You are contemplating divorce (or another family law issue), which means you are already experiencing conflict with someone close to you. You may feel betrayed and vulnerable – like you are being bullied and don’t know who to trust. Your first instinct may be to hire the strongest, most aggressive “shark” of a lawyer… but think before you jump head-first into those shark-infested waters. Your lawyer will be your team-mate (and your voice) throughout this process, so it is important to understand who will be the most effective advocate for you.
There are many articles about why “aggressive” lawyers are not always effective lawyers. Mark Baer, a California Family Law Attorney and Mediator, describes three reasons why aggressive attorneys are less effective at obtaining the desired results for their clients:
- Aggressive Lawyers Are On The ‘Short-List’ – Judges do not care for ‘aggressive’ lawyers. Ask any judge, and they will tell you that they are worn out from baby-sitting lawyers who cannot get along with one another, who quibble over the most mundane aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on. Lawyers who place themselves on a judge’s ‘short list’ of intolerable lawyers are doing a great disservice to their clients. Regrettably, many of the lawyers who place themselves on the ‘short-list’ are either oblivious to (or ‘willfully dense’ to) how their attitude negatively impacts upon the court’s scheduling of matters, the court’s receptiveness to the lawyer’s concerns (‘Cry Wolf Syndrome’) or even, at times, the court’s rulings.
- Aggressive Lawyers Get As Good As They Give– During my career, I have let other lawyers out of default or extended firm deadlines as a professional courtesy. I can hear the aggressive lawyers’ comment now – ‘You gave up your client’s advantage in exchange for courtesy!’ Not so. I can unequivocally state that in those cases, the outcome was positive for the clients and, in some cases, made more positive by acting professionally. Of course, there will always be those parties, or their lawyers, who precipitate a hard-line approach to the case. However, perhaps a better practice is to set a positive tone from the beginning before you come out swinging the day the client walks into your door. If you set a negative, aggressive tone from the outset, then do not be shocked when opposing counsel does not return your phone calls, does not grant you any extensions you request, does not work with you to complete discovery, etc. In all, what goes around does, indeed, come around. Hopefully, in all your years of practice, you will never miss a deadline or make a mistake. However, if that day should come, it would be best to have a reputation as being respected and a ‘lawyer’s lawyer’ than to be the attorney to whom everyone else is looking to dish out a little ‘payback.’
- Good Lawyers Don’t Just ‘Try’ Cases; Good Lawyers Try to ‘Resolve’ Cases– Before I hop down off of my soapbox, there is one last point to be made. In the end, ‘scorched earth’ policies and aggressive behaviors do not benefit our clients (except in the movies). Family law attorneys can probably attest to this fact the most. Aggressive behaviors run up legal fees, destroy any real chance of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing threatening ‘paper tiger’ letters or emails is, in a word, useless. Whether you disagree with opposing counsel, or you just don’t like their politics, venting your frustrations, lobbing insults or threats, or engaging similar aggressive behaviors does not change the facts or the law of your case. Agree to disagree, spar like professionals, and kept your reputation as a ‘zealous’ and a ‘professional’ lawyer intact. In the end, you will earn the admiration of both the bench and the bar. Moreover, your clients will applaud you for your success and not your rancor. In the end, as we say here in the South, ‘you catch more flies with honey than with vinegar.’”
In my own experience, I have often witnessed adverse results for clients that originate with an overly aggressive approach (driven by an overly-aggressive lawyer or client). These fall into three major categories:
Missed Settlement Opportunities. Often (particularly early in a case) there are opportunities to settle either some of all of the case. For example, you may not agree with your spouse on how the bank accounts should be divided (or you may need more information on this issue), but you may agree on a custody schedule for your son. Any good lawyer will look into opportunities to settle. Overly aggressive attorneys often take outlandish positions (or take a “just say no”) approach trying to drive the terms of a negotiated settlement in their client’s direction. Sometimes this works. Often, it does not. If this overly aggressive approach fails – you may end up litigating an issue (like custody) that you could have resolved in settlement. The more issues that remain disputed at the time of trial, the longer and more expensive the trial will be – and the more you risk an adverse or unpredictable outcome.
