More on Alternative Billing

A little while ago I posted here regarding my belief that alternatives to hourly billing were best in many, if not most, cases, including family law cases. Ben Stevens at the South Carolina Family Law Blog has taken up the issue. Here is Ben’s latest post on this subject (and, for what it is worth, I agree completely with Ben, and disagree with his critics):

My two articles published last week (here and here) on the subject of using fixed fees in family law cases have created a bit of a buzz. Some bloggers, like Grant Griffiths of the Kansas Family Law Blog, agree with me. Mr. Griffiths writes that he has been using fixed fees in his family court practice for over three years, and he agrees with me that this method benefits both his clients and himself.

However, others, such as Daniel Clement of the New York Divorce Report disagree and still advocate the “hourly” billing model for his family law cases. Mr. Clements questions whether fixed fees are appropriate in anything other than “simple” cases, i.e. those that are limited in scope, and he believes fixed fees to be inappropriate in more involved cases. He focuses his concern on the possibility that parties in family law cases might take “irrational and economically untenable positions fueled by emotions.”

I probably had the same type of concern before I began handling cases in this manner. However, after using this method for a few years, I can say from experience that it is unfounded. Among other things, I use the following two methods to help prevent this from being a problem in my practice:

1. I am very, very selective in choosing which clients I agree to represent. I estimate that I reject approximately one-half of the potential cases that I could accept. I only agree to represent those clients that meet the following criteria: (a) the client’s goals in the case are reasonable; (b) the client is willing to help my office work on his/her case; and (c) the client is someone that I truly want to help. There are other more subtle criteria that I subconsciously apply, and I will admit that a lot of it is done by “gut feeling”. However, after doing this for so long and handling so many cases, my gut feeling is right the vast majority of the time.
2. In most family law matters, I usually break the case down into different phases, at which portions of the fixed fee will be due and payable. This can be done in different manners, such as by time or by status of the case, but the point is that if a case gets resolved during any particular phase, there are no additional attorney’s fees due. This scenario gives the client incentive to help resolve the case sooner rather than later if a reasonable resolution is possible, but at the same time, the client is protected and knows his total cost if it is not. Having all of this information available to the client up front helps him/her better assess any settlement offers and the case in general as it progresses.

Mr. Clement’s post made me wonder about his thoughts on these questions:

1. How does he handle “unreasonable” clients that he is representing on an “hourly” basis? I believe that the problem he references is more with the clients themselves than with the manner of charging for the attorney’s time. Back when I did charge by the hour for my time, I would typically withdraw from the representation if my client was acting unreasonably. I still have that same option available to me now while using a fixed fee, but it is very rare that I have to exercise that option because of my stringent client selection criteria as discussed above. Either way, I do not want to represent unreasonable clients, period.
2. Does he agree with the harsh opinion expressed by Robert Hirshon, former president of the American Bar Association, that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity”? I believe that clients don’t care how long it takes you to produce those results – they only care about the results themselves. I believe that the hourly rate can encourage (or at least reward) inefficiency on the attorney’s part, because the longer it takes to do something, the greater the fee charged to the client. Also, if I were the client, I know that I would feel uncomfortable in effect writing the “hourly basis” lawyer a blank check and hoping that he/she keeps the fees as low as possible.

I challenge Mr. Clement to handle just one case on a fixed fee basis and to then post his thoughts about doing so. I am confident that should he do so, he will quickly see why I am such an advocate of this method. I handled cases on an hourly basis for over a decade, and I can say without hesitation that the fixed fee basis is vastly superior for both attorneys and their clients. I invite others to let me know their opinions on this topic by posting their comments.

Source: South Carolina Family Law Blog

Burying the Billable Hour

It has long been my belief that the billable hour system, by which many attorneys charge their clients and earn their livings ( and as I do, too for some matters, by way of disclosure) creates an inherent tension between the attorney’s interests and those of the client. If the attorney is being paid by the hour, doesn’t he or she benefit from taking as much time as possible, or at least as much as the client will be willing to pay for, in completing a task? Of what possible benefit is this to the client? This is a primary reason that I have started to use alternative fee arrangements, such as flat fees, staged fees and success based fess and the like, for more matters, with the goal ultimately of using such arrangements in all cases. It is my view that legal fees, like fees for any other service, should be based on value added. Even some in biglaw are now seeing the light. In an article in the August 2007 issue of the ABA Journal, best selling author and Chicago litigator Scott Turow fairly well lays bare the flaws in the billable hour system. Whether Turow’s large law firm colleagues follow his lead or not, however, I intend to continue to pursue a full transition to alternative fees. My clients deserve nothing less.

