If you are reading this article, you have my condolences. You are probably either about to file for divorce or you have just been served with divorce papers. Divorce is an emotional and extremely stressful time in a person’s life, whether you are filing or responding, as you are dealing with the end of your marriage. During this time, people often reveal their true character. People who are jerks become even bigger jerks because a former loved one is now the enemy. In some instances, the person you thought you married becomes a complete stranger, doing spiteful things you never imagined possible. That adage that, “Hell hath no fury like a woman (or man!) scorned,” holds true in the divorce context. A jilted lover is ever that much more jilted when they’re about to lose half their house and pension. And so, with the battle lines drawn, when you choose your legal champion, consider the following three factors:
1. Communication Is Key
You will probably be on an emotional roller coaster for the duration of the proceedings, so it is important that you find an attorney with whom you can comfortably communicate and express your feelings. (Aside – don’t use your attorney as a therapist! It’s much cheaper to use a counselor.) Many people prefer either a male or a female attorney for whatever reason. Some people prefer their attorney to be one gender or another or to have a certain kind of demeanor, whether it be aggressive or more conservative. The important thing is that you have a feeling of rapport with your attorney and be able to communicate with your lawyer. Using the battle metaphor from above, what’s the point of having a “warrior” if he attacks the wrong target or leaves your important issues undefended? You must not only be able to communicate, but also the attorney must be able to hear what you want to get out of the proceedings and be able to respond to you. A good attorney will listen to you and help you set reasonable expectations about the resolution of your issues and (hopefully) the entire case. Communication is not just taking orders from a client (or the opposite – the attorney telling the client how the case will unfold). If every attorney blindly followed their client’s orders, the courts would be even more crowded than they already are. So true communication between the attorney and client is paramount. In a similar vein, if your lawyer doesn’t return your phone calls and you still have money left in your retainer, that may be a sign that communication is a problem.
2. Experience Is Vital
At the risk of sounding jaded, it is more likely your attorney went to law school to become rich than to help others. Most of my original lawschool classmates did not drive fancy cars, mostly because it snowed heavily where I originally attended law school and a jeep or other 4 wheel drive vehicle was the practical choice. When I went down to Southern California to finish law school, I was shocked to see a large number of Mercedes and BMWs in the student parking lots, driven of course by kids who had yet to work an honest day in their lives. They had access to money and had a very expensive lifestyle to maintain once they were taken of their parent’s dole. Quite a few fledgling attorneys hang their own shingle after passing the bar and set their hourly rate at $250 or more. It is engaging in a bit of speculation to say, but I would guess that they are merely playing a confidence game and that they get away with it because clients for the most part do not know how to tell how experienced a lawyer is. Well, here’s a litmus test. In California, the lower the bar number, the older the lawyer (in “bar” years). At the time of this writing, bar numbers for new California attorneys is in the 270,000’s (more than 40,000 California attorneys have entered the profession since I was minted). Put another way, you have a 20% chance of hiring a lawyer out there in the marketplace who’s been at his or her job 5 years or less! To put that in perspective, consider how long you’ve been at your job and how good you are at it. Lawyering is a complicated job requiring many different skills. Accordingly, it takes quite a bit of time to develop good lawyering skills. You should be blunt and ask your attorney how many cases of your particular type or with your particular issues have they dealt with. Another word for a generalist is someone who’s done a lot of different things once or twice. Compare that to someone who restricts his or her cases to a particular branch of law. When interviewing a lawyer, don’t be led astray with puffing like, “I’ve never lost at trial.” The logical thing to ask is, “How many contested trials have you had?” How many divorce cases have you handled from start to finish? How many domestic violence restraining orders have you defended? or brought? Experience and expense generally go hand in hand. If your attorney is charging you $300 or $400 per hour, they had better have quality time in the trenches to back up their hefty price tag.
3. Cost Is Always A Factor
Your attorney’s hourly rate should be a function of experience and skill, not of your attorney’s desire for the latest sports car. Once you have established your attorney’s skill level (even as a layperson you should be able to use your common sense to estimate your attorney’s experience and skill), you should ask yourself whether the attorney’s hourly rate is in line with other attorneys of similar skill and experience. A newbie might charge you $150 per hour, but may be charging you for their learning curve. A simple motion to compel, for example, should not take 40 hours of research and drafting. Granted, your newbie might take twice as long to do something as a lawyer who charges $300 per hour, so perhaps you may think you’re damned if you do and damned if you don’t, and you’ll wind up paying the same total fees for essentially the same “product.” However, this is not true because, if the billing was grossly out of line, (i.e., a reasonable and reasonably competent attorney would have spent half the time), then you have some justification in disputing the bill. You shouldn’t have to pay for something that’s clearly part of the attorney’s learning curve.
Generally, however, the more experienced lawyers will spend their time more efficiently than the less experienced lawyers. So your $400 per hour lawyer (if you’ve satisfied yourself that they are rationally charging such a rate) should be significantly (not marginally) more efficient than your newbie lawyer, etc. It’s up to you where you stand on the continuum of experience versus cost. The mid-career lawyers are probably the sweet spot in the curve for the consumer because they may not have ratched up their fees so high and they certainly know the ropes. In Southern California, it is not uncommon to see veteran family law specialists charging $500 or $600 per hour. (Aside – I once saw a family law specialist who charged $800 per hour. I nearly fainted…then nearly fainted again when I heard his client had paid $50,000 and the divorce was just starting!) With newbies likely charging their time out at $200 per hour and old guard specialists at perhaps $600 per hour, a seasoned “journeyman” lawyer of 10 or so years who may bill you around $300 per hour could be a wise and economical way to bring balance to the force…or, rather, your bank account and still get competent help.
As another aside, flat fee arrangements/unbundled services may be a way for consumers to cut costs of legal fees, but you should understand that you are only engaging someone for “piecework” and not full representation. You should remain alert at the wheel if your “ship” needs to change course or some wrinkle in the case comes up, such as an ex parte hearing. You still represent yourself and are only outsourcing certain tasks.
If possible, see if you can peg your lawyer down to an estimate of what your case is likely to cost. There are never any guarantees of course, because the other side might do something out of left field, but an experienced lawyer should be able to provide a range within which costs are likely to fall.
Of course, as the client, you would probably have some control over costs in that you would either approve or disapprove of a major discovery undertaking or the hiring of certain experts. Do you want to turn over every last stone or just the ones big enough to hid something under? The level of discovery and litigation can add considerable expense to your legal costs. A cost/benefit analysis might be done with your lawyer to assess the risk/reward and necessity of any particular course of action.
The above three factors, the ability of you and your lawyer to communicate, the experience level of your lawyer, and the cost of legal services, are three important things to consider when choosing legal representation. Each person has their own preferences, as one person may value communication more highy than experience and cost. For many people, price is definitely an object, and they’re willing to settle for less in terms of the other two factors. Personally, I wouldn’t settle on communication. There are enough lawyers out there so you can probably find with similar cost and experience profiles. Once you’ve decided on the cost/competence factors, communication does not cost anything extra, so it makes sense to find the lawyer with whom you can really work and with whom you can really communicate, all other things being equal.