Divorce: Choosing an Attorney

IMG_8717By Justin O’Dell

Starting last month, we switched our discussion of Dick and Jane to the topic of divorce. This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspective of both Dick and of Jane.

For this month, it is important to devote time and energy in determining how to hire a domestic lawyer. There are a lot of factors to consider in hiring a domestic relations lawyer and each factor is important.  More than anything, it is critical that the client have a high degree of comfort, confidence and trust in their lawyer.  If the attorney-client relationship is lacking in any of these three areas, the process will be extremely difficult. Along those lines, here are ten initial thoughts (in no specific order of priority) in choosing a family law attorney:

  1. Am I comfortable with this person? The answer to this question is unique to each individual. Some clients prefer attorneys of the same gender or race, others prefer the opposite. Some clients want a lawyer to be a tender heart and soothing voice, others prefer someone who can bluntly tell them to “get a grip.” Regardless of preference, the personality must mesh.
  2. Can I trust this person? The analysis here is simple. If you cannot be completely honest with your family law lawyer, you have the wrong lawyer. It is essential that your lawyer know everything to best represent you. If you cannot be that open, it is not a good fit.
  3. Does my lawyer practice where my case will be heard? Family law is different in this regard than most other types of cases. To quote the great Tom Browning, the discretion of a family law judge is “broader than the plan of salvation.” Different judges bring different attitudes and perspectives to issues like custody, alimony, misconduct, attorneys’ fees and so on. Your attorney needs to have a history and understanding of these factors in order to best handle the case.
  4. Does my lawyer need my business? This is a critical factor, often overlooked. The reality is that in a family law case, the longer the case goes and the more fighting that occurs, the more the attorney earns. There are law firms and lawyers who have high overhead to cover. There are law firms and lawyers who are struggling to pay the bills. In these instances, there is a latent danger that the lawyer could be picking a fight where one does not need to exist or advising against a settlement offer than might make financial sense (i.e. the lawyer rejects a total alimony award of $48,000.00 in settlement and goes to trial at a cost of $25,000.00 seeking to get a total alimony award of $60,000.00. Although the result obtained was “more” the net effect to the client was a monetary loss).
  5. Is my lawyer my cheerleader or my advisor? This is a fine line that exists in family law cases. Often times, lawyers can become emotionally invested in their clients due to sympathies to a particular situation. In these instances, both the lawyer and client become focused on “winning” rather than a positive overall outcome for the family unit. A lawyer must be able to tell the client, without hesitation, when the client is being irrational, off-base, unreasonable, etc… The lawyer is not to be a cheerleader merely feeding the client advice that the client wants to hear. The lawyer is to be an advisor and advocate.
  6. Will my lawyer go to Court? Most family law cases settle and most family law cases should settle. Parents and spouses should be able to take ownership of their own situation and, with advice and counsel, be able to hammer out an agreement for themselves. However, there are instances where compromise cannot be had and the facts get tough. Family law dos attract lawyer who simply are not interested in going to court or do not like the adversarial process. If the lawyer has a reputation of not wanting to go to Court or if an opposing counsel can sense that a lawyer is unwilling to try the case, the settlement negotiations become very one-sided.
  7. Does my lawyer explain the financial aspects of the case? Divorce litigation costs money and expenses can add up fast. As a case heats up, many lawyers start a routine process of following the same strategy for every client. Discovery depositions, demands for guardian ad litem, custody evaluations, etc… There is not a “one size fits all” divorce. Some clients cannot afford the full court press. Some clients can afford everything, but have no inclination to pay for it. A divorce can be fairly presented without exhausting every possible litigation strategy. It is important that the lawyer review the costs and benefits of each strategy with the client BEFORE committing to a course of action.
  8. Does my lawyer get along with the other lawyer? This is often hard for the client to gauge at first. Over time, the client should be able to review the correspondence between the attorneys and see them interact in person. It is not essential that the lawyers be best buddies, but they should be able to treat each other with civility, respect and professionalism. Although it is initially fun to read a caustic letter from your lawyer to the other side, in the end it just ratchets up emotion and ultimately expense.
  9. Does my lawyer return my messages? The number one complaint to the State Bar regarding lawyers is a lack of consistent communication. Your case is important to you and it should be important to the lawyer. If your lawyer cannot at least send an e-mail or leave a voice message in response to an inquiry, get a new one.
  10.  Does my lawyer have an investment in the community?   In choosing a lawyer, consider whether that lawyer is committed to their immediate environment. Are they involved in the civic, charitable and social causes on the community? If not, the lawyer is probably more interested in pulling money out of a community than truly being a part of it. Lawyers are uniquely suited and tailored to serve at Church, in civic clubs and on charitable boards. They are asked to do so constantly. If the lawyer is not involved somehow, somewhere, it is a deliberate choice.

Next month, we will look at the process of a divorce consultation and the first meeting with a lawyer. What should Dick and Jane expect to get out of that first meeting?