorce lawyer I know is fond of telling his clients that you don't need a lawyer to get a divorce, but you need them for the consequences of your divorce. He is right. You can likely get a divorce by finding some forms on the internet or hiring a lawyer that advertises for cheap uncontested divorces. If you have no children, a marriage of only a year or two in duration, no assets or debts have been accumulated during the marriage, and you and your spouse agree on everything, then you probably don't need a divorce specialist.

Look for a lawyer that has at least 5-10 years experience practicing primarily divorce and family law. Find out the lawyer's philosophy regarding litigating cases versus settling them. My personal opinion is that you should want a lawyer who makes it a priority to attempt to acheive a fair settlement for you, but who is capable and willing to litigate the case before a judge.

Source:  "Step 1: Find a Wise Guide" by Michael Sherman, published at his Alabama Family Law Blog.

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Once you explain the facts and background for your case along with any relevant information, it will be your turn to ask questions of the lawyer to determine if he is the right one for you. Some of the questions you might consider asking the attorney are:

• How long has the lawyer been in practice?
• How much experience does the lawyer have in your type of case?
• How does the lawyer believe the case should be handled?
• What is the lawyer’s anticipated time frame for its completion?
• How will you be expected to participate in your case?
• How will you be kept informed about the status of your case?
• Will the lawyer provide a fee agreement that details fees, expenses, billing, and payment?

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Choosing the right attorney can be crucial to the outcome of your case. There are certain things you should know in order to help you with the sometimes difficult process of choosing the right attorney. Not only will this save you time (and maybe money) when meeting with your attorney for the first time, but it will also help you to become more knowledgeable about the issues you may want to consider during the critical process of hiring an attorney.

It is always a good idea to meet face to face with an attorney to get a feel for how comfortable you feel working with him. Because of the types of personal issues that arise, it is particularly important that you feel very comfortable with who represents you in Family Court. You should also be prepared for the possibility of rejection. The attorney-client relationship is a two way street, and the better attorneys do not accept every case that comes into their offices.

Before meeting with an attorneys, you should try to make notes pertaining to your case and also to bring all of the related documents with you to your first meeting. These documents may include Orders from previous cases, pleadings in your present case, witness statements, or reports from medical providers, private investigators, or law enforcement. Being able to present the facts of your case in a clear and organized fashion will greatly assist us in analyzing your situation and will result in you receiving better, more specific advice.

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Parties involved in Family Court cases face some of the toughest issues that people must deal with in their lives. Divorce and separation cases involve the loss of a partnership and the end of a relationship that was once close and filled with love. Custody and visitation cases affect the amount of time that a parent spends with the most precious thing in his or her life. Other cases involve financial issues which can determine whether a party has enough money on which to survive in the short and/or long term.

When faced with these important issues, most people want to seek the advice and assistance of an experienced, competent attorney.  Ideally, you want to find an attorney who is not only trained in and very knowledgeable of the law, but who also has experience in preparing documents, courtroom procedure, settlement negotiation, and other aspects of Family Court cases.  Hiring an attorney will help things to run more smoothly in your case and will increase the likelihood of your receiving a favorable result in your case.

Although it is possible to represent yourself in Family Court, it is not advisable in the vast majority of cases. Should you choose to represent yourself, the Court will not be able to assist you with your case in any manner. You will be held to the same requirements of the other party’s attorney with regard to the law, procedure, and all other issues. Should you mishandle your own case due to lack of knowledge or lack of skill, it is unlikely that an attorney will later be able to undo your mistakes.

Typically during your first meeting with an attorney, he will be able to assess your case and advise you of your rights and options in light of the specific facts of your case.  Considering the types of issues addressed in Family Court cases, you must be comfortable sharing with your attorney information that may be personal or otherwise confidential.  Certainly, doing so may be uncomfortable for you, but these types of details can make a big difference in your case.  Your lawyer must be aware of everything that might pertain to your case, so it is important that you be comfortable in sharing these details with another person.

Though many people may balk at the cost of hiring an attorney, the fees charged are usually worth the experience and professionalism that an attorney can bring to the courtroom. There are certain areas of the law in which an experienced, aggressive attorney is highly recommended in order for you to have a fair trial or to negotiate the settlement that you deserve.  If you had to ask yourself whether you need an attorney -- you probably do and you'll be glad later that you did.

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In Family Court cases, it is not uncommon for people to make remarks to intimidate, upset, and/or cause stress for each other. Because of the close relationships the parties previously had with each other, they usually know just which remarks to make to cause the maximum response on the intended victim.

Since these types of comments unfortunately are made all too often, our firm strives to make our clients and potential clients aware of them to help minimize their impact. We urge our clients to refrain from making these types of remarks, as they only create more stress for them, more work for us, and more expense in their cases.

These typical remarks can include some or all of the following:

• “I am going to drag this case out forever. By the time you get your share of the property, you'll be too old to enjoy it.”
• “If you persist in your financial demands, I am going to file a custody action and take the children away from you.”
• “I’ve got the best lawyer in town. He’s going to crush you and your lawyer.”
• “My lawyer is mean. He’s going to make your life miserable.”
• “Your lawyer is a crook. His only interest is to drag out the case in order to make more money.”
• “You've gotten yourself the most expensive lawyer around. The two lawyers are going to eat up all of the assets that we acquired during the marriage.”
• “My lawyer knows all of the judges. There’s no way that you are going to get a decent result in Court.”
• “I was ready to give you a fair settlement. Now that you got a lawyer, I am going to play hard ball and you're going to end up with much less than I was willing to give you.”
• “I’m going to take the children and you will never see them again.”
• “You’re crazy for pushing this divorce case. All that you are doing is taking money away from the children.”
• “If you don’t settle on a reasonable basis, I will have to take the children out of school.”
• “I’m going to tell the children that you are responsible for this mess.”
• “At the rate you and your lawyer are going, I’ll have to declare bankruptcy and nobody is going to win.”
• “If you don't settle on my terms, I’m going to drag your girlfriend (or boyfriend) into this case.”
• “Your lawyer is too busy to handle this case.”
• “You can’t trust lawyers. They always work with the lawyer on the other side and run up unnecessary time to make more money.”

Hopefully, the opposing party in your case isn’t the type who makes such outrageous statements. On the other hand, you could be on the receiving end of such remarks or of variations on these themes. Fortunately, there is rarely is any basis for such comments, and they are usually made to provoke a desired response.

We want to assure our clients and potential clients that with regard to these types of comments, our firm’s position is the following:

1. Our attorneys and office staff are experienced in Family Court cases, and you can be assured that we are not going to be intimidated by any such statements made by the opposing party in your case.
2. If you have any concerns about any statements the opposing party makes, please discuss them with us.
3. We work for you. Our job is to work on your behalf and to take reasonable and necessary steps to help you obtain your desired results in your case.
4. Finally, we take pride in our adherence to the strictest of ethical standards. You can always count on our integrity and good faith in representing you.

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One of the issues that family law attorneys discuss and debate is whether or not to charge potential clients for initial consultations.  This is a subject that my partner and I have wrestled with on and off over the years and that we continue to struggle with today.  Attorney Christopher Pearsall from Rhode Island recently discussed this issue at his blog, as follows:

If you’ve ever needed a Rhode Island attorney, you have probably searched for one who offers a free consultation. This week I reluctantly discontinued offering a free consultation as a Rhode Island lawyer for practical reasons.

Everyone wants a bargain and it’s great to get things for free, yet time is what we as attorneys get paid for . . . time and expertise in the law. Unfortunately, costs keep running even during free consultations.

I can’t begin to tell you how many hours I have spent and how much free advice I have given only to have to pay for the expenses of heat, light and rent for that very same time. In the end, it all comes down to numbers. Bills need to be paid and food needs to be put on the table.

Ultimately any good business person who has an ounce of common sense would take the steps necessary to eliminate counterproductive aspects in their business and increase productivity. If this means eliminating my ability to offer a free consultation as a Rhode Island lawyer in order to maximize my law practice, then it is certainly in the best interests of all my clients to do so.

Have I had a few people who have turned away the consultation because of the nominal fee I charge? Absolutely! Some people won’t do anything if it’s not free. Yet here is the fantastic thing I learned about my choice to discontinue the free consultation. I eliminate my wasted time. I weed out the tire kickers who simply want my legal advice for free . . . And best of all. . . I maximize my time in such a way that I can keep my rates as low as possible for my clients.

Ultimately my elimination of the free consulation as part of my Rhode Island law practice has benefited all those who choose to use my services.

