How to Choose the Right Lawyer

Norris Family Law

Many persons facing divorce, or a custody dispute, or some other family-law issue will be confronting the legal system for the first time. Finding the right lawyer can seem a confusing and sometimes overwhelming task. Here are some suggestions to help you find the right person.

Ask professionals in whom you have confidence. These include marriage counselors, therapists, clergy, accountants, attorneys in other fields, and financial advisors. They can often recommend a family-law attorney whose work they have seen first hand.

Seek referrals from friends and family members who themselves have gone through a divorce or other family-law proceeding. However, be careful that you don’t expect their result to be your result, or their experience to be your experience. Every case is unique, and facts, issues, and goals vary greatly.

Select a lawyer who practices family law exclusively or predominately. It is generally not advisable to retain someone who handles family-law cases as just one of many areas of law.

Consult attorney rating services that base their ratings on objective peer review of attorneys by judges and other lawyers. Martindale-Hubbell rates attorneys for both legal ability (“A” is the highest) and for ethics (“V” is the highest). The American Academy of Matrimonial Lawyers is a good resource because it accepts as fellows only the top family-law attorneys. The national publication Best Lawyers in America lists the country’s best attorneys. Another resource is the State Bar’s list of Certified Specialists in Family Law; though it does not rate attorneys, it does give the assurance that the attorneys on the list have met rigorous education, experience, and testing standards to attain certification.

Interview the attorney you are considering hiring. Find out if the attorney has had experience in dealing with the particular issues in your case. If custody will be disputed, ask about his or her experience in handling custody matters. If you want to move away with the children, or you are concerned that your spouse might want to, ask if the attorney has handled move-away cases. If your property issues involve such things as stock options, or the valuation of a business, or venture-capital interests, or real-estate or partnership holdings, find out if the attorney is knowledgeable about these.

Discuss approaches to dispute resolution—such as litigation, negotiation, collaboration, or mediation. Find out if the attorney will support the approach you want to take.

Be honest in the interview. Don’t hold back facts. Give the true picture of whatever your situation is—the bad as well as the good. That’s the only way you can get an honest assessment from the attorney and evaluate your response to that assessment.

Choose an attorney with whom you feel comfortable. This does not mean choosing a “feel good” attorney who tells you what you want to hear. It does mean choosing someone who you believe will be supportive and empathetic, who will be vigorous in advocating your interests, but who will be honest with you and always tell you the truth (about, for example, the strengths or weaknesses of a position you may want to take, or the dangers of a certain course of action if your thinking strays into a perilous direction). It also means that you want an attorney who listens to you respectfully, and who answers your questions openly and honestly and directly.

Ask about the attorney’s hourly rate and retainer (i.e., advance fees put into a client trust account for payment of the billings), and whether there are special rates for certain services (some attorneys, for example, charge a higher hourly rate for court appearances). Confirm that if any of the retainer is unused by the end of the case, the balance will be refunded. Confirm that the attorney will send you statements each month that list the services performed, the amount of time spent on each service, and the charge

We think you will find the above recommendations helpful in choosing an attorney. Remember: You will be working closely with this person in what will probably be an emotionally difficult time in your life, and you will be sharing very personal and private information and feelings. You want to be sure that the attorney has the professional expertise and personal qualities to give you the very best legal representation.

Preparing For Your Hearing

You wanted to settle your case out-of-court, but despite everyone’s best efforts, it did not happen. Now you find yourself headed for court. It’s natural to feel nervous if you have a court appearance coming up. Here are a few things to keep in mind:

Most cases are heard on the “20-minute calendar.” These hearings are brief; technically they are not supposed to last more than 20 minutes (although occasionally a hearing may run over the allotted time). This is because the judge will decide the issue based on the attorneys’ arguments only. That means you will probably not have to say anything in court.

Some cases will be set for an “evidentiary hearing,” or trial. This means that the judge will hear evidence from witnesses, very likely including you and your ex.

