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Morgan E. Foster

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Clients often ask at the outset of litigation: about how much is this going to cost?   It is a completely reasonable question, but one that is nearly impossible to effectively answer.

The cost of your case will depend largely on three factors: (a) how much you come in knowing (or not knowing), (b) the complexity of the facts (how many assets are involved and the nature of these assets, whether custody is disputed, whether alimony is involved, etc.), and (c) the reasonableness of the opposing party.  If you are knowledgeable about all of the assets in play and you and your spouse are able to resolve things quickly, by agreement, these are the least costly cases.

(10)  You will learn how much you DON’T know (don’t be an Ostrich!).

Whether a stay-at-home Dad or a jet-setting executive, we all work hard, have stress and are busy.  One way we deal with this is to “divide and conquer” at home.  Maybe in your household – your husband manages the bills and finances, while you organizes the children’s schedule… Maybe you convert all paper to electronic files and manage the family records, while your wife handles groceries and cooking… we do this because it is a survival mechanism… because “no one can do it all,” right?… well, if you are contemplating divorce, you will start to need to “do it all!”

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:

  1. 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.
  2. 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.’
  3. 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!

If you’re contemplating divorce, you’ve probably thought about your personal support network – who you might tell first… who will be your shoulder to cry on… but it is important to take stock of professional resources as well.  Below is a description of some of the key resources available and team-members you may want to assemble.  Before you disclose any sensitive information to any professional, make sure you understand their duty of confidentiality to you, whether they can or will share this information with third parties (including your spouse) and whether they can be compelled to share the information in testimony in Court.  Your attorney can help advise you on this point.