Do I regret that people do not see the true value they get from a consultation of $50? Not at all. Anyone who has done their homework will know the value of an experienced attorney. I could charge $200 an hour for my services and still might be undervaluing what I do for my clients. Yet if you were to get 30 mins. of quality legal advice from me for only $50 so that I could cover my bare costs, who has reaped the biggest reward . . . . you or me?

In the end, I still think it’s me. You’ve helped me cover my costs. You’ve trusted me with advice on an important issue in your life.  You’ve allowed me to help you and that’s precisely why I’m here. Do you have a legal issue or question that is weighing on your mind?  Do you need some legal guidance but you don’t want to drain your bank account?  I’m here to help.

As you can see, this is a very complex issue, with good points on both sides.  I am very interested in hearing your thoughts on this subject, whether you are an attorney or a layperson, and I invite my readers to submit thei comments to this article.  Thanks in advance.

Source:  "The Disappearance of the Free Consultation!" by Christopher Pearsall, published at his Providence Rhode Island Legal Solutions blog.

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If you are interested in what it's like to be a divorce attorney, you should read the article published yesterday in the Asbury Park Press, which profiled Ron Rosen, who practices in West Long Branch, New Jersey.  Of course, every attorney is different, but the following quotes from Mr. Rosen are insightful and apply to most quality divorce lawyers:

• You have to wear a lot of different hats. You play legal adviser, financial adviser, psychologist, grandfather, parent, hand-holder and sometimes reality-checker.
• You're looking at some of the finest people in the county at their worst.
  
• Divorce is a very emotional thing to go through. It might be more psychologically taxing than death. When a parent or a spouse or a loved one dies, there is a finality. When you go through a divorce, that person is still around....
•  I give information to people who have no idea what to do, so he or she can get out of a bad marriage. There's a tremendous amount of myths....
• You have to have a good ability to speak to people. You have to take a lot of weight and responsibility on your shoulders, but you can't personalize everything.
  
• You have to be a little thick-skinned. People can turn on you at a moment's notice. If something goes wrong, and they can't yell at the judge or the spouse, it's your fault.
• It's a varied practice. You have to know math, psychology, history, pensions. You have to be able to read a psychological evaluation as easily as a forensic accountant's report.
• You have to be well-rounded, somewhat forceful and you have to be able to listen to people, so you can find out what the problem is.

Source:  "At Your Job: Divorce Lawyer" by Dennis P. Carmody, published in the Asbury Park Press.

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Andrew Flusche of LegalAndrew.com tagged me to participate in the "lawyers appreciate" countdown.  Here goes my contribution...

Lawyers appreciate and need the following three things to be successful:

1. Excellent Clients:  The best clients are the ones who cooperate with their attorney, have realistic expectations, and pay their bills in a timely manner.  If you've ever had a client without these characteristics, you will appreciate your "good" clients that much more.  If a client does not have at least two of these characteristics, ask yourself why they are your client.
   
2. Excellent Staff:  It is imperative to have an experienced and responsive staff who can complete tasks, respond to client concerns, and work well with others (both their attorney and their co-workers).  Your staff can make or break your practice, and when you find a good worker you shoud do what you can to hang onto him/her.
   
3. Excellent Ideas:  Of course, attorneys must have legal knowledge in the areas that they practice.  However, what makes an attorney exceptional is the ability to think creatively and innovatively.  Not only can fresh thinking result in new ways to solve clients' problems, but it also looks for new ways to incorporate technology to improve your practice.
   

I strive to maintain these three elements in my practice.  I am very selective about which cases I take, and if I probably pass on as many cases as I take these days.  I am very fortunate to have an excellent staff who has been together for several years now.  One thing that differentiates me from other attorneys is the way that I think through cases from all sides, and I strive to "out-think" my opposing counsel in every case.

Thanks to Andrew for tagging me to participate.  The "lawyers appreciate" countdown asks that its participants tag three more people to participate, so I'm tagging Michael Sherman of the Alabama Family Law Blog, Jeffrey Lalloway of the California Divorce and Family Law, and my good buddy, Dave Swanner of the South Carolina Trial Law Blog.

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Probably the question that family law attorneys are most frequently asked is "how much will it cost for my divorce case?"  Perhaps the focus should be on the attorney's experience, number of active cases, and/or his strategic thinking / creative planning, but it almost always starts with the cost because most people tend to think with their wallets/pocketbooks.

My friend, Michael Sherman, addressed that issue on his blog this past Spring.  He gave the following helpful and insightful answer to that most frequently asked question as follows:

What will my divorce cost?

This is a question you should ask your lawyer at the initial consultation. If you are working for a lawyer that charges fixed fees like our firm does (also known as flat fees), then they can tell you exactly what the fee will be. But, even if you are working with a lawyer that charges by the hour they should be able to give you the amount of their hourly rate, the amount of the retainer and a reasonable estimate of the total fees that will be incurred. If they can't or won't then go somewhere else.

In fact, I would not hire a lawyer that is not willing to represent you in a divorce on a fixed fee. I have a strong opinion about fixed fees vs. hourly billing. I am currently putting an article together that will go into this in much more detail, but I will speak very briefly to the issue here.

Why would you hire someone to handle your divorce case that can't quote you a specific, total fee? Many lawyers will say they can't quote a flat fee on a divorce because there are too many variables to accurately estimate a fair fee. That is nonsense. There are many variables involved in building a house, but when you contract to build one, there is a set price established on the front end and agreed to by both parties. If there is unforeseen work needed, a change order is prepared. Simple, effective, fair.

The bottom line is that hourly billing (coupled with the high pressure put on lawyers to bill more hours) places an incentive on a lawyer to engage in protracted litigation. That is not in the client's best interests (particularly in the emotional turmoil of a divorce). Additionally, the client must feel like they are writing a blank check to the lawyer (because they are). Not to mention the fact that with hourly billing you are charged (usually in 6-15 minute increments depending on the lawyer) for every phone call, every e-mail, every meeting, etc. Is that any way to encourage open communication (which is absolutely necessary for effective representation)? Of course not.

I guess you get the point. My advice is not to hire a lawyer that is not willing to work on a fixed fee basis. I realize that is a controversial statement. It is one with which many of my fellow lawyers would vigorously disagree. But, I have been working on a fixed fee basis for over 10 years. I have been doing it exclusivley for about 3 years. My clients love it because it takes away an unknown factor, it allows open, regular communication, and they never recieve a $150 bill for a 30 minute phone call. I love it because I can focus less on tracking my time and more on resolving my clients problems (not to mention there are no such things as accounts receivable in my office).

Source:  "What Will My Divorce Cost?" published by Michael Sherman at his Alabama Family Law Blog.

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Michael Sherman of the Alabama Family Law Blog recently addressed the following question:

Are the fees I pay my divorce lawyer deductible?

Only those fees paid to your divorce lawyer that are directly attributable to tax advice and/or related to the production of taxable income (such as alimony) can be deducted.

You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income.  If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.

If you have specific quesitons related to this issue in your case, talk to your lawyer or tax advisor.

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Family Court cases can be expensive, ranging from mildly to very expensive depending on the case.  Sometimes, cases can become unnecessarily expensive due to the conduct of one of the parties and/or attorneys involved in the case.

I often explain to my clients that things can be done the easy way or the hard way.  Generally, it is best for everyone that cases be resolved the "easy" way, but of course that takes the efforts of everyone involved to work toward that end. 

Because of the issues involved in Family Court cases, emotions can run high and people do not always think with clear, pure thoughts at all times.  An experienced attorney can often serve as the "voice of reason", which might result in the attorney encouraging his client to give certain issues additional thought to help avoid hasty (and later regretted) decisions.

Unfortunately, the other party's attorney can also help escalate the animosity in a case and make it much nastier than it might otherwise be.  Take for instance the Los Angeles lawyer who aggravated a simple divorce case into a costly legal feud by sending the other side sarcastic letters and briefs.  A state appeallate court found that the letters and briefs sent by that attorney were “outrageous” and “served only to prolong these proceedings and waste the parties' money” in rejecting his request for $250,000 in fees.

It certainly seems that the actions taken by the attorney in that case were uncalled for and indefensible.  Such conduct reflects poorly on all attorneys, and I am glad that the appellate court referred the attorney in that case to the State Bar of California for possible discipline.  There are times that attorneys must act aggressively to protect their clients' interests, but they must take care to ensure that they act reasonably while doing so.

You can read more about the actions of the California attorney in the following article:  "Court Says Attorney Turned Peaceful Divorce Into Costly Feud" published in the San Diego Union-Tribune.