No matter which kind of hearing you are in, remember:

Always address the judge respectfully (i.e. “Your Honor”). Speak clearly and politely and do not interrupt, even if the judge interrupts you to ask a clarification question.

You will likely hear things that may upset you, either from the other attorney or from the other party. No matter how tempting it may be, do not roll your eyes, smirk, guffaw or exclaim when you hear someone say something you don’t agree with. Take a deep breath and let your attorney respond.

Dress neatly and appropriately for court, and arrive on time.

If you are testifying, answer the questions from the other attorney as honestly and simply as possible. Do not volunteer extra information, unless you need to explain an answer that would be incompletely answered by a simple “yes” or “no.” In that case, you may say “Yes (or no), but may I explain my answer?” The judge will likely allow you to.

If you have a question, you can discreetly whisper it or write it out to your attorney. However, keep in mind that your attorney needs to closely follow the testimony being given to ensure you are protected and well-represented, so only communicate necessary information.

If you become emotional while the hearing is in progress, know that you are in good company. Going through a divorce or custody dispute can be one of life’s toughest challenges and family court judges are used to seeing people cry or become distraught in their courtrooms. Just take another deep breath, accept the tissue the bailiff offers you, and calm yourself as best as possible.

What You Should Know About Depositions

What is a deposition? A deposition is where an attorney elicits the testimony of a witness (the deponent) via a series of questions. Although testimony is taken in an informal setting, the deponent is under oath and his or her testimony has the same force and effect as if he or she were in court testifying to the judge.

Who can be deposed? Either a party to the divorce, an expert (e.g. a party’s accountant or a real estate appraiser) or other witnesses (e.g. a police officer, friend or neighbor) who have relevant testimony or who may testify at trial.

What questions can be asked? The scope of the questioning is broad. A deponent can be asked questions about anything relevant to the lawsuit, including questions that may lead to the discoverability of other relevant evidence. Some of the questions typically asked of a deponent concern his or her recollection and/or understanding of facts, documents, events, a party’s contentions, or his or her opinions.

Will you or your ex-spouse be deposed? A deposition is a valuable discovery tool, but whether or not a party to a divorce is desposed depends upon a variety of factors, including the complexity of the case, the level of trust between the spouses, and the financial resources available for discovery.

What if I am deposed but don’t know the answer to a question? Memories fade and you are not to guess (although you are required to give your best estimate), so an appropriate response is to answer “I don’t know”, or “I don’t recall”. Of course if the question concerns one of your claims, your testimony that you don’t remember may have serious consequences.

What if I don’t understand the question? You or your attorney can request that the attorney asking the questions rephrase the question. The attorney defending your deposition will meet with you in advance to go over the ground rules of a deposition and explain how to make sure the deposition moves forward quickly and that you give your best answer to each question.

Can I correct my testimony later? Yes, you have the right to review the transcript (the booklet containing the attorney’s questions and your answers) and make changes, but if the change is a significant one, the opposing attorney can comment on your changes at trial. You can also correct your testimony at trial, but that is not advised, as the other attorney will point this out to the judge and your credibility may be affected. So the better practice is to review your case with your attorney to make sure you are prepared to answer all questions the other side may ask.

Safeguard Those Financial Records!

A common problem that clients encounter when starting a divorce is that they are unable to locate important financial records from the past.  For example, consider the following scenario:  A person came into the marriage twenty years ago with funds in a separate bank or brokerage account that was clearly his or her separate property.  Then, a few years later, $500,000 from that account was used for the down payment on the family residence.  Years pass, the account and the source of the down payment are forgotten about.  Now the parties are divorcing.  Under the law, the $500,000 will be reimbursed to the person who contributed it, but only if he or she can trace the funds.  To do that, you will want to have the old account statements to prove you had these separate-property funds, you we will want to prove that the $500,000 payment was written off that account.  But the records from that account can’t be found, and the bank or brokerage institution no longer has the records, sometimes because it has been taken over by one or more different institutions over the years, or (frequently) because it doesn’t retain records going back that far.

