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Friday, 24 March 2017
Choosing an Attorney

I am often asked for attorney referrals by potential clients embarking on the divorce process. My usual response is that I am better able to make referrals after meeting with you, understanding something about your situation, what you prefer in the way an attorney will represent you, and getting to know you is a limited way. Even after all that, I will provide at least three names of attorneys for you to interview, assess and make your own best decision.

An attorney is not a commodity. This is a person with whom you must feel comfortable and about whom you must feel confident. You will need to have some of the most personal conversations of your life with this person and subsequently trust them to literally represent your best interests in a way that you wish to be represented. An unreasonably pugnacious attorney will make you seem unreasonable and pugnacious. Is that really how you want to appear to a judge? Even if you do not go to full trial, there will be brief court hearings during the divorce process that will impact the course of your case. It is your attorney who will speak for you in each of those instances.

It is often the case that your choice of attorney speaks volumes about how you want to proceed, based upon their reputation. I have seen people who were regretful about their choice of attorney because they were feeling combative at the time, but now just want to settle and get it over with. Unfortunately, the attorney was still in “fight mode” and would continue on this path because that is how they practice. Conversely, others may have hired a rather passive attorney, with strong leanings toward compromise and resolution to avoid trials, and ultimately they felt under-represented and outmatched by their spouse’s counsel.

Ideally, you will want an attorney who is willing and able to negotiate strategically with the intent to settle as equitably as possible, yet be capable of strong trial skills if, and when, needed. Family law is a specialty area of the law, so choose a specialist. Someone whose practice is at least 75% family law is recommended. There will be generalists who will be willing to take your case, thinking it is “just a divorce,” but that is not what you need.

Expect to pay for the initial consult. Professionals make their living by providing information, and you are there for information. You need to wonder why someone would not charge for their valuable time. Add to that, the age-old divorce game of “eliminate the attorney.” That is where a spouse interviews all the choice attorneys in their area so that each of them must recuse themselves from any contact with the other spouse due to conflict of interest. We call this “conflicted out.” So do you really believe that attorneys, and professionals like myself, should give free initial consults to people who have no intention of hiring them, only so that their spouse will be unable to hire them?

Prepare for your attorney interviews. Yes, you are interviewing them for a job that they may or may not get. Bring some documentation that summarizes the timeline and key events in your marriage, including children, as well as assets, debts and current income levels. Check everything you can about them on the internet:  website, Martindale-Hubble ratings, FindLaw ratings, AVVO ratings, key word search, social media, etc. Read articles on a variety of websites that provide insight to selecting an attorney.

After you search and read findings for “selecting a divorce attorney,” prepare a list of questions that are important to you. There are many suggestions in those articles that I will not repeat here. But I will say that you should cover several key areas with your questions:  their experience and specialization in family law; their availability in terms of current case load, responsiveness to email and phone calls, and how much of the work for your case will they actually do, versus handing it off to a paralegal; the divorce process and what is to be expected to happen; and financial arrangements like amount of retainer, refundable or not, replenishment requirements, billing, and payment terms.

Additional questions that are unable to be answered but can be revealing in terms of how they are handled are:  How long will the divorce take? (It depends.); How much will this cost? (It depends.); Can you work for both of us to save money? (No. Never.).

It is also revealing to observe the tempo and mood around to office. Are people pleasant and respectful? Or tense and condescending? This is how you will be treated as well.

As you prepare for your meetings, begin to compile a list of what factors will be most important to you in evaluating attorneys. It is best to do this beforehand, rather than after you are influenced by an interview experience and you downgrade the importance of a factor because he/she “was so nice” even though they lacked what would have been your most important factor. Then evaluate each attorney immediately following your interview and rate them on the things that are important to you.

The divorce process is difficult at best, but it can become better or worse due to the attorney you select. A final caveat, remember that you are hiring an attorney for their legal expertise. An attorney is not a financial expert, and will most likely have an exclusion in their services contract that relieves them of any responsibility for financial advice. If you need help understanding financial and tax issues, hire a divorce financial consultant. Likewise, an attorney is not a therapist. It can be very expensive to pour your heart out to an attorney. Even if they are a good listener, they cannot provide the help you need and should get from a mental health professional. You need to build a divorce team. While this sounds expensive, doing so may actually be less expensive and more efficient in the long run.

Posted on 03/24/2017 6:03 PM by Rosemary Frank


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