So You’re Going to Get a Lawyer

It’s happened.  Something has happened that makes your current situation untenable and you need advice or action from an attorney. Congratulations in making this important decision! Now don’t screw it up.

As previously indicated, I’ve just spent the last (temporal period) in the murk of family court, and learned a few things about how to select an attorney, how to work with an attorney, and how NOT to work with an attorney. NB: This advice is built out of my own personal observation and experience, so it’s entirely possible you may find exceptions to the rule.

Step 1: Find a Lawyer

This is so easy, right? There are tons of attorneys in the phone book; just pick one, right? Wrong. Things you need to look for in your attorney: 

1. They should either have been in practice for ten years, or be working directly with/for someone who has. This is because the first five years of post-law-school is spent in the fog of “Holy Crap I Need To Remember All This Stuff” and it takes some getting used to. Doctors have residency, attorneys do not (formally). You do not want a newb.
2. They should specialize in the field you need. This does not mean they do this sort of law and that sort of law and some other sort of law. If your attorney says they do tax law, family law, disability law and criminal law, for example, this is not a good sign. For one thing, it’s nearly impossible to keep up on all the legal precedents that change in those fields, and some of those fields operate so wildly different from one another they would serve you WORSE if the attorney switches methods. Case in point: in criminal law, if you have a warrant to search a house and the address is one digit off, or the name of the street is misspelled, or the name of the recipient is misspelled, it can be (usually is) grounds for dismissal. In criminal law, the exception drives the decision. In family law, the court looks down on attempts to draw exceptions based on a misspelling or single unchecked box.  The practical upshot is you wouldn’t go to a cardiologist for your brain tumor, and you wouldn’t go to someone who says they’re a cardiologist and oncologist and gastroenterologist for anything because there’s no way they’re an expert in all three. And the rules of the game are interpreted differently.
3. They should be honest. I know, right? Honest attorney? Like any other public practice there is likely a certain finessing of some truths, or dramatic characterizations, to prove a point. Fine. But if your attorney lies in big, easy-to-detect ways (e.g., “I’ve been in practice 30 years!” when they were admitted to the bar in 1991), it’s not a good sign – because they will lie as easily to you as they will to the court (or others).
4. They should have a publicly available reference. Use sites like Avvo or Justia to see what former clients have said – the good, the bad, and the ugly. Avvo has a ratings systems for attorneys provided by clients, along with reviews and testimonials. (Full disclosure – Avvo was built by expats of Expedia, the company I work for as of this writing).
5. They should be able to give you full alternatives. That is to say, there is no guaranteed legal outcome, ever. A good attorney will have a game plan going in, and you will know what it is. The discussion goes like this: If they do X, we will do Y, because of this and that reason. If they do A, we will do B, because of this and that reason, etc. Remember, it’s your dime: you are paying them for professional services, to advise you, and a good advisor is always aware of alternatives and should have contingent plans.
6. Speaking of dimes, they should be able to tell you how to minimize your fees. For example, in my case, I racked up some fees early on in the process by sending an email for every little question I had; instead of saving it for a fifteen-minute phone call (despite warnings from my attorney, who in her defense tried to train me out of this habit). The time it takes to read the email, formulate the response, and send the response (to multiple missives) is typically longer than you can get the same information via phone. A good attorney will point this out to you.

Step 2: Get ready for some discomfort.

Once you’ve got your attorney, there are some things you should know and understand about the process:

