Advice from an experienced family lawyer on best practices for family lawyers, including: how to excel in the family law arena, to conduct a successful initial consultation, to work with your client, and how to grow your practice.
By Henry Gornbein, Family Lawyer
Family Law is often overlooked as a weighty and important area of practice, but the truth is that it is a vital and complicated legal area. Think of the fact that when people marry or start a relationship they believe it is forever. Sadly, approximately half of all marriages end in divorce. This is not even counting the many relationships that fail without marriage but leave children to be dealt with after the breakup or a one-night stand.
Everyone is unhappy in a divorce and it can be one of the most stressful and traumatic events in one’s life. Some psychologists rank divorce among the worst possible events, second only to the death of a child or spouse. Divorces are difficult. Whether settled out of court, through mediation, or through a trial, a divorce can result in the following scenarios:
- Parents spend 50% or less of their time with their children.
- If one parent is paying child support and the other is receiving it, both sides are often dissatisfied with the amount; one feels that it is too little and the other feels that it is too much.
- Similarly, if spousal support is ordered, the recipient feels that it is too little and the payor believes that they are paying too much (especially since the Tax Cuts and Jobs Act removed the tax deduction for spousal support).
- Spouses must divide marital debts as well as property
- There is a tremendous emotional cost to every divorce or custody battle.
- Attorney fees can be a delicate issue. Although usually untrue, many clients feel that they got a lousy deal and could have achieved the same result without having to pay for a lawyer.
Best Practices for Family Lawyers: Family Law Requires Broad and Deep Expertise
Do you outsource portions of your family law cases because you lack the experience or training to complete them yourself? Do yourself and your clients a favor by taking relevant seminars and courses and acquiring designations outside the law arena, such as:
- Certified Divorce Financial Analyst® (CDFA®) (www.institutedfa.com)
- Certified QDRO Specialist (CQS) (www.aacqp.org)
- High Conflict Institute (HCI) (www.highconflictinstitute.com). If you find yourself regularly dealing with high-conflict people (clients, their ex-spouses, or even opposing counsel in some cases), consider registering for webinars and online courses from the HCI.
To excel in the divorce arena, an attorney must have a wide variety of legal know-how and must be versed in a diverse array of legal principles that go beyond divorce, custody, and support laws. A divorce attorney must also be familiar with:
- Real estate law. Not only to deal with the marital home, but also to deal with investment property, commercial real estate, or a family farm in some cases.
- Business and corporate law. This can be very important, especially in high-asset divorces where one spouse must be compensated for the marital portion of a family business or multiple business entities.
- Tax law. Also, being able to read a spreadsheet, balance sheet, or a complicated tax return – whether business or personal – can be critical in many cases.
- Retirement assets (including Social Security). Some divorces will involve gifts, inheritances, or tort claims.
- Family trusts and wills. These could be key issues, especially when property has been accumulated over generations.
- Ante- and postnuptial agreements.
- Criminal law and personal protection orders. Domestic violence and alcohol or drug abuse are increasingly important factors in many divorce cases.
Consider the Divorce Variables
Every divorce will have numerous variables that can impact it to a greater or lesser degree. The first variable to consider is the reason the client (or their spouse) is seeking a divorce. The second is the client’s personality, outlook, and ability to make reasonable, intelligent decisions. The third the other spouse’s personality, reasoning, and idiosyncrasies. The fourth is the attorneys: how competent each one is, their personality, and attitude. The fifth variable is the judge: their personality, attitude, and biases.
Combined with these variables are several other factors that have an impact on the result. A wide variety of experts can be crucial. These can include therapists involved in counseling or psychological evaluations, or guardians for the children, or a “friend of the court.”
Where there are businesses, you will likely need to bring in a forensic accountant to help with a business evaluation or to establish true income for a self-employed spouse. There can be real estate appraisers for both commercial and residential real estate. Appraisers may be needed for art, jewelry or antiques, as well as collectibles. There can also be vocational experts, certified divorce financial analysts, and financial advisors.
Some divorcing clients prefer to work with mediators, arbitrators, or a collaborative divorce team in order to avoid court; the process they choose is another variable in a divorce case.
Best Practices for Family Lawyers: Tips for the Initial Consultation
- Do not oversell a case. There will be problems when you cannot deliver what you promised.
- Remember that the potential client is evaluating you just as you are evaluating them.
- Block off plenty of time for a new client’s initial consultation; never make them feel rushed or unimportant.
- Do not take phone calls or allow interruptions during the consultation.
- Answer questions honestly. If you do not know the answer, say so and tell the client that you will look into the issue.
- Elicit as much information as possible so that you have a good grasp of the case and potential problems at the end of the consultation.
- Discuss fees, including how time is billed for phone calls, office work, e-mails as well as work done by other members of your staff.
- Always present a written retainer agreement to new clients.
- Provide the potential client with an outline and overview of the process as well as what to expect.
- If you think there are potential problems, let the client know about them.
- Beware of “shoppers”; some unscrupulous people will try to eliminate all of the leading attorneys by conflicting them out with a perfunctory initial client interview.
