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Apr 24, 2024, 09:27:27 PM

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How To Hire The Right Attorney

The one factor that will most influence the outcome of your divorce and custody case is your choice of the attorney who will represent you.

This is especially true in divorce and custody litigation where issues are often hotly contested. Divorce and custody cases tend to be complex by nature and often difficult to "prove" to the satisfaction of a judge.

Many good, even great custody cases have been lost because the attorney picked was unfamiliar with the intricacies of family law. Family law is an extremely strategic area of the law, and it takes a specialist in family law to know what moves and counter-moves to make. With that in mind, please consider these points when hiring legal counsel:
  • One important qualification for your attorney to have is to be a member of the American Academy of Matrimonial Lawyers. These are, as the name suggests, lawyers who specialize in matrimonial and/or family law. We cannot over emphasize the value of having an experienced lawyer who practices mainly in divorce and custody litigation.

  • One vital factor is how long your divorce process takes. The longer it takes, the more it costs. An attorney who can reach a reasonable settlement quickly (rather than waiting until a few days before court) will save you thousands if not tens of thousands of dollars in legal fees. Question any prospective attorney as to when serious settlement talks will begin- if the attorney is not willing to begin earnest negotiations soon without good reason, consider another attorney.

  • Another consideration is the lawyer's length of time in local practice, which can give you a good indication of their knowledge of the judge(s) who will hear your case. A "great" lawyer from out of town (who is unfamiliar with the judge) can be outmaneuvered by a less-skilled local lawyer who knows what the judge wants to hear.

    Why is past experience with the judge so important? By knowing the judge's likes, dislikes, preferences and prejudices, an attorney can present the kind of case (read: information) that is most likely to get the judge to see things their way. Judges are human and invariably have their preferences as to what kinds of evidence influences them the most. Some judges are strongly swayed by videotape, some are partial to "expert" testimony, some swear by documentation, and so on. It is vital that the attorney you choose know what kind of evidence to present to the judge or judges that will hear your case.

    Some judges are open to the concept of Joint Custody, others are adamantly opposed to the very idea. Many judges are from the "old school" of thinking and will always favor a mother over a father. Some judges see value in Parenting/Custody Evaluations, others consider evaluations to be "mumbo-jumbo".

    The point is that judges will be most convinced by their "favorite" kind of evidence, and it is imperative that your attorney knows what kind this is for each judge. Knowing what influences a judge and what his or her biases are lets you in what areas you may have to fight extra hard, and what kinds of things are likely to be granted without judicial opposition.

  • If possible, retain an attorney who has an above-average amount of "on-the-floor" courtroom experience. There are attorneys who excel at paperwork but are incompetent at trial. Needless to say, you don't want one of these. If your attorney is reluctant to actually go to trial (for whatever reason), get another attorney. While it's true that the vast majority of cases get settled out of court, one of the reasons for this is that attorneys who aren't willing to go to court get bullied or buffaloed into settling by those who are. You don't want to be pushed into an unfavorable settlement just because your attorney isn't comfortable going to court.

  • Never retain an attorney who claims they can handle your case for some fixed amount of money. The only way in the world this can happen is if you're in an amicable, uncontested divorce and you and your spouse have already settled every single issue. Otherwise, this should be a danger sign. Due to the nature of divorce and custody issues, NO reputable attorney will claim to be able to handle family law cases for a fixed amount.

  • Never retain an attorney who advises you to agree to something, telling you that you will get it changed later. It doesn't work that way. One of the hardest-learned lessons in family law is that "temporary" really means "permanent". Temporary custody nearly ALWAYS ends up becoming permanent custody. The same thing is true for child support, visitation, holiday schedules, etc etc. NEVER agree to ANY condition with the expectation that it will be changed later.

  • Never, ever hire an attorney who only dabbles in family law. A minimum of 50% to 75% of his or her practice must be family law. If the attorney you're interviewing ever says something like "Well, I don't usually do divorce cases, but...", politely thank the attorney and leave immediately; you don't need to waste any more time with him.

  • Be extremely wary of retaining an attorney who talks about appeals, especially during a consultation. Your case isn't over; it may not have even begun! What in the world is he or she doing thinking about an appeal? For an attorney to be thinking of appeals at this early stage should be a danger sign. This attorney may already have decided that you are going to lose your case and is therefore unlikely to fight vigorously for your rights and interests. They may take your money and help you lose gracefully, but is that what you want?

  • Retainer agreements generally do not call for any refunds should a specific number of hours not be expended. If the retainer agreement specifically states that the attorney will spend x number of hours on an issue in exchange for x $, then that is one thing. However, most retainer agreements state that once the retainer fee is used, based upon billable hours and expenses, then the client will agree to pay the attorney X $'s per hour.