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James W. Hart, publisher of the excellent Florida Family & Divorce Lawyer blog wrote the following insightful article on the subect of "Professionalism" for the The Briefs, a publication of the Orange County Bar Association:

Writing on the topic of Professionalism is not an easy thing to do.  As lawyers, we should strive to achieve professionalism in our everyday lives as we work with other attorneys, our clients, and our family and friends.  For this month’s issue of The Briefs, I have decided to approach this topic from a perspective that I know best, family law.  From our initial contact with a client, to mediation, to dealings with opposing counsel, family law attorneys are in a unique position to enhance and further the principles of professionalism.

Clients that come in to see me are usually consumed with anger, fear, or hatred, are ravaged by guilt or are debilitated by depression.  The initial meeting with a potential client can set the stage for the entire professional relationship.  During the initial consultation, I try to accomplish three separate goals.  First, I explain to the client my philosophy on how to handle their case, and learn about their goals and what they expect from their attorney.  Next, if the client decides to retain me, then I enter into a written fee agreement that further explains my responsibilities and the responsibilities of my client during representation.  Lastly, I explain to my clients the office procedures – specifically how they will be able to reach me on the phone.

I believe in zealously representing my clients within the bounds of the law and the ethical rules.  Most clients will appreciate having an attorney that will serve as an honorable and zealous advocate, and at the same time will represent them in a competent and ethical manner.  Clients who think otherwise are clients you should avoid.  I avoid clients who think that they can purchase results, or who believe that if they pay me enough money I will turn into a cut-throat attorney whose only goal is to exert revenge on their spouse, no matter what the cost.  It’s not in my nature to act that way, it’s certainly not professional, and I let clients know from the outset that I will not act that way as their attorney.  I suggest that all attorneys explain to their clients at the outset of the relationship exactly what they can expect during the representation.

Once you have been hired, either after or during the initial interview, it is important to enter into a written fee agreement, or to send the client a letter of engagement.  This is especially important with domestic cases because a lot of times clients are so distraught during the initial meeting that they barely remember the details of the engagement.

Finally, make sure to explain your office procedures to your clients during the initial consultation.  Will they reach you each time they call or will they talk to someone else?  Knowing this information is especially important during the first several weeks of representation, when clients will often call for the most trivial of matters.  Having a written list of procedures for phone calls will not only help clarify the relationship between you and your client, but it will help to provide you more time to ethically represent all of your clients.

As the domestic case moves along, at some point the parties will engage in mediation.  At mediation, an attorney has a great opportunity to demonstrate the principles of professionalism.  You have an opportunity to forget about litigation, and be a true problem solver.  The attorney’s purpose at mediation should be to act as a facilitator – working to defuse potentially explosive situations to reach a fair settlement.  I always try to encourage my clients to believe and trust in the settlement process and to put away their egos for a couple of hours so that we can reach a settlement that is fair to both parties.  A good mediation is one where both parties leave feeling that they gave up too much.  That means that the ultimate settlement was a win-win to both parties.

My goal in family law cases is to finish the case quickly, while reaching the best possible result for my client, with the least amount of suffering to the family unit.  Where there are children involved, it is important to consider their best interests when structuring the settlement.  I deal with lots of other attorneys that are highly respected, ethical, and above all, professional.  My law practice and my life are better because of ethical and professional attorneys.  They make it easy to pick up the phone and discuss an issue in a case, talk about settlement options, or simply talk about how their lives and practices are going.  When I work with those attorneys, I reach better results for my clients, with less heartache, sooner.

However, I also deal with other attorneys that can make life extremely difficult.  They fight over the smallest of details, they agree to one thing and then do something completely different, or, worst of all, they misrepresent (i.e. lie) to the court about the facts or procedural history of a case.  Besides not acting with professionalism or integrity, lawyers like these will consistently cause more problems (financial and emotional) for their client’s and mine, drag cases out that could otherwise be settled, and cause disruption and animosity between the parties involved.

In an emotionally charged family law case, it can be increasingly easy to succumb to the tactics of these less-than-ethical attorneys.  However, as advocates, we must remember the oath we took when we became members of the bar.  One tenet of the Creed of Professionalism is that “I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.”  Remember that tenet when deciding how to respond to an attorney who is making life difficult for you or your client.  Lawyers who take the “high road”, despite the tactics of difficult opposing counsel, demonstrate the true essence of professionalism.

When responding to attorneys like these, always remember to maintain your professionalism and follow the golden rule.  When confronted with a situation in which your opposing counsel has engaged in unprofessional conduct, resist the urge to respond immediately.  I can’t tell you how many times I have received a letter or been served with a motion from an opposing attorney that makes my blood boil.  Strangely enough, I doubt that I am the only attorney who has ever felt this way.  Wait a day or two to send a letter back to that attorney.  When you do respond, draft a letter that you would be proud to submit to the court – chances are it may be included as an exhibit in a future filing.

Professionalism is the golden rule of the legal industry.  In other words, do unto others as we would have them do unto us.  Yes, there are rules, guidelines, and any number of ethical opinions that we as lawyers must follow in our day to day practices.  But wouldn’t it be easier to just think about how we would feel if we were on the receiving end of the letter that we are about to send, the phone call we make, or the motion that we are about to file?

As lawyers, we cannot change what has happened to our client’s in the past, but we can positively affect what will happen to our client’s during the legal process and in the future.  Our client’s want their lawyers to exhibit effort and concern.  By following the golden rule, by treating others with respect, and by diligently following up with our clients, we will automatically exhibit the effort and concern that our clients so desperately require.

Source:  "Professionalism - A Family Law Perspective" by James W. Hart, published at the Florida Family & Divorce Lawyer blog.

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The American Bar Association’s Section of Family Law has adopted Civility Standards. The Standards address the responsibility of the family lawyer to be civil to clients, opposing counsel, and the Court.

I. To Client

1. Treat the client with respect.
2. Try to keep the client on an even emotional keel and avoid characterizing the actions of the other party, opposing lawyers, and judicial officials in emotional terms.
3. Be aware of counseling resources and be prepared to refer the client to counseling where appropriate.
4. Where a client has an exaggerated or unrealistic view of his or her options in any given situation, explain matters as carefully as possible in order to assist the client to realistically assess the situation.
5. Respond promptly to client requests for advice or information.
6. Consider the availability and appropriateness of forms of alternate dispute resolution.
7. Where a client wishes to pursue a claim or motion for purely hostile or vindictive purposes, explain to the client the reasons why the client should not do so.
8. Do not assist a client in pursuing a claim for primary custody or visitation where the purpose of the claim is to obtain bargaining leverage in order to achieve a purely economic objective.
9. Avoid any communication to client about the judge, the other lawyer, or the other party that will contribute to disrespect for the legal process.
10. Encourage clients to comply with all court orders.

II. To Opposing Counsel

1. Be honest in all communications with opposing counsel. Do not intentionally misrepresent any factual or legal argument.
2. Be respectful and courteous in all oral and written communications with the opposing side.
3. Do not engage in conduct, oral or written, that promotes animosity and rancor between the parties or their counsel.
4. Use a demeanor and conduct during a deposition or other out-of-court meeting that would be no less appropriate than it would be in the courtroom.
5. Do not engage in harassing or obstructive behavior.
6. Honor reasonable requests for routine extensions of time, unless a client’s position will be adversely and materially affected.
7. Confer in good faith with opposing counsel on scheduling matters.
8. Do not utilize the manner of service of pleadings or discovery requests to disadvantage the opposing counsel.

III. To the Court

1. Act with complete honesty; show respect for the court by proper demeanor; and act and speak civilly to the judge, court staff and adversaries.
2. Avoid frivolous litigation and non-essential pleading in litigation.
3. Explore settlement possibilities at the earliest reasonable date, and seek agreement on procedural and discovery matters.
4. Avoid delays not dictated by a competent and justified presentation of a client’s claims or defenses.
5. Strive to protect the dignity and independence of the judiciary, particularly from unjust criticism and attack.

Thanks to David C. Sarnacki for his post at the Domestic Diversions blog on this subject.

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MyShingle.com posted this week about a provocative You Tube ad by a Florida divorce attorney Steve Miller. The ad almost defies description and is worth a look. You can view it by clicking here.

After insulting paralegals, overpriced downtown lawyers, and court clerks, Miller invites clients who want to escape "the hellhole they call a marriage" to visit his website, pay up and "get on your way to getting rid of that vermin you call a spouse."

