9 Questions To Ask The Divorce Lawyer (Before You Write The Check)

Selecting the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, competent, and who regularly handles family law and divorce cases. Seek someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends and family members, but in the end, trust your own judgment.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

During the initial consultation with the potential lawyer, you may consider asking him the following 9 questions:

1. Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Of course not. Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 50%-75% (I’d prefer 90-100% if it were my case) of their practice, go elsewhere.

2. What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

3. What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

4. Will you send me monthly itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your trust account balance. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later. If you are being charged a fixed fee, this is obviously not an issue. You will know up fron what the entire fee is. The only statements you should expect to receive is for costs that have incurred on your case (such as for subpoena fees, filing fees, etc.)

5. Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

6. Who else will be working on my case? Other lawyers, paralegals, and/or staff members will often perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for less experienced attorneys and/or paralegals should be lower than that of the primary attorney on the case.

7. What efforts will you make to try to settle my case? The majority of divorce cases settle. Some are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Others settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer (if he or she has one), to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about mediation. Mediation is becoming more prevalent in divorce cases [Editor’s Note: It is required in most Georgia courts before a trial, or, in some cases, even before a temporary hearing]. If you think that it may be helpful in your case, you should ask the lawyer to explain the costs and benefits associated with mediation.

8. What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

9. Do you survey your clients to measure their satisfaction? You should not let a negative answer to this question preclude your allowing the lawyer to represent you. Because so few lawyers actually do survey their clients, there are many very good competent lawyers who don’t do this. However, all other factors being equal, a lawyer that surveys his clients to determine their satisfaction, is likely to render better service to his clients as he is more attuned to their feedback.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

Once you have found a good lawyer, remember that he works for you. Do not be intimidated by him. Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as his recommendations. However, in the end, you are the one who makes the decisions. Ultimately, if you are not satisfied with the lawyer, remember that you have the absolute right to terminate your relationship with him at any time, for any reason. Be careful in doing so, however, if you have a Court date looming. This can cause unnecessary delays or, worse, result in you having to proceed without proper representation.

Source for post: Georgia Family Law Blog

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.

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.