    If at all possible, don't retain an attorney. Instead, hire them at their normal hourly rate and specifically state that the money you give them in advance is simply that: an advance on their normal fees. If the attorney insists on calling it a retainer fee, either look for another attorney, or make sure that the attorney will provide you with an itemized monthly accounting as well as a refund of any advances that have been paid should the case be concluded prior to the expenditure of all money that you have advanced to him or her.

  • Avoid 'divorce mill' firms. These are practices that churn out divorces assembly-line style. You may interview with the attorney but then be handed off to a succession of paralegals and/or junior members of the firm for continued 'processing' of your divorce. The result is that you have a lot of people involved in handling your case (who all have the meter running), with none of them actually familiar with the details of your case. (Note that this is not an uncommon way of handling things in a small law firm. The difference is that in a small firm the attorney and staff will almost always be more aware and more familiar with the particulars of your case.)

  • Be aware that in some states, an attorney can bind you to a settlement agreement without your express permission. In others, you must sign the document yourself, or assent in open court. If you want to keep control over the proceedings, you must have your attorney agree (in writing) up front, that he will not take any action without your express permission, unless circumstances are so urgent that there is no reasonable opportunity to reach you for consultation, and that under no circumstances is he to bind you to any substantive agreement.

  • Many attorneys will take the easy road, that is, they will do their best to use your version of the facts to win a point without checking to see if there may be a legal argument that already supports your winning without any facts at all. Don't let your attorney get away with not researching the case law. Get his agreement in advance that he will provide you with a thorough brief for any motions submitted or responded to.

  • There is a strong rationale to demand that your attorney not agree to any "in chamber" conferences with the judge. This is because such conferences are off the record and they frequently have a dramatic effect on the outcome of the case. If you want to know what happened, then force the court to operate on the record at all times. It may surprise you to know that this is completely legal- you have the right to be there in chambers right along with your counsel. Discuss this issue with the attorney before hiring or retaining him and come to agreement on it. This tends to become even more important if you're litigating from out of state.

To make things easier for the attorney to assess your situation, have the following information available at your initial consultation:
  • A short (2-3 pages) history of your divorce to date. Preferably printed or typed, broken out by date
  • Recent paystubs to verify your employment, last year's tax return and your W-2 statement(s)
  • Current address and phone numbers for both you and your spouse, plus spouses employer's address (if any)
  • The dates of your marriage and separation, plus a copy of your marriage certificate

To summarize:
  • Hire an attorney who specializes in family law
  • Hire an attorney who has been in local practice for a respectable amount of time
  • Hire an attorney who is familiar with the judge(s) who will hear your case
  • Hire an attorney who has significant experience in the courtroom
  • Don't hire an attorney who tells you he can take your case for a fixed amount
  • Don't hire an attorney who says to "agree now" and that they'll change things later
  • Don't hire an attorney who talks about or even mentions the idea of an appeal

Some additional thoughts on attorneys, courtesy of 'Ivan':

1. Remember, that in the end, an attorney is nothing but a rather prohibitively expensive tool. If the tool is rusty, dull, or not performing, return the tool as defective. Most times, the lawyer-tool detracts from adding value to a situation, so make sure you call one only when you can absolutely afford to, from a time and money perspective.

2. Be an effective consumer. Competition is good. Explain this to each lawyer who bids his/her services. Do market research on the lawyer and the law offices which specialize in your type of case. Build confidence by being informed. Most lawyers are rather lackadaisical negotiators. Use that to your advantage.

3. Know your case and caselaw; know the forms and civil procedures; at least read up on them. Make your lawyer explain him/herself as to the recommended course of action. If you don't understand or do not like that course of action, ask for another recommendation or fire him/her. Don't ever be wishy washy.

4. Wield your tool well. Don't overuse the tool for improper purposes. Remember, even the best tool in the hands of a fool will fail.

5. Get to know the managing partner. Or at least the business managing partner. Don't be shy about getting in the office to see him/her. If they leave you in the outer office, and won't see you, ask for your case file, final billing, and leave.

6. Insist upon performance, a plan of action, milestones and a timetable. If your lawyer claims to be overbooked or overworked, fire him. Never allow an excuse of "I am waiting on the other sides' attorney". Tell him to get out there and make it happen, or his fee is toast. Lawyers often believe themselves too smart for oversight. Disabuse yours of this notion.

Related article:
Also see Hiring An Effective Attorney

Articles in « Divorce First Aid »