The post's author, Carolyn Elefant, insightfully states that "by attempting to appeal to people who call their spouse 'vermin' or refer to their marriage as a 'hell hole,' Miller virtually guarantees that he's going to attract clients who are unreasonable and uncompromising. These clients may think of their spouses as vermin when they call to retain Miller, but I'm guessing that by the end of the case, they'll be referring to Miller as vermin as well. Sometimes you get the clients you deserve."

After seeing Mr. Miller's ad, I have a little more insight into why many people hate attorneys. I have seen late night infomercials and ads by used car dealers that seemed to have more class and dignity. I hope and pray that the message that my firm and I send to the public isn't perceived his.

Source: "You Get the Clients You Market For" by Carolyn Elefant, published at MyShingle.com.

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More great advice from the Alabama Family Law Blog:

Yes, ultimately it is your decision to work with the lawyer you choose. But, you should understand that switching lawyers in the middle of the case can (and likely will) costs you more money and may lead to delays in getting the case to trial as the new lawyer has to get up to speed.

You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice). You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared. It does happen.

Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.

Source: "Can I Change Lawyers?" by Michael Sherman, posted at the Alabama Family Law Blog.

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The following article was published in last week's "Dear Abby" column:

COUPLES LEARN DIVORCE ISN'T FINAL UNTIL DECREE IS FILED

DEAR ABBY: After reading the letter from "Married? In Arkansas," who found to her dismay that her husband was still married to his first wife, I thought I should write. It happens more than people would like to think.

I have worked for more than 10 years on a divorce court staff, and I would advise all divorced people -- male and female -- to request a certified copy of their divorce decree. This official document is available from the courthouse in which they were divorced.

I know of at least two instances where the lawyers failed to submit the decree of divorce to the judge. It was only discovered more than a decade later. In the first instance, as part of the property settlement, the husband was going to buy out his ex-wife's interest in the former marital home. The provision was triggered by the youngest child turning 18. The mortgage company needed a copy of the divorce decree to refinance the mortgage. Surprise -- both the husband and wife had remarried! They had to go through another divorce proceeding. (It was probably more amicable than the first.) But they were humiliated, not to mention furious at the attorney. Then they had to "remarry" their current spouses.

The second incident was very sad. The parties' son was killed in an accident. In the process of filing a wrongful death action, a copy of their divorce decree was needed. That's when they learned their case had been dismissed for "failure to prosecute." Again, the attorney had not filed the judgment, even though the parties had appeared in court and testified.

Please, Abby, tell your readers if they have gotten a divorce and do not have a certified copy of their divorce decree, to get one now. Most attorneys are hard-working and honest. But it never hurts to have insurance, and this is some of the cheapest insurance they'll ever get. -- CONCERNED COURT REPORTER

DEAR CONCERNED: I'm sure your letter will raise some eyebrows, but you have offered some good advice, and I hope my readers will pay attention to it.

Source: Thanks to the California Estate Planning Practice Blog for its post on this article.

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I am very proud to announce that my law partner, Paul MacPhail, is featured in this month's Prime Years magazine:

It's true that most people wear multiple hats in a lifetime. Being a child, student, spouse, and parent are among the most common, but how would you like to be a lawyer- dedicated to helping people navigate life's challenges by day and a philandering Count by night? Paul MacPhail, attorney with the Stevens and MacPhail law firm in Spartanburg has done just that.

MacPhail, 45, can wear a unique set of hats because he's had the courage to follow his dreams from one career into another while keeping the best of both worlds at hand. But he hasn't done it alone. "It's all been a team effort," MacPhail is quick to say.

Paul MacPhail is the son of John and Jeanne MacPhail, of Spartanburg. Paul was reared in a home filled with his mother's music and a behind the scenes view of the law in action from the judge's robes his father wore and the stories he'd bring home from court.

It was vocal studies that called to Paul in his first career. He met his wife, Valerie, while they were both earning masters degrees in vocal performance at Florida State University in Talahassee and later earned his doctoral degree in musical arts from the University of Illinois.

Paul taught college and directed both the opera and choral programs at Mercyhurst College in Pennsylvania then moved to Spartanburg in 1992 to serve as opera director at Converse College. He also managed the opera workshops at Brevard Music Center for four years. Valerie taught voice at Converse. Music was an integral part of their lives.

But when Valerie was pregnant with the couple's third child, Paul began discussing the idea of changing careers. "I just wasn't feeling fulfilled and couldn't see myself in the same place for the rest of my working years," he said. "I felt that whatever career I went into next that I wanted to touch a more diverse group of people."

He looked at the careers of family and close friends for direction. His sisters are involved in education, social work and music. Two are married to ministers. It seemed the more he looked, the more he was drawn to helping others and changing lives. "It was scary to consider, especially at that time, but I grew up in a family that believes you should love what you do or you shouldn't be doing it," Valerie said.

In 1995, Paul served as the foreman of a jury on a local murder trial. "I came home after the second day and told Valerie that this was what I wanted to do," he said. He didn't tell his parents what he'd planned until he and Valerie had everything decided.

"I'll never forget. We were playing pool and I was about to take a shot when he said, 'Dad, I'm going to law school.' I missed that shot," said John MacPhail. "We were very concerned when they told us what they had planned because we knew first hand what a strain law school can be on a young family," said Jeanne MacPhail. But the decisions were made and the senior MacPhails pitched in to help with the care of their grandchildren.

Paul resigned from Converse in 1996 to attend law school at the University of South Carolina. The first year, he lived in an apartment in Columbia, coming home whenever his studies would permit. Valerie juggled numerous part time positions and met the family needs at home.

"I took every job I found or was offered and would not have made it through had it not been for great friends and family," she said. After that first year, Paul was able to live at home and commute while she was able to focus on a full time position opened at Converse which Valerie held for the next two years. They made it work.

"It was as if we had a narrow beam between where we were and where we were going. If you look to the sides and get bogged down in the distractions and challenges, you fall. We got there by looking forward," Paul explained. "Our Christian faith kept us all going," said John MacPhail.

During law school, Paul earned the distinction of being named to the Law Review, an honor reserved for the most successful law students. For many who earn the credential, it serves as the opening of a career door into large, prestigious law firms. But during his studies, Paul's new career path became defined in ways he hadn't expected.

His journey toward courtrooms was inspired by criminal law, but it was the same type of law that sent him on a different course. During a summer's work in the Public Defender's office, Paul worked through the details of a very emotional double murder case. "I came home every night so upset and I knew I couldn't do that to my family. We read about murders and watch CSI but it's very different to talk to the people involved and fully absorb the senselessness of it all then to carry that burden home," he said.

In 1999, Paul took a job with the McQueen law firm in Spartanburg but he found he was called to family law, not just probate and estate planning. Ben Stevens was looking for someone to join his firm and MacPhail has found it a perfect fit. He says that the work is typical in that every day is different. "I've never spent a day as a lawyer being bored."

"You really have to have a heart for family law and Paul has that. He's carving out quite a good reputation within the legal community and I'm regularly hearing other attorneys comment on his excellent skills in the courtroom," said Ben Stevens.

Paul says he enjoys advocating for a client who is unable to articulate his or her needs, whether it's by lack of education or being overcome by the circumstances they've found themselves in.

He gives them the words, a voice. His voice is so strong in fact, that his law partner jokes that if things aren't going well in court, he should start singing his arguments. "His voice is like a siren's song - it's undeniable," said Stevens, who hears his partner singing regularly during church services.

But giving voice has significance for MacPhail in other ways, too. In January, he played the role of a very unsavory Count in the Converse College, Petrie School of Music production of "The Marriage of Figaro." He's continued to utilize his vocal talents in numerous local productions by Converse, The Spartanburg Repertory Company, and through First Presbyterian Church where he and his family are members.

Though the law and opera aren't generally thought of together, MacPhail sees them as a great complement to one another. "Working on a performance keeps me sharp. I use my memory, react to and anticipate the actions of others, and am aware of the effects of my movement and gestures on those around me and the overall effect they create. Those activities are very stimulating and they show up in the courtroom," MacPhail explained.

Practicing law is not as it appears on television where large elite firms are the standard, Paul explained. He says that he has found a great joy by working in a smaller firm than what people normally envision when thinking of a law career. Now, though his work days run about an 8 a.m. to 6 p.m. schedule, he can work to help his clients but still arrange time to spend a few months in evening rehearsals for a local production or sing for a church service in the middle of the day, giving voice to all.

Source: "Giving Voice on Stage and in the Courtroom" by Kim Atchley, Published in the May 2006 edition of Prime Years.

