“Judge a man by his questions rather than by his answers” Voltaire
I have had many perspective clients come to me for an initial consultations. During these sessions, which often last for more than an hour, the perspective client often wants to tell me a bit about their life and the reason for their divorce and then they want me to explain the law to them and how it applies to their case. At the end of the consultation I ask the perspective client if they have any question for me. The most common questions are “how much will the divorce costs” and “how long will this take”? It is unfortunate that there are rarely any other questions. Getting divorced is an extremely serious and usually stressful endeavor. The relationship you have with your attorney and their approach and expertise in handling your case can make all of the difference in how the case proceeds and the ultimate outcome of your divorce. Remember this is a “job interview” and you are the one hiring the attorney. Here are the top twelve questions to ask any attorney you interview for your divorce.
- Are you trained in collaborative law? If you are interested in having a divorce that does not involve litigation and that puts your family’s interest and involvement first, consider a collaborative divorce. However, to have this option available to you and your family, you must first find an attorney that is trained in collaborative practice. Many attorneys are now listing collaborative divorce on their website because they know this is good marketing. It is up to you to make sure they are actually trained and qualified in this area of practice. Even if your case is not going to proceed in a collaborative model, hiring an attorney who is collaboratively trained will help ensure that the attorney understands the principles of problem solving and putting the needs of the family first. If you are not familiar with collaborative law or collaborative divorce, please check out my blog posts on this subject.
- Are you Board Certified (or have special certification in your state)? Each state has their own credentials to identify attorneys who have attained a certain level of expertise and specialization in specific areas of the law. Board Certification is the Florida Bar’s “legal expert” status and only 285 family law attorneys have attained these credentials. In order to become Board Certified in Marital & Family Law in Florida, the attorney must have been practicing a minimum of five years with at least 50 percent of their cases involving family law disputes, during the five years prior to the application for certification they must have represented at least 25 clients in contested marital cases with at least seven having been submitted to the judge for decision, they must have completed at least 75 hours of continuing legal education in the area of family law, they must receive a passing grade on a very rigorous examination, and they must satisfy a peer review assessment for ethics and professionalism. While there are many extremely well qualified attorneys that have chosen not to apply for certification, a simple way to screen for qualified attorneys initially is to look for Board Certification when considering what attorney to hire.
- Are you active in the family law sections of the local and statewide bar associations? One of the best way to determine if a potential attorney is up to date on what is occurring in the area of family law is to consider their involvement with other attorneys in their area of practice. These meetings are a good way to keep up to date on the latest changes in the law and most recent court decisions. Perhaps more important, these meetings allow the attorneys to network and develop professional relationships. I have had potential clients ask if I am “friends” with the opposing counsel in their case, and seem concerned if I tell them that I have a friendly professional relationship with this person. In fact, the best way to ensure that your case will be handled efficiently and professionally is if the two attorneys can work cooperatively towards a resolution. You should require that any attorney you select is active in their local bar association and collegial with their fellow members of the bar.
- What other professional groups are you a member of? There are many local and national groups that family law attorneys can become active in which will further enhance their knowledge, skills, and commitment in family law. These include the Family Law Section of the American Bar Association, the International Academy of Collaborative Professionals, the American Academy of Matrimonial Lawyers, and the Associations of Family and Conciliatory Courts. In addition, you can investigate local organizations that allow for collaboration and networking among family law professionals in the legal, financial and mental health fields. Involvement in these types of organizations by an attorney will demonstrate a varied knowledge in the interrelated disciplines often used in family law cases.
- What are the most recent continuing education courses you have taken in marital or family law? Attorneys are required to maintain a certain level of continuing education but you will want to investigate if the attorney has completed these course in the area of family law and if they are up to date on the most recent changes in the law. One of the most rapidly changing area of law has consistently been Family Law and if your attorney has not kept up with the changes they will not be able to properly represent you.
- Have there been any changes in the law recently that will affect my case? It is always good to ask specific questions on your case and with this questions you will be able to evaluate how familiar an attorney is with proposed or recent changes to the law that may affect your case.
- What would you say is the best strategy for my case? With this question you will be able to evaluate if the attorney considers a litigation strategy, a negotiation strategy or a duel track (litigation and negotiation tracks running simultaneously) to be the best approach to your case. Look for clues that will indicate that the attorney is setting the case in a very adversarial position such as advice to cancel insurance, close bank accounts or credit cards, make significant changes to existing parenting plans, or highly adversarial positions. In some jurisdictions these actions are not allowed, but in others they are permitted but will clearly set the case up to be very adversarial. This is not to say that in certain situations such advice may be necessary, but you must evaluate if your case is appropriate for such positions.
- Do you encourage me to speak with my spouse during the time that the case is pending? Some attorneys tell you not to speak with your spouse and to allow all communications about the divorce to go through their office. Others will encourage you to continue to negotiate with your spouse and try to resolve as much as you can without attorney involvement. Based upon the answer to this question you will be able to judge the position of the attorney towards the clients having control over the case. While it is true that in some cases premature negotiations may be harmful to your case and in others there may be legitimate concerns about domestic violence that require limited contact between the parties, you should be cautious about choosing an attorney that insists on a black and white “no contact” rule.
- What is your hourly rate? What is your retainer? And how do you bill for my case? These questions should be clearly discussed with the attorney and should be explicitly detailed in the retainer agreement that both you and the attorney sign. You should clearly understand how the initial retainer will be applied in your case and what are the expectations for replenishing the retainer. The last thing you want during this stressful time is to be surprised with a demand for a large retainer replenishment just days before you are scheduled to attend a full day of mediation or trial. Have this conversation in the beginning and keep the lines of communication regarding fees and retainers ongoing throughout the relationship with your attorney.
- Who will be working on my case? Will the case be handled predominately by a paralegal or associate? The answer to this questions will be intricately tied to cost as well. If the attorney will handle everything personally then you will be most likely be paying for higher level services. If an associate or paralegal is to complete much of the work, make sure you have an opportunity to meet these professionals and have confidence that you will be able to work with them as well as the attorney.
- During what hours can I reach you directly? How long will I have to wait for a return call from you or your office? Again, this question is specific to how the law office works. Understand the office’s policy for return calls, e-mails and emergencies. Make sure your expectations are consistent with the policy of the office.
- How can we keep the cost of the divorce down? Divorce can often be a very expensive. However, there are ways for you to keep the cost of the divorce down. My next post will cover this in detail but for now make sure that you follow the directions of the attorney efficiently and discuss with the attorney the strategy of your case to minimize the costs.
You will notice that the questions I do not list are “how much will this divorce cost?”, and “how long will this divorce take?” The total cost of a divorce is impossible to predict and any attorney that tells you exactly how much it will cost if he or she is doing hourly billing is not being honest. Some attorneys will offer a “flat fee” divorce but in my experience these are usually for uncontested preparation of a settlement agreements and if the case results in on-going negotiations over the agreement or becomes contested then the costs will rise. If you decide to go with a flat fee divorce make sure there will not be added costs for additional hours spent negotiating. Similarly, “how long will this take” is not something an attorney has complete control over. If you have an uncontested divorce with a simple settlement agreement signed by both parties the attorney may be able to predict the time until a final judgment is issued. However, your attorney cannot control the level of cooperation of the opposing side nor the delays that may exist in the court’s calendar. This is one reason why the collaborative approach is often best, as it allows the parties to work cooperatively towards an appropriate resolution without the delays caused by the court system or uncooperative litigants.