People often keep these old financial records “somewhere under the house” or “up there in the attic” or in that “pile of old documents in the garage.”  If they are still there and accessible, great.  But if the party who needs the records has moved out of the house, he or she may be told that the party remaining in the house “cannot find” the records.  Or, if it is the party remaining in the house, he or she may be unable to find the records and suspect it is because the other party took them when he or she moved out.  Whatever the reason, the records can’t be located, and the person can’t be reimbursed the $500,000.

Even if you never think you will get a divorce, keep in a safe place any records (however old) that show you had separate funds, and that they were used to buy an asset (typically, a house) with your spouse. 

Make sure the records are in a safe place that will be accessible to you.  

 Keeping Fees and Costs Down…

To state the obvious, we are in troubling economic times.  This often exacerbates existing family tensions and problems.  People find themselves facing family-law legal issues (divorce, child custody issues, support, etc.) that can be expensive to resolve.  Here are some strategies to help keep down the legal costs.

Remember that the emotional overlay in family-law matters often increases the cost of the proceedings.  Try (yes, it’s hard) to keep the emotions in check.  Don’t use the case to try to “get back” at the other party.  That will just make the case more difficult, longer, and more expensive.  Stay focused on resolving the legal issues and moving the case to conclusion.

If you are about to start a divorce, consider alternative approaches like mediation.  This is a cost-effective approach.  It is true, however, that not all cases, and not all couples, are right for mediation.  But even then, “traditional” representation (an attorney actively representing each side) does not have to be rife with conflict, and does not mean that the parties ever have to go to court.  If each party instructs his/her attorney that their goal is efficient, cooperative resolution of issues, that is how the case will progress—through discussion, to negotiation, to resolution.  Of course, all must be committed to this approach, and recognize the reality that it requires the other side to be as committed as you may be.

Don’t play “hide the ball” with information.  One of the costliest aspects of legal proceedings is “discovery”:  the formal process of gathering information and documents through such things as depositions, interrogatories, formal document inspection demands, and court motions to compel compliance if necessary.  The same information can be exchanged informally, at far less cost, so long as both parties cooperate in the process. 

Don’t think that going to court will be a vindication of your position or your feelings.  Family-court judges are not there to determine blame for a relationship gone bad, or to determine fault, or to blame or punish one side or the other.  They are there to hear the evidence about an issue in dispute, and make an order to resolve it.  Parties, regardless of the judge’s decision, don’t come away thinking that court was a great experience, that it met their expectations, and they were delighted by the process! 

Sometimes court (i.e., a trial or hearing before a judge) is necessary.  For a variety of reasons it is sometimes the only way to achieve fairness, or get a matter resolved.  But if you are concerned about keeping costs down, think of it as a last, not a first, resort.

Use your attorney’s time wisely and efficiently.  For example: Rather than sending three e-mails to her in a day, save your thoughts and put them into one e-mail; the same is true for phone calls; contact the paralegal rather than the attorney about procedural or other matters that can be handled at the paralegal’s lower charge; be prompt in responding to your attorney’s requests for information or documents, to avoid the necessity of follow-up; organize your thoughts, questions, and issues prior to meetings with your attorney so the meetings can proceed efficiently.

If you have an existing order for support (child, spousal, or family) and your financial circumstances have changed, contact your attorney to see if it can be modified.  If you are receiving support and your income has decreased, you may be able to request an increase.  If you are paying support and your income has decreased, you may be able to request a reduction. 

Finally, discuss with your attorney what can be done, in the particular legal situation that you are confronting, to make your case as efficient and cost-effective as possible.  

Reminder to Check Your Estate Plan

Regardless of your family circumstances, it is advisable to have your estate plan reviewed periodically by your estate planning attorney.  This is to be sure it is up-to-date in light of current law (including frequently changing tax law) and changes in your own family situation.

