I recently wrote an article entitled, Need a Divorce Lawyer? 9 Questions You Must Ask to Decide Whether You Need a Divorce Attorney. If you are facing divore and considering hiring a divorce lawyer, I recommend you check it out.

In my years of divorce practice I have seen lots of lawyers handle divorce cases.  There are as many different styles as there are different lawyers.  But, I have also noticed three recurring styles of lawyer in particular.  I call them the lamb, the pit bull and the fox.

The lamb is the lawyer that just sort of goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the pit bull, who is exactly the opposite.  They hate to settle cases.  In fact, some of them won’t do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”   The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  And, so they work hard to maintain that reputation because it makes them a lot of money.

The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests.  Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals.  They act only on instinct.  When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).

The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client.  Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the pit bull and the fox.

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs.  Instead, find yourself a fox.

You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice).  You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared.  It does happen.

Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.

You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income.  If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.

If you have specific questions related to this issue in your case, talk to your lawyer or tax advisor.

In fact, I would not hire a lawyer that is not willing to represent you in a divorce on a fixed fee. I have a strong opinion about fixed fees vs. hourly billing. I am currently putting an article together that will go into this in much more detail, but I will speak very briefly to the issue here.

Why would you hire someone to handle your divorce case that can’t quote you a specific, total fee? Many lawyers will say they can’t quote a flat fee on a divorce because there are too many variables to accurately estimate a fair fee. That is nonsense. There are many variables involved in building a house, but when you contract to build one, there is a set price established on the front end and agreed to by both parties. If there is unforeseen work needed, a change order is prepared. Simple, effective, fair.

The bottom line is that hourly billing (coupled with the high pressure put on lawyers to bill more hours) places an incentive on a lawyer to engage in protracted litigation. That is not in the client’s best interests (particularly in the emotional turmoil of a divorce). Additionally, the client must feel like they are writing a blank check to the lawyer (because they are). Not to mention the fact that with hourly billing you are charged (usually in 6-15 minute increments depending on the lawyer) for every phone call, every e-mail, every meeting, etc. Is that any way to encourage open communication (which is absolutely necessary for effective representation)? Of course not.

I guess you get the point. My advice is not to hire a lawyer that is not willing to work on a fixed fee basis. I realize that is a controversial statement. It is one with which many of my fellow lawyers would vigorously disagree. But, I have been working on a fixed fee basis for over 10 years. I have been doing it exclusively for about 3 years. My clients love it because it takes away an unknown factor, it allows open, regular communication, and they never receive a $150 bill for a 30 minute phone call. I love it because I can focus less on tracking my time and more on resolving my clients problems (not to mention there are no such things as accounts receivable in my office).

For this article, I just want to focus on one thing:

Expertise – You should hire a specialist, not someone who dabbles in divorce work. The area of family law has become increasingly complex. A lawyer that tries to do a number of different practice areas cannot develop the depth of knowledge necessary to represent you in such a critical and complex matter as a divorce. The analogy to medicine is apt – if you need brain surgery, you don’t go to a general practitioner, you go to a specialist. In a divorce case, the stakes are high – you are determining what will happen to your children, your house, your retirement and your income for starters. That sounds more akin to brain surgery than to a chest cold to me.

The conversations that a lawyer and client have with one another are generally confidential. However, if another person is present during those conversations, it loses its confidentiality. That means you and/or the person that accompanied you to the meeting could be compelled to disclose what was discussed.

Additionally, it is better for only the lawyer and the client to talk so that the discussions can be more candid. The issues discussed in a divorce case will often involve some of the most intimate details of your life. You may not be comfortable discussing these in front of your friends or family members, but they are essential for the lawyer to be able to best represent you.

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.

I’ve included the questions to ask the lawyer in my upcoming book on Alabama Divorce.  I will post an update here on the blog when the book is printed.

Step 1: Find a Wise Guide

An experienced divorce lawyer I know is fond of telling his clients that you don’t need a lawyer to get a divorce, but you need them for the consequences of your divorce. He is right. You can likely get a divorce by finding some forms on the internet or hiring a lawyer that advertises for cheap uncontested divorces. If you have no children, a marriage of only a year or two in duration, no assets or debts have been accumulated during the marriage, and you and your spouse agree on everything, then you probably don’t need a divorce specialist.

Look for a lawyer that has at least 5-10 years experience practicing primarily divorce and family law. Find out the lawyer’s philosophy regarding litigating cases versus settling them. My personal opinion is that you should want a lawyer who makes it a priority to attempt to acheive a fair settlement for you, but who is capable and willing to litigate the case before a judge.

1. What behavior of clients still surprises you?
That couples who did not get along during their marriage expect a divorce judge to suddenly make them cooperate with each other.