“Get a Divorce Billboard” Taken Down

Many of you may have heard something about the so-called “racy” billboard that Chicago area lawyer Corri Fetman put up to advertise her divorce law firm. The billboard , which read “Life is Short. Get a divorce ….” received a lot of national press, in no small part because of the scantily clad male and female figures depicted in the ad. USA Today now reports that the billboard has been removed because, municipal officials claim, Fetman had not obtained the necessary permits. Fetman and her partner claim that the billboard was removed without due process. While I agree with the arguments that many made that the ad, which seemed to promote divorce and suggested getting a divorce as a means to a more exciting sex life, was in poor taste and reflected poorly on lawyers in general, and family law practitioners in particular, I also hope that the stated reason for removing the billboard is truthful. Ms. Fetman has the same free speech rights as the rest of us, even if her chosen method of expressing herself sullies our profession.

A Taxonomy of Family Court Judges

Divorce Magazine offers a description of the various “judge types” who may sit on your family law case. While I have some disagreements with some of the descriptions, and some of them are a bit redundant, there are more than a few grains of truth in the piece. I have run into most of the specimens described ( and agree, too, that most judges combine a variety of these traits):

The Judge

In the continuation of a six-part series of excerpts from the book, Divorce: It’s All About Control—How to Win the Emotional, Psychological and Legal Wars by certified family law specialist, Stacy D. Phillips, she discusses the different “types” that tend to control a divorcee’s divorce process in the courtroom. In this segment, Ms. Phillips details the characteristics of the “judge variety”—those individuals who often assert authority taking complete control of a couple’s divorce, leaving them at the mercy of the courts.

The “Heard-It-Alls”	This category of judge has little patience for the daily routine that goes on in the courtroom, between counsel, or for that matter, the parties, and refuses to grant continuances for “frivolous” reasons. Heard-It-Alls become easily fed up with standard excuses and can see past every histrionic ploy. Don’t try to pull anything over on a Heard-It-All because they already have heard it all! This moniker suggests a negative connotation. However, the label can equally apply to a very experienced, no-nonsense, truly fine judicial officer who, indeed, does know it all.
The “Peacemakers”	Contrary to the Heard-It-Alls, the Peacemaker is the type of courtroom boss who attempts to get the parties to come to terms and may even suggest the case be continued until additional settlement discussions can take place. The Peacemakers are known for being big on child rights. They also tend to be more sensitive to the perils only divorce can bring. As such, they try to minimize the trauma of the courtroom experience on the parties who come before them.
The “Technocrats”	This group tends to care less about the “people” side of the hearing and rules by the book. They typically have no “heart” and could care less about the parties personally. The way the Technocrat sees it, they have one duty and one alone: to uphold the statutes under which the marital laws fall. Do not try the emotional plea or pray to the Technocrat for mercy. A Technocrat will rule right over you!
The “Equalizers”	This group always wants to do what is fair and usually come from a “one for her, one for him” point of view. They have a “split down the center” mentality. As such, they are calmly focused on dividing everything equally—that includes responsibility for the children, assets and liabilities! Their focus is on equality, whether it means ordering each party to pay his and her fair share of attorneys’ fees or picking up responsibility with regard to the children. Though equitable, this judge does not have any patience for antics, so save any outbursts for the hallways.
The “Solomons”	Often times they are not focused on what might please the parties or what will cause the least amount of havoc. The Solomons are simply trying to get to the bottom line—or at least what they perceive is the right result. Like King Solomon who knew that the real mother would not allow him to “split the baby,” the Solomonesque judge will work with the parties to achieve the right moral result. This approach is particularly important in child custody disputes.
The “Hammers”	Highly respected for their familiarity with all the family law statutes—new and old—the Hammers will strictly enforce each code. Low on patience, they are high on authority and not afraid to wield it. The Hammer often reaches a conclusion on the merits, i.e., decides the outcome he/she wants and then strives to reach that result through rulings and/or pressure on the parties. Hammers are particularly dangerous if they are not well versed in the facts or the relevant legal issues. You never want to get on the bad side of Hammers because they can pound you right into the courtroom floor. Good for you if the Hammer rules in your favor, but it could go the other way next time!
The ‘Judge’s Judge”	combines the best traits and skills of each of the judges described above and is thoroughly well versed in all aspects of the law and is not afraid to make the tough call or lean hard on the parties when necessary. This judge does not mind hardball, but insists on fair ball. They can be Solomonesque when appropriate, or address issues with diplomacy. A Judge’s Judge takes each case individually and listens to all the facts before making a decision. These judges are typically compassionate types who make both parties feel as though they were well heard and their requests considered.
The “Lazy Judge”	combines the worst traits of the various judges described above (except, of course, the Judge’s Judge). This is the judge who doesn’t read the papers and simply goes through the motions of performing his/her judicial duties. The Lazy Judge may fall back on hyper technicalities, “split the baby,” or do anything else necessary to get the matter off his/her docket. With the other judges—for better or for worse—you can plan. With the Lazy Judge, the outcome is truly unpredictable.

