MANAGING COMMUNICATION WITH YOUR LAWYER
Earlier today I read an article in an on-line news journal about clients who spend inordinate time on the phone with their lawyers and the consequence for both lawyer and client. It’s a great topic because most humans don’t employ lawyers every day and those who do are experienced consumers who avoid mixing business with pleasure when the one party on the line charges hundreds of dollars an hour.
For family law clients it’s especially hard. As Samuel Johnson wrote long, long ago “To be happy at home is the ultimate result of all ambition.” Thus, when homelife takes an unfortunate turn, people are often bewildered; especially when it is suggested they were or are not model spouses or parents. Clients often turn to their lawyers for validation that they are doing the right thing or that they aren’t the perp, but the victim.
Be careful here. Your attorney is not your therapist. Moreover, especially early in the relationship, it is not easy for lawyers to tell their clients that that they did something foolish or that the result they want is not likely or practical. You want your lawyer to support your cause, but hopefully you also want that lawyer to be candid with you about what to expect and what weaknesses the lawyer sees in your case. Not one moment in law school is devoted to moderating or managing client expectations, yet it is probably one of the most important skills an attorney can develop. Clients want to tell us what they expect to happen in judicial proceedings. Rarely, do they ask us to handicap the range and likelihood of various judicial rulings. Yet, that’s probably the most valuable information you can have when engaging an attorney to represent you.
It may seem counterintuitive, but cost management is something that both attorney and client should strive for. Rare is the client who concludes that he/she didn’t spend enough on the lawyer. But many clients invest inefficiently, pursuing positions that are either untenable or at least unlikely. We recently published an article about how the fight to get those extra overnights with the children often produces a big bill for a small gain in custodial time. Another dark alley of legal expense is trying to prove that your spouse with the law or engineering degree should be making $100,000+ when he or she hasn’t been employed in those fields for a decade or more.
So, how about some practical advice? First, create a “notebook” of discussions with your lawyer. Rather than phoning your lawyer hourly with “another quick question” accumulate the questions and pause to think about what your expectations are. There are times when you must have an instant answer. Alas, instant advice is not deliberative advice and the latter is far more valuable while both come with pretty much the same cost. If your inquiry is based on a document, whether a bank statement or a report card, make certain that document is in the attorneys’ hand before you call.
Realize that while your family law matter is your top priority, a lawyer doing this work has many families who all expect to be top priority- so there is a lot of juggling done unless you can afford an attorney who agrees to handle only your case and forsake all others.
You probably should clarify that you want news about your case as it comes in even if the lawyer isn’t instantly there to pass it along. When your custody or support ruling comes in the electronic or US mail, you want that info as soon as the lawyer’s office can send it- even if the lawyer is not there to talk about it instantly. One of the greatest frustrations any client can endure is having the estranged or former spouse call and ask “So did you get the ruling?” where the ruling is sitting on your lawyer’s desk because she is in a hearing or sick at home. But realize that if the 20 page custody evaluation or equitable distribution ruling comes in at 1pm on Tuesday, while you, the client, will instantly read it, your lawyer may not have. Any good lawyer reads these documents at least twice. The first time to understand what was said. The second time is to figure out what can be done to either change it or defend it or both. The first read is inevitably superficial. The second, analytical. Because this involves your family you want any information or analysis you can get. But a “considered” opinion is always better than a first impression and a first reading of any legal document is nothing more than an impression.
Perhaps the greatest frustration lawyers grapple with is the client who sends an email and instantly telephones to ascertain what the lawyer “thinks.” In many instances, the lawyer answers the phone before having read the email- annoying both the caller and the call recipient. If you have “hot” news, put it in an email and ask the attorney to call you the first chance he/she gets. Another pitfall are questions about what the opposing lawyer thinks of you. That lawyer may hate you. Perhaps he or she adores you. Their job is to represent their client in a credible way. They are typically engaged to oppose what you want and certainly they don’t gain credibility with their client by siding with you. Meanwhile, if you have a chance to observe your lawyer working with his or her legal adversary, be mindful of how the lawyers treat each other. There are times when lawyers have a “history” of prior combat that can get in the way of resolving your matter. Or, there may be times when you experience your lawyer as unduly aggressive in representing you. That may merit a discussion when you get a chance to speak alone with your counsel.
If you don’t like how your matter is going especially if you feel your lawyer isn’t listening to you, schedule an in person appointment before you wander off to a new attorney. Teaching any attorney about your family and your case is your investment. When you change counsel, you are jettisoning that investment and you will spend time and money bringing the new attorney up to speed.
Your family law matter is a big deal. It merits careful attention from both you and the counsel you select. As sociologist William Whyte once wrote: “The biggest problem with communication is the illusion that it has taken place.” Don’t fall prey to that illusion. The stakes are too high.
