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

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?

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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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One of the many factors that the Court considers in child custody cases is the school and educational resources available at each parent's residence.  In other words, if the parents live in different school districts, how do they compare to each other? 

If both parents live in the same city or county, the information is usually easy to access and present to the Court. However, when the parents live in different states, it is somewhat more difficult.  In cases where the parents do not live in the same location, this issue can be even more important.

Fortunately, SchoolMatters.com is an online resource that enables parents (and their attorneys) to compare schools based upon performance of students on standardized tests, teacher-pupil ratios, and other critical factors.  This resource is a service of Standard & Poor's, and it is free.

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I have previously written about how the Family Court considers a child's preference in custody cases.  On his new Minnesota Divorce and Family Law blog, Gerald Williams addressed this subject a few weeks ago, as follows:

If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge's decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.

It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the "preferred parent." But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.

Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent's custody. The family court might be informed that the child has such a preference, but also that the "preferred parent" provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child's contact with the other parent.

That gives the family court impetus to award custody to the "preferred parent" without resorting to the child's preference as a basis for the custody decision. Family court authorities and children's therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child's best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child's preference.

Source:  "Child Custody: Where Does The Kid WANT To Live?" by Gerald O. Williams, posted at his Minnesota Divorce and Family Law blog.

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What happens when one parent wants to change custody after there is already an existing child custody order?  I have received several inquiries on this topic recently, which is very common this time of year, since school resumes in a few weeks.

In these cases, the parent wanting the change has basically two options, depending on the circumstances of each particular case:

• If both parents agree that custody should be changed from parent A to parent B, the best solution is usually to pursue a child custody agreement.  This process generally involves having an attorney draft a written agreement, which both parents then review.  If it meets with everyone's approval, the parents then sign it, and a hearing is scheduled to ask the Court to approve the agreement.  An Order is issued, which incorporates the agreement into it and most importantly, makes it enforcible if either parent attempts to violate its terms.
• If the parents do not agree, then the non-custodial parent will need to file an action asking the Family Court to change custody of the child.  Typically, the parent seeking custody must prove that there has been a significant or substantial change of circumstances since the parties were last before the Court on this issue.  Next, the Court must determine if the change of custody is in the best interest of the child.  As I have discussed previously on this blog, the Court takes many factors into consideration as part of its analysis, including the child's preference.

Of course, as I noted above, child custody cases are very fact specific, and each case is different.  If you are facing this situation, the best thing you can do for yourself and your child is to seek the advice of an experienced, qualified family law attorney who can help you analyze your case and determine what steps, if any, you should take.

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