With almost each new client call I get, whether for a divorce or child custody case, one of the first questions I ask, presuming there is an existing case is, “who is the other attorney?” One might think this is a silly question that doesn’t matter. To the contrary, it can make all the difference in the world. The whole tenor or tone of a family law case can be determined by who the opposing counsel is.
In conjunction with the demeanor of a case also comes cost. Potential clients often ask, “how much will the overall cost be?” I generally respond that the overall cost is largely dictated by how much of a fight there will be. One of the key factors can be the attorney on the side.
The law is presumably the law. Judges are, in essence, judges. However, most family law attorneys (meaning those who solely focus on family law), become attuned to how our judges will likely rule on various issues. When you get two, what I will call “reasonable,” attorneys on a case, with the experience and insight into the specific court, cases can often be settled without much of a battle. The attorneys can generally assess the ins and outs of a case relatively easily. Once the finanical disclosures are exchanged, the division of property, alimony, and child support become fairly clear. There may still be minor skirmishes over issues, but in the end the case is generally resolved without a court hearing. This is because the attorneys more or less know the outcome. As such, we advise our clients accordingly, though we acknowledge and honor their rights to make the final decisions as to settlement or proceeding to litigation. In these instances, both time and money can be saved for the client. To clarify, a good settlement means settling to something that is as good, or better, than what the attorney believes is attainable through a hearing in front of the judge.
However, regardless of facts and outcomes in a divorce or custody case being readily apparent, there are cases in which the attorney dynamic can affect cost, the path the case takes, etc. Without naming any names, there are attorneys in the family law circle who have the reputation of making cases ugly. There are attorneys who will counsel or encourage their clients to battle over seemingly every issue, even those that are black and white. There are attorneys who will send a nasty letter or e-mail seemingly every day. There are attorneys who will do wasteful things like issue discovery or set depositions just as a matter of course. Some might chalk up these styles of practicing law to being “zealous advocate.” In many instances, I chalk this up to being wasteful and dismissive of the notions of efficiency and client costs.
Familiarity between attorneys is also another factor in terms of cost and how a case will go. Over the years, I have come to know many firms or attorneys whom I would classify as good, reasonable attorneys. When I get a case against one of these attorneys, I know that there is an extremely high likelihood that the case will settle. This does not mean that from time to time a courtroom battle will arise against one of these attorneys. We all have our jobs to do and the outcome for our clients matters much more than the relationship between attorneys. People will sometimes come to us saying it seemed like their old attorney was friends with the other side. That can happen. Often it is a good thing. When there is a mutual familiarity among attorneys, you know what you are going to get. You know, just as the other attorney does, where the fight will be and the position to take based upon such, including when preparing for court.
Negative familiarity can also be good, though more costly. Over the years, I have come to determine that the best way to deal with the overly litigious attorneys in terms of keeping client cost down, is to essentially ignore them. I don’t mean “ignore them” in the sense of ignoring the case. I mean that I will generally be judicious and guarded with interactions. I will know that settlement talks are likely a hollow gesture and will not spend too much time and client money on a case I KNOW will be going to a contested hearing. I will disengage in the sense of only dealing with the flow of nasty e-mails or phone calls when truly necessary. I will also anticipate the overtures of, “your client is A,B,C. We’re going to win, and here’s why.” This is generally puffing. I was in court a few weeks ago against an attorney on the tip-top of my list. Despite statements regarding my client’s case, threats of attorney fees, etc., we stayed the course, went to hearing, and prevailed. Ultimately, we got the court result I believed, more or less, that we would. Sadly, in this instance, my client spent more money than necessary solely based on the other attorney’s style. Had an attorney not hell bent on fighting all issues been on the otherside, we could have gained the same outcome without all the expense and acrimony.
Another instance in which attorney personality comes into play relates to settlement. At Plog & Stein, we pride ourselves on giving clients an honest and accurate analysis of the facts of his or her case. Anyone can tell a client what he or she wants to hear. We prefer the truth as we see it, including an assessment of probable outcomes. Though we advise clients, we let them make the decisions. It is not uncommon for a client, whether in a divorce or custody case, to say, midstream, “my wife and I have been talking and we have decided to settle issue “x” this way.” If the agreement is reasonable, which both attorneys should know, that matter should be put to rest via the drafting of an agreement on the issue. Unfortunately, I see instances or cases in which I know the other attorney will never let that agreement happen, meaning he or she will advise the client that it is not a good deal. To this day, I have to wonder why? Of course, this then leads to litigation on an issue that was all but resolved. We, as attorneys, have a duty to advise our clients appropriately. There is a fine line between doing so and encouraging them to fight over a resolved issue. In many instances, the outcome in court will be the same as that which the parties had wanted to agree to. In these instances, I cringe at the thought of the time and money spent to get exactly where we were before, weeks or months ago. Some things just make no sense.
From my perspective, the primary issue related to attorney demeanor is cost. Each phone call costs. Each letter or e-mail costs. Clients are paying for everything the attorney does. When the other side brings acrimony and an overly litigious style to the table, I truly feel for the clients. I hate to see client money wasted fighting over issues that should be resolved based on the law, not emotion or grasping at straws. There are battles that legitimately must be fought. Parties don’t always agree on issues, such as visitation. In those instances, court is the only option. However, most matters can be resolved between the parties and the attorneys. Better to save that money for the kids’ college funds than to pay the attorneys to fight over ridiculous issues. Unfortunately, this is not always in an attorney’s control.
It is my belief that our judges become familiar with attorneys as well. It is my belief that they can readily separate the diligent, thoughtful attorney from the overzealous, unreasonable one. Attorneys gain reputations, whether as to style, credibility, or otherwise. In the end, I like to think the judges see what I see. I also like to believe that despite an ugly, expensive case, the outcome will utlimately be just. The question becomes how much you have to spend to get there? The demeanor and personality of opposing counsel will play a part. Unfortunately, it’s a coin flip in terms of whom I will get on the other side. Though we are ready to fight to ensure just outcomes for our clients, the hope is always that the attorney on the other side will be reasonable. The ironic thing is that the bark of the attorney and the bit do not match, meaning those who make cases ugly and expensive are not generally getting better results for their clients. Personality style of attorney should not be a factor in a divorce, custody, or child support case. Unfortunately, it is.