  • Legal Team. Your lawyer will head your legal team but the team may also include paralegals, support staff, expert witnesses, private investigators and/or litigation support vendors.  For more information on hiring a lawyer, see our earlier blog post “I want a shark – how to hire a lawyer.”  Your team may need to include more than one lawyer if you have trust/estate issues, employment law issues or require an expert in a certain area (like dividing military pensions or preparing Qualified Domestic Relations Orders to divide retirement).  At some point you may need an estate planning attorney to revise your will, change medical directives and powers of attorney, update beneficiary designations, etc.
  • Financial Advisor. A financial advisor will be an important part of your divorce team, but beware of using your marital financial advisor.  Your marital financial advisor may have an equal duty to both you and your spouse (which means they may share any information you give them with your spouse) so make sure you are clear on this before you start confiding in your current/marital financial advisor.  For this reason, it may be wise to consider working with a new financial advisor through your divorce.  Your new financial advisor can help you understand your spending history and prospective budget, understand your marital net worth, identify outstanding liabilities, and help with long-term financial planning (for college and/or retirement).  This long-term planning can be invaluable when you are making divorce decisions (whether to keep the home or sell it… whether to agree to pay for college or not… etc.)  A financial planner can also help you manage your credit through divorce or establish credit in your own name.  Once the divorce (or financial settlement) is complete, your financial advisor can help you plan and manage your assets and monthly spending going forward in light of your new financial circumstances.
  • Accountant. An accountant can be an invaluable part of your divorce team – helping you to understand the tax consequences of various settlement proposals regarding the division of assets (what is the “basis” in that asset and what are the tax consequences of you selling it in the future), or how much a proposed alimony award will leave you to live off of (after paying state and federal income tax).  Like with your financial advisor, think carefully about using your marital accountant for this purpose.  Your marital accountant may owe an equal duty to your spouse and may share any information you give him/her with your spouse.  Instead, you may consider getting a new accountant to assist you through the divorce process.  This should be someone who can work closely with your legal team and financial advisor as needed.  (Some financial advisors have an in-house accountant who may be able to help).
  • Physician. If you have a serious medical issue or upcoming surgery or other procedure planned, it is important to understand how the divorce may impact your health insurance coverage and whether you need to make accommodations for major medical
  • Therapist. No matter how calm and confident you feel about divorce being the right choice, there WILL be a lot to process through the divorce.  Your entire life will  These other changes (even more than the dissolution of your marriage) may place huge emotional burdens on you.  Changing relationships may cause paid or confusion.  Some days you may feel empowered and condiment.  Others, you may feel depressed and paralyzed.  A trained counsellor or therapist can help you manage the roller coaster ride that is divorce.  There are also therapists and counsellors that can advise you and your spouse together (on how to co-parent or have a more successful relationship going forward), or who can work with the whole family (including your children).  If you do seek counselling for co-parenting or family counselling you may want a separate therapist to be your personal therapist (so you can ensure confidentiality in your communications).
  • Mediator/Arbitrator. Mediators and Arbitrators are professionals trained in alternative dispute resolution techniques – helping parties reach compromise or settlement outside of court.  There are mediators and arbitrators who specialize in custody and/or divorce.  Your attorney can help you get to the right professional for your case.  The Mediator/Arbitrator will serve as a neutral third party who will help bridge the gap between your position and your spouse’s position to reach a settlement or compromise.  Frequently, information disclosed in mediation is confidential.  Depending on the nature of the mediation/arbitration, you can attend either with or without your attorney.  Discuss with your attorney which approach is appropriate in your case.  Often, you will have the opportunity to submit a written Mediation Statement or Arbitration Statement in advance to “preview” your case and your positions to the professional.
  • Court. Depending on your jurisdiction, your local courthouse may have resources available.   Some Courts have a designated Family Law office or staff and almost all courthouses have written materials available to refer you to local resources.  Many courts have classes available either in-person or online on co-parenting (some of these classes may be mandatory).  Visit your local Circuit Courthouse to access these and other resources.  As an alternative to physically visiting the Courthouse, you can also visit the Courthouse online.  Anne Arundel County Circuit Court has an excellent Family Law site with lots of information about the process.
  • Advocate for your Children. In a custody battle, there may be opportunities to ensure that professionals are in place to assist or advocate for your child.  There are options for a Court-appointed “Best Interest Attorney” or other attorney advocate for your child (you and your spouse may have to pay for this professional out-of-pocket).  There are also options for the Court to appoint a “custody evaluator” or other professional to evaluate the custody situation and recommend what is in the child’s best interest.  Other therapist or counsellor options may also be available.  Discuss with your attorney the pro’s and con’s of having an advocate assigned to your child/children.
  • Other Resources for your Children. In addition to an advocate or therapist/counsellor, there may be “every-day” resources available to assist your child through this difficult time.  For example, you may want to discuss the divorce with a guidance counsellor at your child’s school and/or his teachers so they can pay special attention to your child through this undoubtedly difficult time.  It will be important for the school to understand as the custody situation evolves who has authority to pick up your child and with whom the school should communicate.  Make sure you discuss these issues with your attorney to ensure you are protecting your rights, and not infringing on the rights of your spouse.
  • Appraiser/Valuation Team. You and your spouse may not agree on the value of certain assets and this will likely become important in your case.  There are appraisers available to appraise the value of almost anything (real property, jewelry, cars, artwork, rugs, and ownership interest in a business or entity).  Talk to your lawyer about whether you need to get anything appraised and who should do it.
  • Insurance Agent. You may need to obtain an insurance analysis to determine your need for disability income and life insurance or life insurance on your spouse (for the duration of the time when he/she has financial obligations to you).  You may only be able to take out a life insurance policy on them with his/her consent so this may need to be negotiated up front.
  • Vocational Consultant or Job Placement Professional. Maybe you’ve been out of work for 20 years… is the Court really going to expect you to get a job?  The answer is probably yes (talk to your attorney about the specifics of your case).  You may not know where or how to begin.  A job placement professional or “head-hunter” may be able to help.  A professional vocational consultant may be able to meet with you and generate a report on your earning potential.