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Question: My wife and I are contemplating divorce. I have gotten all kinds of advice from family and friends about dealing with my wife and divorce lawyer, but all the advice has been different. I have found tips on the Internet about how to deal with some of the problems that face me, but not about how to deal with a divorce lawyer. Are there any secrets?

Answer: Dealing with divorce and divorce lawyers is not much different than taking a trip without first plotting out the route. If you go to a matrimonial lawyer without specific objectives or goals in mind, and think he or she can fix it for you, you'll be disappointed. Given a specific set of facts, lawyers are trained to apply the law and advise clients about ways to attain specific goals - or at least some of them.

Here are some basic guidelines:

1. Gather as much of your financial and other information as possible before you go to see your lawyer. This includes tax returns and schedules, financial statements, budget documents, and the like from at least the last five years.

2. Make sure your fee arrangement is in writing, that you understand it before you sign, and that everyone understands how you will pay your bill. Generally, lawyers are not allowed to take a percentage of what is recovered for you in a divorce case, so expect to pay by the hour.

3. Since you won't always need to talk to your lawyer when you have questions, meet and get to know the paralegal or secretary so you can give and get information billed at lower rates.

4. Write out your questions, then make an appointment with the lawyer and take notes about what you're told.

5. If there are billing questions, talk to the billing clerk or the secretary who handles this aspect of the business. The lawyer should be the last resort.

6. Photocopies made at the lawyer's office may cost you 25 or more cents per page, sometimes plus the time of the person making the copies. So, for voluminous copies, consider making your own at copy shops to save money.

7. If you don't understand something, ask. And if you have a problem with the way your lawyer is handling your case, also ask. Don't allow the issue to fester.

8. Your lawyer should keep you reasonably informed about the status of your case by sending you copies of what goes out of the office. Then, you'll be less likely to make emergency calls. Remember: spur-of-the-moment calls just to find out what's going on can get expensive.

9. Don't second-guess your lawyer based on the advice of friends and family. But, if you feel strongly about a point, you are perfectly within your rights to seek a second opinion. Let your lawyer know that you feel this way.

10. Remember that your lawyer works for you. After you have been fully informed and have reviewed your options, you and your lawyer should decide upon a course of action suitable to your situation.

11. Don't be surprised if your case takes time to get resolved. Although everyone is in a hurry to complete his/her case, you will have no control over scheduling issues that can keep your case in limbo for a long time.

12. If your lawyer promises or guarantees you a result, get another lawyer.

Source: "Flying Solo" Article by Jan L. Warner and Jan Collins published in the Fort Wayne News-Sentinal. Thanks to the California Divorce and Family Law blog and The Art of Divorce blog for finding this article.

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Here is the last installment in my series of posts on William A. Eddy's tips in helping hire the right attorney. Today, Mr. Eddy explains his thoughts on the two different types of attorneys. He believes that when looking for an attorney, it is helpful to consider common differences in their approaches - especially to cases involving difficult personalities.

1. NEGATIVE ADVOCATE ATTORNEYS

Characteristics:

As described throughout this booklet, anyone can be a Negative Advocate if they assist a Blamer in promoting their cognitive distortions and negative, often abusive behavior.

• Some attorneys are habitual Negative Advocates. They try to take most of their cases to court. They represent whatever their client says as true, with little or no skepticism or investigation. Essentially, they are representing their client's cognitive distortions or "negative thoughts." This is comparable to representing a drunk while they are still under the influence - and accepting what they say as true.

• Negative Advocates focus their attention on the judge. They treat each issue as a win-lose contest, with the goal of winning the most at court. Time is spent primarily preparing for court, waiting at court and presenting ("arguing") the case. They generally do not have close client relationships. They often impress their clients, especially at the beginning of the case with their tough talk and seeming support for their clients' allegations and excuses.

• The methods of Negative Advocates are adversarial from the start. They are focused on advocating for their client's "position," rather than understanding and solving their client's "problems." They focus on gathering negative evidence about the other party because the negative usually weighs more in the adversarial process. Subpoenas are routinely issued, depositions routinely taken, and other forms of "discovery" pursued, often with no real goal to gather information. Intimidation tactics are common. They treat their client as "all good" and the other party as "all bad." They often consider themselves as all good (or smart) and the other attorney as all bad (or stupid).

• Negative Advocates seem to minimize contact or negotiations with the opposing attorney (or unrepresented party), as they prefer the threat of going to court. In court, their goal appears to be to split the parties into "good spouse" and "bad spouse" in the eyes of the judge. They will raise minor issues and make them sound highly negative. They will minimize major issues and make them sound insignificant or untrue. There is an appealing strength to their presentations and aggressive manners. They can be charming--or hostile and deceitful --to win a point. However, their tone, lack of empathy, and all-or-nothing manner may eventually be turned against their clients.

Client Relationship:

• For Negative Advocates, the client appears to be a minor part of the process.

• Client information may be obtained and used without question.

• Clients may be minimally counseled about the law, how to help themselves, or how to reflect on their own behavior.

• Clients may primarily meet with support staff.

• Negative Advocates do not seem to encourage mediation or negotiation, although they may give lip service to these approaches.

Cost:

• Negative Advocates tend to cost the most because court takes so much time -- preparing documents, numerous hearings, and waiting around. The more issues taken to court, the higher the cost and the more money made.

Prevalence:

• Negative Advocate attorneys appear to be about 10-20% of all attorneys. However, they appear in a much larger number of high conflict court cases. They seem to be the attorneys who often represent Blamers without question.

• Negative Advocates can be some of the meanest people you will ever meet. However, sometimes they are the nicest people -- perhaps too nice to their clients in accepting and advocating for their cognitive distortions.

2. PROBLEM SOLVER ATTORNEYS

The focus of attention for Problem Solvers appears to be that of solving problems rather than rigidly advocating for a position. Hearings may be set at court, but Problem Solver attorneys generally make a good attempt to settle issues first based on the legal standards.

Methods:

• Their goal is to gather information that will help solve the problems the parties are facing. They often counsel their clients to be reasonable and to tone down their negative views of their spouses. They encourage them to consider alternatives for possible settlement. There may be subpoenas, depositions, and other discovery. But often there is no discovery until the Problem Solver determines it is needed.

• Secondly, the attorney makes an effort to negotiate with the other attorney (or party without an attorney) and attempts to settle issues along the standard laws and guidelines with some give and take. They do not try to intimidate, but rather persuade and find areas of compromise.

• If negotiation efforts fail, then discovery may be pursued and the process becomes adversarial. Yet Problem Solvers can remain generally friendly and do not try to unnecessarily escalate problems. They tend to be sincere and interested in solving their client's legal problems.

Client Relationship:

• Problem Solvers may educate their clients about legal standards and generally communicate more with their clients than Negative Advocates. They may support the use of mediation or negotiation outside of court.

• Sometimes they may act as consulting attorneys for those who represent themselves. They expect their clients to act reasonably and give them feedback when they do not.

Cost:

• In most cases, Problem Solvers cost less than Negative Advocates because they settle many issues without a hearing. However, they can cost as much as Negative Advocates if negotiations fail and the adversarial process is pursued.

Collaborative Law:

• Many Problem Solvers have adopted the philosophy of the Collaborative Law movement. I like this approach and attorneys using it fit into this category in my opinion.

• However, since Collaborative Lawyers will not take a case to court by signed agreement, you need to evaluate whether to close the court option when a Borderline or Narcissist is involved. The chances are good that you will end up in court on some issue, at least once.

Counseling Knowledge:

• Some attorneys have taken a mental health class or training program. They focus on solving their client's larger problems, which often include some need for mental health information or treatment as well as legal assistance.

• By addressing the mental health issues, they help their clients resolve their legal issues. This can range from recognizing a substance abuse problem to helping them cope with a spouse with a personality disorder.

• These attorneys generally educate their clients on how to help themselves and how to handle the legal problems and personal problems related to their case. They encourage mediation or negotiation. Court may still be used as needed--especially in cases needing control of abusive behavior.

Prevalence:

• Problem Solvers are the vast majority of attorneys. However, they do not get the attention that Negative Advocates seem to want and get.

WHICH TYPE IS BEST FOR YOU?

While Negative Advocates seem to be very appealing, they often escalate their cases unnecessarily and costs can be very high.

Problem Solvers seem to be more concerned about their clients and resolving their problems. They can be highly assertive when necessary, but reasonable at the same time.

Ideally, find someone who feels comfortable and can work with you through all the ups and downs of your case.

Source: Excerpt from SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist by William A. Eddy, LCSW, Esquire as published on BPD Central, a list of resources for people who care about someone with borderline personality disorder (BPD).