If you are contemplating a divorce or separation, or have filed for one, or have completed one, it is especially important to review your estate plan to update it.  This may, for example, involve revising your will, or terminating your living trust. 

We are often asked if a person can change his/her will or other estate planning documents during a divorce.  The answer is yes, although for some instruments there are procedural notice requirements that must be followed, such as when terminating a living trust.

Remember that estate planning does not just deal with how a person’s property will be disposed of after his/her death.  It may also include the preparation of powers of attorney so that, should you become incapacitated and unable to manage your affairs, you will have named the person or persons you want to handle your financial affairs and/or your health and medical affairs.  It should also include an advance health care directive to specify your wishes about end-of-life decisions.  

If you do not have an estate planning attorney, we at Norris Family Law can provide you with names of attorneys who practice in this field.  

How Can You Help With Your Case?

If you are involved in a divorce or a similar legal proceeding, you naturally will want to know how you can help with your case so that it will be efficient and cost effective.  Here are some guidelines.

Most importantly, check with your lawyer before doing something you think might be helpful to ensure that what you do will be useful, and done in a way that is really productive.

Ask periodically throughout your case what more you can be doing to keep fees down and speed the case along. 

If you can collect and organize financial records (as early as possible, even before a divorce action is filed), this is extremely helpful to your attorney, and cost effective to you.  Financial records include such things as recent tax returns; bank and brokerage statements; and, if there is a family business, profit and loss statements, and balance sheets.  If you or your spouse maintains financial records on the computer (for example, on Quicken), a copy of these records will provide your attorney with a wealth of useful information—everything from revealing sources and amounts of income, to determining reasonable expenses (for support purposes), to identifying assets and debts.

If custody and parenting issues are present in your case, it is helpful to maintain a calendar or log showing when each parent is responsible for the children, attends their activities and events, and takes them to appointments.

Beware the Armchair Lawyers

Many people rely on friends, neighbors, and lawyer-friends who do not practice family law to comfort and advise them during a divorce.  Nonlawyers, or lawyers who do not practice family law, often predict outcomes that are unrealistic and do not reflect the facts of the particular case.  These “armchair lawyers” can further confuse and exacerbate the process.  Only your lawyer can provide sound legal advice throughout your divorce, and give you guidance based upon the particular facts of your individual case. 

Remember, almost any divorce triggers a personal emotional crisis for the parties.  Divorcing spouses who are having difficulty thinking things through clearly may want to seek the help of a therapist or other mental-health professional to assist in emotional healing. 

If you have chosen a skilled, experienced family law attorney, he or she will have years of experience in guiding clients through the legal process.  Be careful about allowing a third party—however well intentioned—to get involved in the divorce.  It can end up being unhelpful rather than helpful.            

How to Turn Your Case into the Divorce Case From Hell

Thank you to the American Bar Association Family Law Section for coming up with the ways a person getting a divorce can create havoc and turn the process into his/her worst nightmare.  Here are the ways to create a true “War of the Roses”—(and make sure you don’t see yourself doing any of these things):

Focus on emotional destruction:  Spend a lot of time in self pity and search out shoulders to cry on (friends, family, your future ex-spouse’s family and, worst of all, your children).  Spread your pain.  Create emotional discomfort for others.  See yourself as a victim.

(Instead:  Take positive steps.  Engage in helpful therapy.  Find a support group with others going through the same process; they provide essential emotional and social support and will help in the bad times.)

Involve your children in the dispute:  Report your spouse’s bad acts to your kids.  Complain to them that their other parent can afford nice things but you can’t because he/she is so stingy.  Try to enlist the kids to support your side of things.  Bad mouth the other parent to them.  Refuse to take the kids to an activity or birthday party because it conflicts with your scheduled time with them.  Use the kids to “spy” on what the other parent is doing.

(Instead:  Don’t involve your children in your disputes with your spouse.  Encourage them to respect and love both their parents.  Don’t make them feel torn in their loyalty and affection.)