1. Attorneys are expensive. Rates vary from $200/hour to $500/hour (or more)– and typically the more experienced your attorney, the higher the rate.  Here’s some basic math: let’s say you hire an attorney to help you go to mediation. S/he sends 2 or 3 letters, preps for mediation, goes with you to mediation, and then does the clean up. That would run you about $7-10k, not including the mediator fee (which is usually attorney rates as well). Take a long look at you bank account, your savings, etc. and be prepared for some nasty drains.
2. Justice is swift… but only sometimes. There will be periods of frenetic activity (filing motions, entering pleadings, etc.) and periods of waiting. It’s hard to tell which is more frustrating – the weekends spent digging up financial data for the last 3 years (I held the process akin to a colonoscopy in terms of preparation and comfort), or the seemingly interminable waiting on SOMEONE to do SOMETHING – a court-appointed evaluator, the other side to make a move, your side to make a move, the court date or mediation date or settlement date to arrive. You’re juggling the calendars of the court, your attorney, their attorney, and any experts called in. In my case it was complicated by a school year. So don’t expect this to be “I hired an attorney this will all be sorted in a few weeks”.
3. The best way to not go to court is to be prepared for court. In my case, we were two civil parties trying to reach an agreement outside of court, but in order to do that, we had to follow the court schedule. In a family law case, before your actual court date – mine moved 3 times, the last one was the 14^th of January – there are a series of “assignment due” phases, as doled out the court. There’s the list of witnesses. Then a little bit later you have to supply your first (1^st) batch if interrogatories and requests for production (basically, here’s everything we’re going to look into in the court case and you have to answer it like you’re sitting in front of the judge). Then, you usually have to supply YOUR answers to THEIR “rogs”. Then there’s the inevitable follow up (hey, this is missing, or hey, what’s that). Then there can be depositions (mine didn’t make it that far) and/or a second round of rogs. Then there’s all the paperwork and letters and facts and case stuff you hand to the judge BEFORE the actual trial – so all the Perry Mason-like things you expect your attorney to say, quote, or reference have, in essence, already been forwarded to the judge ahead of time.  Keep in mind every one of these steps comes with a price tag – yours and your attorney’s (for you spend a not inconsiderable amount of time getting ready for these steps), and theirs and their attorney’s.  Each of these steps though gives you a bit more information to work with, and the price tag (and time, and information) can help drive parties to WANT to settle, as you get a very good idea of what all would be covered in a trial.
4. Speaking of “you answer their rogs”, the notion that you have any sort of privacy should go out the window. Like, now. In the course of this process I got a very basic set of “rogs”, probably boilerplate, adjusted just a bit to suit the circumstance. I think it was 20-something pages. I’ve seen rog requests top 50 pages, 110 questions, and 25 requests for production. There are no sacred cows – in mine, I had to answer about my health and health history and every possible thing about my finances you could conceive (really—including did I have offshore bank accounts, a trust fund, etc.). In others, you can be asked about your alcohol consumption, any felonies/misdemeanors, if you are or have ever been in counseling, what you “feel” about the situation, etc. Therefore, as of present, my embarrassing purchased coffee habit is not only known to the world through foursquare, it’s also known through the courts system.
5. Do not ever bluff, and do not let your attorney tell you it’s okay to bluff. If you indicate you are going to do something, do it. If you say you’re going to bring a motion for example, do it. Saying you are going to do something and then not doing it pretty much undermines your whole position and renders any prospect of being taken seriously in jeopardy.  Corollary: do not assume anyone else is bluffing, either.
6. Your faith, and trust, in your fellow man will be tested. You’ll be tempted to “just talk” to the other party, surely if you just used the right words to explain yourself, THEN they’ll understand, because it’s just not possible that you can both be so far off, right? Surely it’s all just a big misunderstanding? That may be: but any discussions you have will likely get twisted horrifically and thrown back at you, probably in a court document, and it will sting like the bejeezus. Save discussions and attempts to explain for after, for your attorneys, or for mediation.

Step 3: Try to enjoy the process.

I’m serious. Try to, at least if for no other purpose than to recognize you never, ever want to be in this position again, and you’re paying a lot for the privilege. Try to look at the process as a learning experience, watch how it works, and so forth. It helps take some sting out of the fact that you are spending a lot of money and time.

One final note: as I sent out the news to family and friends who had been asking near daily how it was going, I was asked a lot if I “won”. You don’t win in a family legal battle, any more than you win at a family argument. Damage is done, beyond finances, that is fixable but the scars remain permanently. In this case, it’s damaged trust. I didn’t “win”. I did however manage to get written down, and ordered by the court, the things I found important. That is defined, then, as a “good outcome”.