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Here is the penultimate post in my series on William A. Eddy's tips in helping hire the right attorney. Today, I give you Mr. Eddy's thoughts on the issue of what you should expect with regard to fees, along with my thoughts and comments on several of these items, as noted:

WHAT IS A REASONABLE FEE?

Hourly Rates:

Eddy: Rates vary greatly around the country, but it is not unusual today for Family Law attorney's fees to range from $100 to $400 per hour, depending on your geographic area, the years of experience of the attorney, and the number of hearings involved in the case (which is often determined by how driven the Blamer (i.e., opposing party) is to bring large and small issues to court).

Stevens: In South Carolina, attorneys' hourly rates generally fall in the range of $150 to $300 per hour. However, I have concluded that charging by the hour may not be in the client's interest, and I have begun to handle Family Court cases on a "fixed fee" basis. I quote a set fee based on the type of case and other relevant factors. Of course, if the posture of the case changes (i.e. an uncontested suddenly becomes contested or a case about visitation or child support turns into a contested custody case, an additional fee will be required and negotiated accordingly). I will post more on "fixed fee" billing in future posts.

Retainer Amounts:

Eddy: Have access to at least $5,000 to $10,000 for a retainer to start a very assertive approach to handling a case with a Blamer.

Keep in mind that an entire case involves several hearings, experts, many delays, and responses to ever-escalating abusive conduct and/or false allegations. This can range in cost from $5,000 to $50,000, and sometimes higher. Also, keep in mind the future potential costs if the Blamer is back in court several times over the years.

If you get a good court order, you may have to bring the Blamer back to court to enforce it. Additionally, if you get a good court order, the Blamer may repeatedly bring you back to court in an effort to get a different decision.

If you get a bad court order (such as finding you guilty of actions you never did or the Blamer innocent of all real misbehavior), you may need to bring the case back to court again (although there are many restrictions about this and it is not always possible).

Stevens: I generally agree with Mr. Eddy on these issues, but since every case is different, it is difficult to generalize on the exact amount needed to begin and/or pursue such a case without knowing more about the facts of that given case. For instance, Client A could case less the fees and costs incurred by Client B. Client A is only concerned about the outcome of his/her case, and rightfully so.

Your Assistance and Cooperation:

Eddy: Ask your attorney if there are tasks you can do to save money. They may suggest research and gathering of information and documents. However, this is limited, as the attorney is responsible for your case once you hire him or her, and has requirements about what tasks they must do.

Stevens: I regularly have my clients assist with the collection of documents and basic information with regard to their case. Many times, clients will already have the desired information on hand, and I can thus get it from them quicker and less expensively. For instance, if I want to obtain the client's income tax returns for the past three years, the client may (should) have a copy at home, or if not, he may be able to get a copy from his accountant at no charge. On the other hand, if I had to request a copy from the IRS (or even the client's CPA), there would almost certainly be costs incurred which would then have to be passed on to the client.

Prepare Yourself Financially:

Eddy: Be financially prepared. You do not want to be in conflict with your attorney about money in the middle of a difficult case. However, you should be able to discuss money openly with your attorney.

Many attorneys do not charge you to discuss questions about their bills, and some will delete a charge if you think it was excessive. Find an attorney you can work with, not against.

Stevens: Clients should always be sure that they can afford to see their case through. Nothing is worse than having a client exhaust their financial resources mid-way through a case, and then be left to fend for themselves in the midst of a contested matter. One of the many benefits of working on a "fixed fee" basis is that this minimizes the changes of this happening. Clients know up front what their costs will be, and they can make an intelligent, informed decision with that information in mind. If they cannot afford a particular attorney, they can then have the opportunity to seek a less expensive one before beginning the matter instead of being forced to switch mid-stream, when they are under stress with deadlines looming.

Cost Is Only One Factor:

Eddy: The cost of the attorney should not be the deciding factor in your selection. Just because an attorney is very expensive does not mean that he or she will pay the most attention to the needs of your case -- or that he or she is the best for the issues you are facing.

On the other hand, just because an attorney may charge less than average for your area does not mean that he or she is less qualified for your case. Realistically, you want the person who has the best combination of experience, understanding of the specific issues in your case, and the ability to communicate well with you.

Stevens: I definitely agree with Mr. Eddy on this issue. The most important factor in choosing an attorney should be your confidence in the attorney and his abilities. Certainly, cost is a factor that should be considered, but it is better to view the cost from the perspective that you are making an investment -- an investment in a person to handle this most important case for you. No person would want to have the least expensive attorney they could find, just as they would not want the least expensive surgeon operating on them. Address the attorney's competence, experience, accessibility, and personality instead of focusing exclusively on the cost.

Source: Excerpt from SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist by William A. Eddy, LCSW, Esquire as published on BPD Central, a list of resources for people who care about someone with borderline personality disorder (BPD).

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Here is part three of my series of posts on William A. Eddy's tips in helping hire the right attorney. Today, what should you ask when interviewing your potential attorney?

Mr. Eddy recommends that you keep in mind that you are forming a close relationship with someone who may really help you or may turn out to be of little assistance. There is a wide range of attorneys and you will want to find one who fits with you.

He also suggests that you not take an adversarial approach to interviewing and developing a relationship with an attorney. It will only hurt you in the long run, because the attorney will consider you a difficult client and be less motivated to go the extra mile in handling your case.

Questions to ask a potential attorney:

• How do you usually communicate with your clients?

  Look for answers that include usual response time on returning phone calls of at least 24-48 hours, depending on the urgency of the issue.

  You don't want an attorney who will not speak to you, but will have all of your concerns handled by an assistant, associate, or secretary. (It's okay that they have staff, but don't let this be a substitute for your contact with the attorney, when you want it. On the other hand, it may save you money to speak with an assistant or associate on issues you don't need to address with the attorney. You just want accessibility; you don't always have to use it.)

  Ask if is it easy to schedule an appointment with the attorney if you want to discuss issues in the case. When you speak with the attorney, notice if he or she is distracted by other matters (phone calls, papers to review, etc.).

  Does this person seem attentive? Are they a good listener, or do they interrupt and take over the direction of the conversation before you can explain your concerns? Do they jump to conclusions about your case? Are they honest with you about periods when they will be unavailable, about the weaknesses your case, and about their experience?

  If you are not comfortable with the attorney's answers, interview another attorney. However, keep in mind that attorneys can be tied up with all-consuming court cases for a few days at a time. They may return your calls, but a day or two later. They may have a staff member contact you.

  But if the communication feels good when you do talk with the attorney, then the relationship may work well. Remember, when your case is going to court you will want your attorney to be just as absorbed in it and less available to others at that time.

• Do you prefer to negotiate or go to court? About how many cases have you settled this year? About how many cases have you taken to court for hearings or trials?

  Generally, you will want someone who will attempt negotiations at first. Negotiation efforts may be able to keep a case from dramatically escalating into a huge prolonged, unnecessary court battle.

  On the other hand, if negotiations fail, you want someone who is comfortable in court and knows the in's and out's of court procedures in your county. If they routinely take all cases to court without sincere efforts at negotiation, then they may be less likely to care about the outcome of your case.

  You want someone who is committed to solving their clients' problems using whatever methods are appropriate, rather than someone who applies the same approach to all cases as a matter of unconcerned routine, whether its negotiation or court.

• Have you ever handled a case like mine before?

  Ideally, they will say yes. Some attorneys may have had lots of experience with your type of case, and others will be relatively new. Experience matters a lot in the law, as there are so many details, rules, and tools that can be used. It is often helpful if the attorney is familiar with your judge and how your judge handles cases like your.

  If you like an attorney but they do not have much experience on issues like yours, see if they have a colleague or mentor with whom they can consult. Sometimes a new attorney will spend a lot more time on your case just for the learning experience. This can benefit you if they have a more experienced attorney available for consultation who can point them in the right direction.

  On the other hand, an experienced attorney does not have to reinvent the wheel. A more experienced attorney will know what tools they can use in handling your case and may have some legal research and documents they can use from similar cases recently handled.

• What steps would you take in handling a case such as mine?

  There is no right answer to this question. Mostly, you want to see if their steps make sense to you. See if they explain things to your satisfaction.

  This will give you an idea of whether they are familiar with the common problems of a case like yours or if they seem to be guessing. You will also get an idea of whether you feel comfortable with their approach.

  The response to questions you ask about their proposed steps will also help you decide how you feel about the potential attorney.

• Do you believe that most abuse allegations are true or false?

