There is a lot of incentive for litigation attorneys to blow sunshine up your skirt and tell you what you want to hear. In that first consultation at the beginning of your case, we lawyers are, after all, salespeople. We start with an optimistic overview of your case, and it will be awhile before we start to talk to you about any potential downside.
Plus, it's human nature to decide what you want to do, and then amass evidence supporting your position and discount evidence to the contrary. So we're going to help you do that, particularly at the beginning of your case.
Let's face it, nobody wants to hear bad news. But as an informed client, you need to be prepared for whatever might happen so that you can decide how to best handle your case.
If your lawyer is being honest, he or she will answer the following 9 questions:
- What is my best case scenario in this case? If the Judge agreed with everything I say, and nothing that my spouse says, what do you predict the outcome to be?
- What's my worst case scenario in this case? If the Judge doesn't agree with anything I say, but agrees with everything my spouse says, what do you predict the outcome to be?
- What's an optimistic, but realistic outcome?: Let's say the Judge agrees with a good part of what I have to say, and some of what my spouse has to say, what do you predict the outcome to be?
- What's a pessimistic, but realistic outcome?: If the Judge agrees with a good part of what my spouse has to say, and only some of what I have to say, what do you predict the outcome to be?
- Will you play devil's advocate?: Pretend for a minute that you are my spouse's attorney. What would you tell my spouse based on what you've heard today? Please do not sugar coat your "advice" to my spouse.
- What's the local reality?: I know you can show me copies of the law and legal cases. But based on what you're seeing down at the local courthouse, in the family court mediation and custody evaluation office, with the judges, and typical lawyer to lawyer negotiations, what are the realities of settling cases and trial outcomes? As a practical matter, what really goes on?
- Is it worth it to enforce my rights?: Can you quantify the amount of money which is in question? If I enforce all of my rights in this case, as opposed to settling for something less, how will that compare with the legal fees and experts' fees it will cost to get everything I'm entitled to?
- What's the range of cost?: If we went to court, what is the range of cost you'd see, given your experience with prior cases similar to mine, both high and low? Are you willing to put that estimate in writing?
- Will you put my money where your mouth is?: It sounds to me like you're pretty certain of the result you can get for me in my divorce case. Would you please put that in writing? And if you're not willing to do that, why not?
If this feels confrontational, you can feel free to print this out and hand it to your lawyer. Tell him or her that while you think it's crazy and overkill, your Huffington Post friend said to talk to them about this because it's really important.
Like I said above, there is overwhelming incentive for litigation attorneys to tell you what you want to hear. Read this "Open Letter from Your Divorce Attorney" for a real eye-opener, and the truth about why this happens all too often.
Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana's divorce blog on the Huffington Post
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Two more things:
1.) While it might feel rude to come across so confrontational, do not forget that most our day is spent in conflict. Any good lawyer would not take it personally and;
2.) Adding to the "local reality" question, ask your lawyer to explain what is going on legally in your case. If they cannot clearly explain the procedure to you then there is a good chance they do not understand it themselves. Further, be wary of the "condescending lawyer" who seems annoyed about your interest in the legal aspects of your case. It is not a matter of intelligence, it is the fact we underwent a lot of training--that is it.
There are so many variables in family law that it's not possible to present all possibilities and the fees and costs related to such. Every dissolution differs from the next. The parties are different, the children are different, the judge, the income, the assets, the debts, the hidden assets and hidden debts, the emotional maturity of the parties, the opposing counsel, the advice the parties receive from their friends and family, etc.... If an attorney is confident in how a case will end and in how much it will cost, I am equally confident in their inability to adequately represent my interests.
It's got to be one or the other.
In my observation, divorce lawyering is at best more or less just a wealth transfer from divorcing household to divorce lawyer -- an activity that not only adds no value to society (let alone the divorcing household) but actually causes harm to children.
Divorce law is actually has got to be the easiest law practice there is in terms of the precedent and legal/factual analysis.
But divorce lawyers claim that it is complicated -- and sometimes try to make it complicated -- because admitting the legal simplicity of divorce would make the divorce lawyer racket more visible.
The children should not even be in the divorce. The default rule if the parents can't agree should be equal time placement.
The assets? Take what assets you came into the marriage with and divide all other assets/debts in half. Fighting over assets has assets being transferred from the divorcing household to the divorce lawyers.