- Similarly, do not become a potential client’s fourth or fifth attorney if you can avoid it. I was the first attorney on an infamous case where the client ultimately ended up going through more than 16 attorneys. In some divorces, there are personality issues or a breakdown of the attorney-client relationship – however, there is almost always a problem with a client who hires-and-fires his or her attorneys regularly.
- If you have a team working with you, have the potential client meet the other attorneys or paralegals who will be working with you on their case.
Best Practices for Family Lawyers: Working with Your Client During the Case
- Timely communication is critical, so try to return all phone calls the same day. Surveys have shown that most clients expect to have a phone call returned within three hours. If that is not possible, instruct your staff to apologize and explain that there will be a delay in returning their call due to court or other pressing matters. Respond to all e-mails and texts in a timely fashion as well.
- Document everything, copying clients on all correspondence including letters, e-mails, pleadings, and any other information that is part of the case.
- Face-to-face meetings during a divorce or custody battle can help to reassure distraught clients.
- Divorces go in stops and starts. Sometimes there may be weeks or even months where little is happening. Check in with your client to make sure that he or she knows what is going on.
- If there are court appearances or hearings, make sure that the client is prepared. It goes without saying that you must be prepared, too.
- In court, be succinct. Judges do not want a longwinded presentation that never gets to the point. Pleadings and oral arguments should spell out what you want for your client and why.
- Your client should be present at all court appearances if possible. This is important for four key reasons. First, decisions are often made that are critical to the case and the client must be involved. Second, if the motion goes well it is important for the client to see that. Third, if things do not go well the client must be there so that there is no third-hand information and so that you can do damage control. Finally, it sends a poor message to the judge if your client is not there.
- Have your client keep a diary or journal to develop a case history as events unfold.
- Have a closing letter at the end of each case and or a final meeting to go through any remaining issues and make sure that all of your client’s concerns have been addressed.
- A well-informed client will be able to make more educated decisions throughout the divorce process. Always remember that the client must live with the results for many years – perhaps for the rest of their lives – so you want to help them make the best possible choices during the process.
Building Your Family Law Practice
Unlike other areas of the law, family law practice has few, if any, institutional clients. Thus, a family practice must “reinvent the wheel” every day: every time we finalize a divorce or other family law matter, we have to replace that client or case with a new one. The goal is to build a broad network for future referrals – and that requires satisfied clients. Remember that a satisfied client can help to build your practice while an unhappy client can do damage to your practice.
- Don’t forget that your clients are real people with real problems, and some may be scared to death about what the future holds. Listening to a client’s issues with empathy rather than a tunnel-vision focus on the facts has been shown to increase client satisfaction – and the likelihood of positive reviews and referrals.
- Work hard on every case and referrals will follow.
- Get or maintain a modern, professional website and hire a search engine optimization (SEO) expert to improve your rankings. A good website is useless if people cannot find it.
- Maintain a regular blog on your website and/or on a top-ranked divorce blog such as DivorceMag.com/blog.
- Write articles for or pitch story ideas to your local media. Establish yourself as their “go-to” expert for all family law and divorce-related stories.
- Network and find opportunities to market in areas that are underserved.
- Join a country club or other social organization and practice your “elevator speech” to let people know what you do in a succinct statement.
- Give seminars and lectures, and attend seminars and lectures. Keep up to date on state and federal laws pertaining to divorce.
- Network with other professionals who deal with clients in possible need of a divorce. Possible resources can include accountants, therapists, financial planners, realtors and even people who run your local fitness club.
A Team Approach to Family Law
A “divorce team” might consist of secretaries, paralegals, as well as attorneys with complementary expertise. But you should consider including a therapist or divorce coach as well for three reasons:
- A therapist can determine if a marriage can be saved.
- If the marriage cannot be salvaged, a therapist or coach can help the client work through their emotions so that they are able to recognize a good settlement proposal when they see it.
- A therapist or coach can help a client move on from their divorce and provide a support system going forward.
Cultivate relationships with financial professionals – forensic accountants, valuators, etc. – to call on for high-stakes or financially complex cases.
Include other experts on your team as needed; do not hesitate to seek outside advice early and often, so that there is still plenty of time to prepare for all contingencies.
Best Practices for Family Lawyers: Problem-Solving vs. Scorched-Earth Family Law Attorneys
More and more attorneys litigate with a “take no prisoners” attitude; they will shade the truth to get an unfair advantage for their clients. But in a family law practice, more so than other practices, reputation is critical. For this reason, in family law, a scorched earth tactic is wrong and harmful. Thoughtful representation is a better approach. For example, you should remind your clients that, as parents, they will have an ongoing relationship with their ex-spouse regardless of how the case resolves. Having a working relationship with their ex-spouse will be necessary to raise their children long after the dust has settled.
In the long run, being a problem-solving attorney rather than one who antagonizes the other side will make you and your family law practice more successful.
A senior partner at Lippitt O’Keefe Gornbein, Henry Gornbein is a Fellow of the American Academy of Matrimonial Lawyers and past-president of the AAML’s Michigan chapter. He is a monthly columnist for the Michigan Family Law Journal, he has written numerous articles for Law Practice Magazine and Divorce Magazine, and he is producer and host of the award-winning cable television show “Practical Law”. He is certified as a mediator as well as in collaborative law. www.lippittokeefe.com
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