Your judge can be a mixture of some or all of the above. As you go before them, know that they can have tremendous control over your marital circumstances. This can bode well for you or it can be difficult, depending on how the court’s rulings come down, and it can affect you for years to come!

Source for post: Divorce Magazine

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Do You Need a Lawyer For Your Family Law Case?

Ben Stevens of the South Carolina Family Law Blog published this interesting post on this question:

Parties involved in Family Court cases face some of the toughest issues that people must deal with in their lives. Divorce and separation cases involve the loss of a partnership and the end of a relationship that was once close and filled with love. Custody and visitation cases affect the amount of time that a parent spends with the most precious thing in his or her life. Other cases involve financial issues which can determine whether a party has enough money on which to survive in the short and/or long term.

When faced with these important issues, most people want to seek the advice and assistance of an experienced, competent attorney. Ideally, you want to find an attorney who is not only trained in and very knowledgeable of the law, but who also has experience in preparing documents, courtroom procedure, settlement negotiation, and other aspects of Family Court cases. Hiring an attorney will help things to run more smoothly in your case and will increase the likelihood of your receiving a favorable result in your case.

Although it is possible to represent yourself in Family Court, it is not advisable in the vast majority of cases. Should you choose to represent yourself, the Court will not be able to assist you with your case in any manner. You will be held to the same requirements of the other party’s attorney with regard to the law, procedure, and all other issues. Should you mishandle your own case due to lack of knowledge or lack of skill, it is unlikely that an attorney will later be able to undo your mistakes.

Typically during your first meeting with an attorney, he will be able to assess your case and advise you of your rights and options in light of the specific facts of your case. Considering the types of issues addressed in Family Court cases, you must be comfortable sharing with your attorney information that may be personal or otherwise confidential. Certainly, doing so may be uncomfortable for you, but these types of details can make a big difference in your case. Your lawyer must be aware of everything that might pertain to your case, so it is important that you be comfortable in sharing these details with another person.

Though many people may balk at the cost of hiring an attorney, the fees charged are usually worth the experience and professionalism that an attorney can bring to the courtroom. There are certain areas of the law in which an experienced, aggressive attorney is highly recommended in order for you to have a fair trial or to negotiate the settlement that you deserve. If you had to ask yourself whether you need an attorney — you probably do and you’ll be glad later that you did.

Source: South Carolina Family Law Blog

The End of Free Consultations?

One of the most frequently discussed issues among attorneys os whether to provide free consultations or to charge for the intial appointment. While, in my experience, the majority come down on the side of charging at least some nominal fee for the initial consulation, there are good arguments on both sides of the question. Christopher zpearsall of the Providence Rhode Island Legal Solutions blog recently had a very well reasoned post on this subject. Read his thougths below the fold.

Electronic Discovery

The Winter 2007 issue of Family Advocate (not yet available online), a publication of the Family Law Section of the American Bar Association is devoted to the subject of electronic discovery. The issue contains a wealth of information that ought to be of interest to ALL family law lawyers, as well as any lawyer that has any kind of litigation practice. In addition to an article discussing the recent amendments to the Federal Rules of Civil Procedure relating to electronic discovery, the issue contains sample documents requests, information preservation letters, discovery related motions and deposition checklists. I simply cannot recommend this issue of the magazine highly enough. If you are a member of the Family Law Section, save this issue. You will consult it frequently. If you are not a member of the section but practice family law, or any are at all involved in a litigation practice, get a copy (information available here).

Should You Do It Yourself? Why a Good Divorce Lawyer May End Up Saving You Money

Lawyers and dentists share some things in common. No one likes to go and see the dentist, and no one really enjoys a visit to the lawyer. If it is a family law lawyer, odds are pretty good that the circumstances that bring you to the lawyer’s office are not happy ones, or necessarily of your own choosing. Given the cost of legal services as well as the perception – deserved in many cases – that lawyers are not terribly responsive to their clients needs or concerns, and it is easy to understand the impulose to “do it yourself.” When it comes to family law, and divorce in particilar, is this a good idea? DivorceHQ.com provides some good food for thought on this question. Read more below the fold.

The Life of a Divorce Lawyer

On January 1st the Asbury Park Press ran this piece on West Long Branch lawyer Ron Rosen. For anyone considering getting into this area of legal practice, or who is wondering what it is like to practice family law, the article on Rosen provides a pretty decent glimpse.