Hidden assets and debts? What does that have to do with a divorce lawyer? If false statements are made, then it is a criminal matter. Prosecute and have restitution done at sentencing.
A good lawyer will provide a likely outcome and range of cost for a matter.
If your divorce lawyer won't then ... guess what?
Even if that is true, the emotionally charged hatred between parties more than makes up for it. Hyper-technical Legal/Factual analysis is -not simply in terms of legal complexity- far easier.
Excrement doesn't call you at 3:00 am three times a week making accusations of incompetence because you failed to secure their silverware in a settlement. Let's say for the sake of argument that this happens two months in, long after the very sweet client you thought you knew signed a retainer agreement.
You are right though, it is not complicated but it is difficult. Admittedly, "if you can't stand the heat..." I agree with what you said about the terrain. If a client's interests are most important, then a collaborative option should be pushed. It saves a client money and the lawyer a headache. But if your case is stagnant yet your bills owed are not, and your lawyer "loves to fight" then consider a new attorney.
But, here's the problem; say, hypothetically, I am stress mediation a option. I advise you that doing this means completing the process in about 3-6 months, at a fraction of the cost, spare your child a great deal of psychological trauma and make a fresh start with minimal damage. Yet, relentlessly, you insist (usually yelling) that you will never sit in the same room or talk with your spouse? Put differently, at what point do you start to blame the client's demeanor? This example is far from rare.
There is a tremendous macho culture among men and women, where both look for the toughest lawyer around. The lawyer perceived as week or overly accomodating gets dropped. Bob, the problem is you have a pussycat for a lawyer and the other side has a tiger. Put some blame on the friends and family too who help create unrealistic expectations.
Mary, I have a friend who just went through a divorce, works full-time with 3 kids and lives in a small apartment, while her husband took his new wife on a three week European cruise. Bob, the thing you need to remember is you can always contribute more, but never less. I have a friend, he tried to be nice and take care of his wife and kids. He got a pay cut and asked about reducing support and his wife said, tough luck, get another job. The guy already works 70 hours a week, almost never sees his kids and already has high blood pressure and heart problems. His lawyer never should have told him to take that deal.
Add to it, people who call 3 times a week, ask for written reports, go to court on minor things The lawyers who tell people what they want to hear are like the restaurants who serve meals with high fat content; they meet the need of what people want.
He screwed up things in my case. He was unhappy with me because I found out/figured things out for myself and questioned him.
He tried to use intimidation tactics -- "there was a case decided last week in X county where the judge gave the wife everything" ... I asked him to send me a copy. He never did.
At the start of the case I made a comprehensive settlement proposal -- he told me "it is too early to settle".
He waived mediation without my authorization -- it is mandatory in my jurisdiction.
He told me "children do better with mothers" but I am certain that he has no knowledge of what is best for children.
He had me surprised with an arrangement that he apparently had agreed to on my behalf without ever talking with me. It was a bad arrangement but got rubber stamped at the hearing. The other lawyers asked "didn't your lawyer tell you about it?"
He was awful and I have done better in my case since I fired him.
My point: He was trying to build his mediation practice to the other lawyers/judge and so was selling me out in my case -- acting as if he was being "reasonable" when in reality he was just poorly prepared and a poor advocate overbilling his client.
The problem is that divorce lawyers not only know hot to sell but also how to evade giving straight answers. You won't get straight answers from a divorce lawyer on the questions. But you will get to see the degree of squirming and evasion and then you can make an evaluation of the character of the person to whom you will be giving tens of thousands of dollars out of your children's college savings fund.
Divorce is not really all that complicated from a legal standpoint.
If divorce lawyers were straight about that -- and straight with their clients, billings/revenue in the divorce industry would drop by more than half.
One other thing....it takes years for a lawyer to learn to step back from their files and even then the emotional toil it takes on you to deal with fighting people, some of whom are completely unreasonable day in and day out is substantial. The burn-out rate is higher than for any other type of lawyer.
Boyd Lemon-Author of "Digging Deep: A Writer Uncovers His Marriages," a memoir of the author's journey to understand his role in the destruction of his three marriages, helpful for anyone to deal with issues in their own relationships. Information, excerpts and reviews: http://www.BoydLemon-Writer.com.