2. What determines how fast a divorce can be obtained?
The psychological point the parties are at. Some are ready to end it, get on with their life. Others use the process as a catharsis to re-live their entire marriage, vent their frustration and assert blame.

3. What is the best advice to give to a non-custodial parent?
Be polite and kind to the custodial parent. They control access to your children. Regardless of your visitation, the custodial parent has tremendous control. You may be rude behind their back but never to their face. It’s a game you need to learn to play well or you could lose something greater than your pride.

4. What is the best advice to give a custodial parent?
Let your ex have the children as much as they will take them. You need a break. They are the perfect babysitter. You know they will take care of them and if they are around the children alot, they will be more sensitive to their needs.

5. Does joint custody work?
It can. Some people are naturals at it; others need a little help. A child psychologist can help those who don’t realize they have damaging behavior. Putting the child in the middle and parental alienation are classic problems in joint custody.

6. What is the worst fear of most women?
That their spouse will fight them for custody.

7. Do most men fight for custody?
There are two categories of those who do: Men who honestly want custody. Men who want to scare their wives into accepting less child support provided they later relinquish the fight.

8. How can you tell the difference?
From the obvious. Those who never spend any time with their children prior to the divorce being filed; those who travel and are never home; those who have girlfriends. These guys don’t want custody.

9. Any way to control those who are insincere?
For the ones who are just using custody as a fear factor, you should call their bluff. Offer them custody and watch them run.

10. Does guilt play a part in the outcome of a divorce?
Yes. Usually the party that seeks the divorce is willing to take less. Men who want the divorce and have children are willing to pay more support and often give up the house to the wife and children.

11. Does mediation work?
If you have an experienced mediator, you can usually resolve some of the issues. The mediator’s experience should match the sophistication of the parties.

12. As an attorney, what do you learn from the mediation even if the divorce doesn’t settle?
It’s a great way to evaluate opposing counsel and their client. Most clients and attorneys reveal the strength of their case at mediation because they are trying to influence the mediator. It’s a great way to find out everything that is going to be presented against you at trial. It is also a good way to find out what the opposing counsel knows about your client.

13. As an attorney, can you influence a mediator?
Usually, but you should do this when you are alone with your client and the mediator. You can ask the mediator to present issues a certain way. They will hold any information confidential that you ask them to. You can explore all types of settlement offers to find the give and take.

14. Is it advisable for the attorney to be aggressive at mediation?
I think you should save your best arguments and evidence for the Judge. Their opinions are the only ones that matter. If the opposing side hears damaging evidence prior to the trial, you can bet they will have a good prepared response when they hear it at trial.

15. Does the personality of the parties influence the Judge?
Yes. I like to find out what question I need to ask to make their spouse mad and that is the first one I ask.

16. How do you prepare your client for trial?
I prepare and go over their questions and answers in advance. That way they know at least 50% of what is going to happen.

17. What is the best advice you can give your client in the courtroom?
The judge determines everything. Although the judge doesn’t ask the questions, you should look at the judge when you answer. It is his courtroom. Get him involved. Read the situation. If he looks bored or disinterested, make your answers short. Be respectful. Don’t argue with the opposing attorney and never, never argue with the judge.

18. What practical considerations should a party consider when testifying?
The judge makes a decision based on a very limited view of the situation. In doing so, perception becomes reality. If one witness is better organized, more articulate, the judge can understand their testimony. For someone to make a decision, they have to be able to understand the facts. Unorganized testimony is difficult to follow. Also. perception gives credibility. Witnesses who are neat and clean and speak in an even tone without anger or bitterness are received as more truthful. Arrogance is a certain loser. Create advantages. If no one believes you, your evidence and testimony loses its importance.

19. Can you tell us if there are any tactics opposing counsel use that in your opinion have been unnecessary?
When they refuse to concede they are wrong and force the issue before the judge. These include filing a petition in the wrong county; asking for the non-custodial parent to pay for college when the law does not provide that they have to; denying their client had an affair when the client has had a child with their girlfriend/boyfriend; asking for support which exceeds the non-custodial parent’s income; demanding personal property for their client which was the pre-marital property of the opposing party; asking for half of spouse’s retirement when 75% was accumulated prior to the marriage; demanding visitation with their spouse’s children by a prior relationship. The list can be endless.

CLOSING THOUGHTS: I am assisting people at a very difficult time in their life when they are called upon to make major decisions when they are not emotionally prepared to make them. I try to give them a sense of control over a situation that appears out of control. I try and give them feedback on how their behavior will be perceived to the Court and suggest directions which reflects more favorably on them. I strive to narrow the issues to the best settlement possible so they can determine if it’s a settlement they can live with or whether they would rather take their chances with the decision of the Judge. Often times, a Judge will be more fair than the person you have been married to.

ORIGINAL SOURCE: DivorceNet