  You want an attorney who does not have presumptions that abuse concerns are always true or always false. You want a skeptic who will do some research, ask lots of questions, and seek corroborating evidence. You want someone who will remain open-minded and will stick with you even if new issues and information arises.

  You also want someone who will be honest with you if they think that you are mistaken or misperceiving events.

  Beware of attorneys who readily accept any abuse allegations made by you or against you without question. They will often turn against you in the middle of the case when someone else makes a damaging statement against you -- however false.

  If they are easily emotionally persuaded, they might suddenly change their mind on one strong statement rather than weighing all the evidence. They also may have a reputation for jumping to conclusions.

• What is your reputation in this legal community?

  This question will give you a good idea of how the attorney sees himself or herself and what is important to the attorney.

  If the attorney brags about being ruthless, you may want to consider looking elsewhere. Judges tend to have the most respect for those attorneys who are oriented toward problem-solving and helping clients resolve their disputes. They do not necessarily like or respect the attorneys who like to keep fighting, escalating fees and controversy.

  On the other hand, you want to avoid an attorney who sees him or herself as great at settling all of their cases. They may try to get you to settle a case that should be fought for and decided by a judge.

  Find an attorney who is known for both settlement and court experience, so that they will apply the approach that is most appropriate to your case.

• Ask if you can have 2-3 names of current or former clients to talk to?

  This is a delicate question and you may not want to ask it if you already feel comfortable with an attorney. Some attorneys will feel offended by this request, while others will want to protect their clients from unnecessary intrusion.

  However, if you are unsure which attorney to hire after interviewing two or three, talking to other clients may be the way to make your decision one way or the other. The attorney's response to this question may tell you enough without even calling anybody.

Source: Excerpt from SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist by William A. Eddy, LCSW, Esquire as published on BPD Central, a list of resources for people who care about someone with borderline personality disorder (BPD).

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Here is the second installment in my series of posts on William A. Eddy's tips in helping hire the right attorney. Today, where can you look to help locate an attorney for your case?

Mr. Eddy gives the following list of people who may be able to help you find useful information:

• Mental Health Professionals

  I suggest that you contact a mental health professional who frequently works on legal cases who will be able to refer you to a good attorney. For example, there may be a psychologist, clinical social worker, or family counselor in your county who regularly testifies at court or does assessments for the court.

  You could call your local mental health organizations or referral lists for such a person, or call a local psychiatric hospital or counseling clinic. Explain your case and ask for referrals to three attorneys you could interview. You are more likely to find an attorney you can work with this way than to make cold calls through the phone booklet.

• Family and Friends

  These may be the next best source, as someone may have had a good experience with an attorney who can give you a referral to an attorney who regularly deals with the issues in your case. Ask around, then interview the attorney yourself.

• Referral Services

  If necessary, call the lawyer referral service for your area. Most County Bar Associations have one. They usually give out three names and encourage you to call and interview the attorneys yourself.

• Court Observations

  If you have time, go to the court where your case will be heard and observe attorneys interacting with each other and arguing their cases. If you like the way one handles their case, go up to him or her afterward and ask for a business card.

  However, be careful not to assume that the most aggressive in court will be the most beneficial for your case. Some attorneys appear very aggressive, but do not have a good reputation and may be presenting information that is misleading or wrong.

  Just as you want to adopt an assertive approach, seek an attorney who appears knowledgeable and respected by the court for being assertive rather than dramatically aggressive. You will have a judge, not a jury, so dramatics often fall flat in family court. I remember one judge saying to a dramatically aggressive attorney: "Now that you're finished venting, I'm going to look at the facts of the case."

  Clerks at court are not supposed to give legal advice. But they are familiar with the attorneys who regularly come to court. Sometimes they will give you hints about who is good and who to avoid. You might ask a clerk, "If I had to choose between so-and-so and whats-her-name, who would you suggest?"

Source: Excerpt from SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist by William A. Eddy, LCSW, Esquire as published on BPD Central, a list of resources for people who care about someone with borderline personality disorder (BPD).

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I came across an excellent article by William A. Eddy, an attorney and licensed clinical social worker, which contained many helpful tips in helping hire the right attorney. Over the next several days, I plan to make several posts containing Mr. Eddy's ideas and suggestions. Here is part one:

Mr. Eddy suggests that you interview at least three attorneys before choosing the one you want to retain as your advocate. He believes that the ideal attorney has the following characteristics:

• Has experience in your court: It helps to have someone who knows what the various judges are like and what to expect in their courtrooms. There is some variation between counties, so it is best to get a local attorney who knows the local rules and is respected by your judge.

• Is easy to communicate with: You want an attorney who is open to your input and concerns and will work closely with you in handling the surprises and legal maneuvering common to cases involving a Persuasive Blamer.

• Understands difficult personalities in family court cases: While you may not find an attorney with specific knowledge of Borderlines and Narcissists, some are better than others at handling the common manipulations and false statements of "difficult personalities" in family court cases.

  There are presently very few attorneys who recognize and understand the patterns of Persuasive Blamers. Therefore, you should focus on finding an attorney who meets the first and second criteria.

Source: Excerpt from SPLITTING: Protecting Yourself While Divorcing a Borderline or Narcissist by William A. Eddy, LCSW, Esquire as published on BPD Central, a list of resources for people who care about someone with borderline personality disorder (BPD).

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Very rarely do people consult a Family Court attorney under good circumstances. Your spouse has cheated on you. Your ex-spouse won't let you see your children. Things are not the way they should be. When experiencing such a crisis, it can be difficult for people to choose the right attorney to assist them. Complicating things even more is that Family Court cases are often a person's first experience with attorneys and the legal process.

The more you can educate yourself on where to turn, who to trust, and what to do, the better off you will be. There are many ways to look for an attorney. You can open the yellow pages, research on the internet, or ask your friends. However, many people do not feel comfortable asking their friends and family to refer them to an attorney due to the types of issues that are often involved in Family Court cases. For instance, you may not want your best friend to know that your spouse has cheated on you.

If you are researching attorneys via the yellow pages, internet, blogs, or other media, there are certain things that you should know to help you choose who to use. This article is written to assist people in that situation. Why should you trust your children, your finances, or other such important issues to the person that has the biggest or flashiest ad? I believe that you should have as much information as possible to aid you in deciding which attorney you let represent you. Consider the following seven factors when choosing your attorney:

1. What experience does the attorney have?

How many years has the lawyer been in practice? What percentage of the lawyer's cases are in Family Court matters? How long has the attorney been practicing in your city or area? The greater the lawyer has been practicing, the greater likelihood he has seen cases like yours and will know how to handle your case. Does the attorney devote the majority of his practice (ideally 2/3 or more) to family court cases? The longer the attorney has been practicing in your area, the better he will know the likes / dislikes / tendencies of the other persons involved in your case (such as judges, opposing counsel, Guardian ad Litem), and the better he can then prepare your case accordingly.

What is the attorney's record of success? How has the attorney handled cases in the past that are similar to yours? What results has he achieved recently? Obviously every case is different, but discussing similar types of cases he has handled in the past can give you some insight into how the attorney analyzes and handles his cases. Is the attorney willing to provide you with the names of references who are willing to discuss their experiences with you?

2. What type of firm does the lawyer have?

Is he part of a big law firm, small firm, or is he a solo practitioner? Just because the lawyer works in a big firm doesn't necessarily mean it's better for you. Likewise, just because an attorney is a solo practitioner doesn't mean he's not capable of successfully handling your case.

There are many advantages to using a solo practitioner or a small firm: you get individual, personalized attention; an attorney who knows everything about your case; an attorney who returns your calls promptly; and someone who doesn't take on more cases than he can manage.

With a larger firm, you may have multiple attorneys handling different aspects of your case; different attorneys appearing in Court for conferences; your phone calls may not be returned as quickly as you'd like. However, large firms sometimes have more resources than a solo practitioner or small firm.

Ask your prospective lawyer whether he delegates his work to his associates or paralegals, or does he do it all himself? Does he return your calls, or do the paralegals or associates call you instead? Does the paralegal prepare your important papers (such as pleadings and Orders), or does the lawyer do it?

3. Where is the lawyer's office?

Is the attorney's office conveniently located, with easy access and parking? If you live in one city and your case is pending in another, is it better to have the attorney where you are or where the case is? Does the attorney have more than one office, and is that a good thing?

If travelling to an attorney's office is a concern, ask whether the lawyer can travel to your home or office. Many attorneys will accommodate a client, if they are physically unable to travel. However, there are significant advantages in meeting with the attorney in his office: (a) to see how the lawyer operates, (b) to meet his staff, and (c) to enable the attorney to see how the client adjusts to being in an unfamiliar setting. This last part is vitally important, as it gives the attorney an early opportunity to evaluates you as a potential witness at trial.