Expose your children to a new person right away.  As soon as you’ve separated from your spouse, introduce your new significant other.  Let the kids know they have to like the new person.  Have the new person around all the time. 

(Instead:  Give your kids time to heal and learn to live with, and understand, their parents’ separation.  Introduce the new person only when the time is right and the kids are ready.)

Get a good custody fight going.  Argue the other parent is unfit, doesn’t know how to care for a hamster, let alone a child.  Insist on a time share that will minimize the other’s time so that you’ll get more (or pay less) child support.  Insist that any activity the other parent wants the kids to participate in is totally inappropriate.  Use custody to try to get a tactical advantage in the property settlement. 

(Instead:  Try to keep things peaceful.  Focus on what’s really best for the children.  Don’t let the amount of child support drive the time-share decision.  Participate in co-parent counseling with your spouse, with a qualified mental health professional specializing in this.  Try to develop a cooperative parenting plan with your spouse.)

Play games with visitation.  Be late for pick ups and returns.  Ask for constant adjustments to the schedule (or, on the flip side, never agree to an adjustment even though it’s appropriate).  Fail to show up, and forget to call.  Send the kids to the other parent without appropriate clothing; refuse to let them go with clothes you bought.  Forget to send notices of school assignments or events. 

(Instead:  Be responsible and respectful of the schedule.  Focus on making things easier, not more difficult, for the children.)

Keep secrets from your lawyer.  Don’t tell about the secret bank account.  Don’t tell about the relationships you’ve had.  Don’t tell about the psychologist you’ve been seeing.  Don’t tell about that DUI or drug arrest years ago.

(Instead:  Be completely honest with your attorney.  He/she needs to know everything.  There’s nothing worse, and more harmful to your case, than learning on the eve of trial (or during trial) of some previously undisclosed fact.

Get upset if you see any cooperation between the lawyers.  Take this as a sign your lawyer is not on your side.  Insist he/she play “hardball”.  Resent any courtesies you observe.

(Instead:  Realize that if the professional act courteously and respectfully, this will facilitate settling your case, and will make your case go much more smoothly.)

Insist on going to court.  Cling to the belief that you’ll be victorious if only you can “tell it to the judge”.  Insist on going even on issues that your attorney tells you will not prevail.

(Instead:  Realize that going to court is expensive, and that success is never guaranteed.  While sometimes court is necessary, it is wiser to try to settle issues out of court.)

Insist on unreasonable expectations.  Refuse to listen to your attorney and consider rational alternatives.  Refuse to modify your thinking as your case develops and new facts come to light.

(Instead:  Discuss with your attorney, early in the case, the range of possible outcomes.  Focus on what you want to achieve, and what are the best steps to try to achieve it.  Listen to your attorney and the other professionals on your team.  Be flexible and reassess your goals as you move through the process.)

 Plan the “blame game” and focus on punishing the other side.  See yourself as the ultimate victim.  Vow that you’ll make him/her pay for all the bad things during the marriage.

(Instead:  Look to the future, not the past.  Focus on issues that are important to you and that are winnable.  Steer clear of finger pointing, anger, and revenge.)

Things to Remember to do when a Divorce is over

Update your estate plan and make a new will.

Check the beneficiary designations of your life insurance to be sure they are still correct.

Also check the beneficiary designations of your IRA’s, 401K’s, employer-provided pension plans, and any other retirement accounts or plans.

Change access to your safety deposit box.

Be sure that all joint credit cards have been closed.

Change title to your vehicles as necessary.

Change title to all bank and brokerage accounts as necessary.

Change beneficiary designations on all employer-provided benefits (such as group life insurance, medical insurance, stock purchase plans, etc.) as necessary.

Prepare a new power of attorney for handling your financial affairs should you become unable to do so.

Prepare a new Advance Health Care Directive.

If you need help in handling your investments or assets, seek the help of a reputable financial planner or advisor.