Huge Attorneys’ Fees. It stands to reason that the more issues you’re fighting about, the more costly the battle will be. Perhaps a trial on financial matters would take 3 days, but a trial on financial matters and custody may take 6 days. You may not understand in advance that this will DOUBLE the cost of your trial (because it will double the time it takes to prepare and try the case). If you are walking away from a settlement opportunity, make sure you understand what it will cost you. Often overly-aggressive lawyers take an approach that leads to large trials on a multitude of issues – this may serve the lawyer (who is charging by the hour) but it may not result in a favorable outcome for you.
Failed Cost/Benefit Analysis. I have seen lawyers incur $10,000 of fees for a $500 issue. Even if they end up “winning” on that issue, you (the client) have lost, because you spent $10,000 to get $500. Overly-aggressive lawyers can be so focused on winning every issue that they lose sight of whether it makes sense to battle in the first place. A good attorney will advise you to choose your battles wisely – not every issue is worth going to the mats for.
When you meet with lawyers, here are some things to look out for:
- Beware of Any Lawyer who is willing to be a “Mouthpiece” – you may be angry and emotional… you may want to “crush” your spouse… you may want to expose her shady business dealings or cause him to get fired from his job… while this may feel satisfying in the short term, it can HUGELY damage your own interests long-term (if your spouse loses her job, you may owe her child support or alimony). A good lawyer is NOT a mouthpiece, simply hired to regurgitate your thoughts and opinions…. A good lawyer will bring a measured, rational voice to the dialog and help you think strategically about making choices that will benefit you long-term. Sometimes that means being the bearer of bad news or taking a contrary position to you. When your lawyer pushes pack – Listen. If your lawyer does everything you say, she is likely not doing her job!
- Beware of the “Over-Promise” – Many overly-aggressive lawyers start by building unrealistic expectations in their clients. They promise a “slam-dunk” in Court on various issues (sometimes as early as the first meeting – when it is virtually impossible to have enough information to make that sort of promise). Any good lawyer should help you understand the risks and potential pitfalls along with the potential “win”… If what your potential lawyer is saying sounds too good to be true – it probably is!
- Awards or Accolades Can be Misleading – Many attorneys these days tout numerous “awards” but these can be the result of an effective marketing team (more than a top-quality practice). Here is an article by the Better Business Bureau cautioning consumers about so-called “vanity awards” for lawyers.
Here are some tips about hiring a lawyer:
- The kinds of referrals you are likely to get depend on the questions you ask. Don’t just ask for “the shark”… think about asking for someone who is a creative problem solver, someone smart, someone who has expertise in your particular subject-area (maybe there is a complex trust involved in your case).
- Hire someone who you are compatible with. Family law cases are VERY personal… it’s important to find someone who listens to you, understands your priorities and is able to effectively voice your perspective.
- Understand what your goals are and work with your Attorney to ensure those goals are reasonable and attainable. If your goal is to walk away with everything – any good lawyer should tell you that’s unlikely. Having your lawyer help you develop realistic goals will allow you to make the smartest and most strategic decisions.
- Have an Open Dialog about Cost and Budget both up front and along the way. Cases are expensive and any responsible attorney will be willing to discuss this issue with you to develop a realistic plan and strategy.
- Get a second opinion – any good lawyer will be open to you seeking a second opinion. I am always willing to get on the phone with another lawyer and talk through differing strategies or work together to develop the best plan. If you’re skeptical about whether you’re getting the best advice, talk to someone else. I even refer my clients to other lawyers I respect (or offer to bring another expert in) if we are facing a particularly challenging issue.
Practical questions to ask when you “interview” a lawyer:
- What makes your approach unique compared with other lawyers?
- How do they communicate – office phone, e-mail, cell phone, text?
- Are there extra charges for contacting your lawyer outside of regular business hours?
- What cost-saving measures can they recommend to manage fees in your case?
- Are there opportunities for mediation or arbitration to explore settlement?
- What happens if you have an emergency and can’t reach your lawyer?
- Payment methods accepted (check, credit card?)
- Billing frequency and method (monthly? By e-mail?) and due-date for payment?
- Budget for the case and what will drive the expense?
Finally, remember this: the court views your side of the case as YOU … so the things your lawyer says and does will be attributable to YOU. If your lawyer advises you to do something that the court disapproves of, YOU are the one who will pay the price, not your lawyer… so if you feel the attorney you are meeting with is untrustworthy or does not share your philosophy or approach to your case, keep looking!