4.Do the attorney and his staff act in a professional manner?

Does he meet with clients in a prompt and timely manner, or does he routinely make them wait long periods of time at each appointment? Can he see you on short notice if an emergency arises? If a conflict arises, will his staff call to notify you in advance and attempt to reschedule your appointment promptly? Is his staff discrete and do they actively protect your privacy?

5. How does the attorney communicate with his clients?

Does the attorney have a policy of sending clients copies of letter and other documents sent from his office? How often should you expect to hear from the attorney regarding your case? Are clients able to email the attorney and/or his staff rather than calling on the phone? Is communication by email welcomed or encouraged? How promptly are emails answered? Can letters and other important information be sent to the client by email?

Does the attorney publish current information on family law topics? Is this done via cutting-edge technologies, such as blogs or websites? Does the attorney even maintain a current website? Does the attorney provide only basic information with bland material, or does he provide a reader with important information they need to know to educate them before they ever call him or walk into his office.

6.When your case goes to Court, will the attorney be there with you or will he send one of his junior associates?

This is a very important question. You are hiring an attorney, not a lawfirm. Will the lawyer you meet during your first office visit be the person sitting beside you in Court? Do you want to risk being "handed off" to another attorney or an associate shortly before Court? On the other hand, do you want to be sure that you get one attorney and he handles all aspects of your case from start to finish.

7.Does the attorney educate his clients?

Does the attorney strive to provide as much information as possible to his client? Are clients treated with dignity and respect, or are they taken for granted? How involved will you be in your case? Does the attorney recognize that the client is his boss? Are important decisions made after consultation and discussion between the attorney and client, or does the attorney simply dictate how things will be handled?

Knowing this information will make you a better informed consumer. Hiring a lawyer is an important part of learning about your legal rights. Ask lots of questions and trust your instincts about any lawyer you speak to. Good luck.

Thanks to Gerry Oginski's article at the NY Medical Malpractice blog for his post on this general topic.

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Family Court litigants often think that they want to be represented by the biggest S.O.B. they can find. In fact, I have even been asked by potential clients if I can be "nasty." I overheard a discussion earlier this week, in which Charleston, SC attorney Alex Cash wisely addressed this issue by stating

Going for the jugular is a misnomer. One does not need the biggest S.O.B. that they can get in family law. They need a smart lawyer, who can see where the case is headed and move it toward settling it on a reasonable basis for a reasonable fee. Fighting, while unfortunately necessary in some cases where one or both of the parties are in a mode of unreasonableness, is to be avoided where-ever possible.

Thanks for the great advice, Alex.

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Friends, colleagues, and clients often ask me whether my firm has a "busy season." As long as I have been practicing, the first few months of the year are, without a doubt, our busiest time of the year for divorce cases. We also see a slight increase toward the end of the summer with regard to custody cases, but it doesn't compare to the post-holiday rush.

Apparently, we are not alone. In an article for The Motley Fool UK, Jane Mack cites a survey by Divorce-Online, which found that already-troubled relationships are more likely to falter during the stressful Christmas period, a view reflected by the increase in the number of divorce petitions filed before the end of March. Nearly sixty percent of those responding to the survey said that Christmas had an effect on their decision to divorce.

Source: Seasonal Jollity For Divorce Lawyers?

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I recently discovered a great new blog, the Ottawa Divorce Blog, published by Jeffrey Behrendt. One of the first posts on this blog was on the subject of legal fees in divorce cases. In response to a comment from one of his readers, Mr. Behrendt suggested that the following points be considered with regard to attorney's fees in family law cases:

• Family law gets more and more complex all the time. Nowadays a lawyer has to specialize in this area to even begin to attain a degree of competency. This drives divorce legal fees higher.

• Social norms change. For instance, a generation ago, men generally didn't get custody. Now, in many cases, they demand to be equal parents. The additional conflicts this causes drive divorce legal fees higher.

• The law can be very grey and the financial stakes huge. For instance, the value of a pension may vary by several hundred thousand dollars, depending on what age a person retires. This drives legal fees higher.

• Justice can be uneven. The results you'll get before one judge may differ greatly than what you'd get before another judge. This makes it difficult to settle cases, which drives legal fees higher.

• There's no end to creativity of couples as to how nasty and complicated they want to make each other's lives. The conflict drives legal fees higher.

• Although a lawyer may make things look easy it actually is a lot of work even if you just want to do well in negotiations. To do well in court requires even more lengthy and detailed preparation. This drives legal fees higher.

• Flat fees work well when you can predict the amount of work involved. In a divorce, this is generally not possible. It's always possible to raise more issues, if you or your spouse is thus inclined. It's always possible for one or both spouses to be unreasonable (surprise - that's one reason why you left them). As well, until the case has developed, it may not be possible to know what all the issues are in more than the most general sense.

• The suggestion that one should not to be afraid to haggle is somewhat troubling. It shows that price is a major factor in your decision to retain a lawyer, which it shouldn't be in something as important as your divorce. There are good ways to keep your legal fees down, but haggling is not one of them.

• One of the reasons why people get bad legal representation is that they try *too hard* to save legal fees. They try to get free consultations, shop around for the lowest priced lawyer, complain to their lawyer about every bill and try to get it reduced, and so forth. Granted, it's good to save money. But saving a few dollars in legal fees may cost you a lot in your final divorce settlement.

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My law partner, Paul MacPhail, and I were discussing billing issues recently. Paul told me recently of an attorney he knows that adds a five percent surcharge all clients' bills for TAYC -- "Thinking About Your Case." It is an interesting approach to attempt to recapture that time spent thinking about a client's case that is otherwise "lost."

Clients do not realize the amount of time (which generally goes unbilled) that that their attorney spends thinking about their case -- especially with complex or long cases. I know that I think about my complicated cases at least once per day, seven days a week. I try to leave work at the office, but I still cannot help but think about my work, as I understand how important these cases are to my clients. My best "thinking" time is when I am taking a shower. It is generally the only quiet, uninterrupted time I have each day, since I have a very busy law practice, a wife, and two young children.

Paul noted that the time spent thinking about clients' cases does come at an cost -- to us, as it is time that we are not thinking of our family, our hobbies, or ourselves. So, do we plan to start adding a TAYC charge for our clients? I don't, as I see it as a "cost of doing business" which is factored into our overall fee structure. Paul and I have spent a lot of time thinking about the way we charge fees for our services, and we may make some changes in that area in the new year. I will save that topic for future posts.

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The Greatest American Lawyer blog had a post a few months ago about what makes the perfect client. The (anonymous) author's perfect client exhibits the following characteristics:

• Loyal: Loyal clients consider you to be their attorney for all their legal needs. They understand that if you do not handle a particular legal issue, you will refer them to a qualified attorney who can. Loyal clients do not simply fly off the handle when the first unexpected event arises. Loyal clients know that your interest is to protect them, and they work with their attorney to immediately focus on problem solving when difficult issues arise.
• Hard Working: The best clients have no fear of jumping into the problem at hand and doing some heavy lifting. For instance, they review the documents that are produced by the opposing party and identify the documents that they believe to be important. They prepare well for their depositions, put the time and effort into their discovery responses, and track down needed information. In short, they are part of the team and help their attorney achieve great results.
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Tags: Attorney-Client Relationship
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Choosing the "right" attorney for a Family Court matter can be one of the most important decisions you will make. Different people have different criteria guiding them through the selection process. Some people want to hire a "big name" attorney, with the goals being to intimidate his/her spouse, to impress his/her friends, to spend a predetermined amount of money, or a combination of these. Others want want to find an attorney that is inexpensive, older/younger, male/female, techo-savvy, big firm/small firm, local/out-of-town, etc. The truth is that there is no such thing as the right attorney for everyone, which makes the evaluation process that much more important.

The attorney-client relationship in Family Court matters is somewhat unique as compared with other types of cases. For instance, in a criminal case, you may not care that your attorney is a gruff S.O.B., and it may not affect the outcome of your case because your contact with that attorney may be infrequent. However, Family Court cases demand frequent, open, and honest communication with your lawyer. The issues involved in these cases by their very nature demand that you have a comfort level with your attorney. For instance, while you may never feel completely at ease discussing issues such as substance abuse, sexual issues, parenting decisions, physical abuse, etc. with a stranger, it can be much less stressful if you choose an attorney with whom you are comfortable.

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