Saturday, July 28, 2018
The questions, "How Much Will it Cost," is the question most lawyers here in the Trenches dread. The answer is usually, "It depends." We know that's not what clients want to hear. Heck, when I was a client, it wasn't what I wanted to hear. It's also an unsatisfying answer for those of us here in the Trenches. Let's do a deep dive.
You know that I was not only one who toils here in the Trenches, but I was also a client. I hated being a client. I hated my first attorney. Why? Two reasons. First, that attorney didn't listen to me. I knew my ex-husband better than anyone, and I knew how he would conduct himself. My attorney wouldn't change the way they did things to match it. They also gave me legal advice that I knew was wrong, (did I mention I'm a family law attorney?), but that's another story for another day. I despised being treated as though I had nothing useful to add to the conversation and that my opinion didn't matter. Second, I hated not knowing how much money I would have to pay my attorney each month. If I were not a professional here in the Trenches, I wouldn't have known if they were over-charging me or if they were charging me for unnecessary things. I knew, however, that I hated opening that monthly envelope with my bill and not knowing how much money I would have to gather to pay them. I hated that it seemed that they were more interested in billing me that in helping me. I hated that they were being rewarded for taking more time.
When I got to my second (and last) attorney, I had a very different experience. First, I was treated as someone with helpful information to share. Second, this attorney capped my bill. He didn't quote me a flat fee, but he did tell me that once my bill reached a certain amount, that was it (Of course my bill reached that amount.). I have to tell you, that knowledge made me relax because I knew how much money I needed in order to complete my case. I could plan ahead. I could budget for it. I could concentrate on worrying about the case itself instead of also fretting about paying my lawyer.
Here's the difference between me as a client and my clients. I know how much legal representation can cost. I know how expensive even a run of the mill contested case can be. I chair the fee dispute committee of my local bar association. I am the ultimate educated consumer of legal services. Most of my clients are not. Most of my clients have no clue as to how much legal representation can or should cost. Most of my clients are uninformed about the process. Most of my clients are too scared/angry/overwrought to think clearly, just as I was (which is why I stayed with the wrong attorney a billing cycle too long). That means in any discussion about process or about fees, my clients are lost. They have no benchmark - for anything. It's no good telling them to ask lots of questions because they don't know what questions to ask and they don't know what's a good answer. They don't know what's a reasonable fee. It's sort of like when my grandpa used to go into the grocery store. He never did the grocery shopping, so every time he entered a store, he was shocked at how high the prices were because he had no frame of reference. Everything was way too expensive for him. Everything is far more expensive than a client thinks it's going to be when they set out to hire a lawyer.
I struggle with how to set a fee that's fair. Right now, like almost every other lawyer I know, I charge by the hour. It upsets me to do it. Why? Because it's not time I'm selling. I am selling my expertise, my knowledge, and advice. I'm giving the clients the benefit of my legal knowledge and my 30 years of experience. The question should not be how long will it take me to resolve your issue, but how much it is worth to you to have it resolved in a way that is acceptable to you. Unfortunately, the only way that conversation can be productive is if the client has a realistic view of the value of legal services, and most ordinary consumers do not. They're like my grandpa in the grocery store. So, rather than have an in-depth conversation on value, especially with overwrought people, most lawyers default to the hourly rate. It's just easier - for all of us. Or is it? More to come. Here in the Trenches.
Saturday, July 21, 2018
What is the most frightening thing we do here in the Trenches? Is it going to trial? Nope. Is it taking depositions? Nope Is it talking to a client after a bad result in trial? Nope. The most frightening thing we do here in the Trenches is none of the above; it's....settling the case. Settling the case? Are you kidding me? What could be so scary about that? I'm so glad you asked.
If you are the attorney, settling a case, especially a case that is about to go to trial, is petrifying. We always wonder if we could have gotten our client more or better. We wrack our brains to make sure we didn't leave something on the table. We wonder if the other side is laughing at us because we left out something elementary. For me, I add and re-add every possible division of assets to make sure what I negotiated for my client is acceptable. I run every possible scenario of custody through my mind. I go through the alimony number with my client's budget. I think back to everything I've learned about the other side to see if we leveraged everything we could. For my own client, I think about what they have told me about their needs. Does the settlement meet their needs? Will they be able to move forward with their lives? They won't end up destitute, will they?
Sometimes a settlement is a good thing because it's a good result for our client. Sometimes a settlement is a good thing because it made lemonade out of lemons. Sometimes a settlement is just a way to move on. As the attorney, you need to be able to assess which of those types of settlements is possible, let alone preferable. Sometimes, a win is just not losing. That latter type of settlement is particularly hard, because we always want the best for our clients, even when they've behaved badly, and we know a settlement is the only way to make that happen when they've behaved badly.
Clients have the same worries as us. They simply get to add to that equation the emotions of the marriage being over, the conflict being resolved and the fear of being victimized by someone who knows them so well, loved them before, but now likes them so little. Settlements are frightening.
Let's take a minute and talk through my top five reasons why, even with the fear, I like settlements, especially relatively early settlements:
1. They create certainty. You know what is going to happen and how because you crafted it. You don't have to worry that some stranger in a black robe is going to view your reality and interpret it differently. Settlements take away the risk factor inherent in having a third party make your decisions.
2. You retain control. You make the decisions that affect your life, not someone else.
3. You have time on your side. You have time to talk to your lawyer. You have time to talk to your accountant. You have time to process with your therapist. You have time to think about what you are going to do BEFORE you do it. You have time to include all the details that will make or break a successful agreement. When you're at trial, or on the eve of trial, pressure makes it hard to process and to weigh your options, let alone ensure that all the details are addressed.
4. You don't go to trial. This seems obvious, but what people tend to forget about going to trial is the emotional cost. The pressure of the uncertainty is stressful. Having to sit in a courtroom quietly while attorneys and witnesses dismantle your life and view all of your actions under a microscope is a special kind of hell. Did I mention you have to sit quietly while this happens? Listening to someone who may be your co-parent for many years trash you on the stand, and you do the same to them, and then be told to go out and co-parent successfully is mind-boggling.
5. You save money. Big time. Once I start to gear up for trial, your legal fees skyrocket. It is fair to say that no matter what you have paid me up to trial preparation, you will pay me easily double or triple that to go to trial. When I assess a settlement proposal, I always remind the client about the cost of going to trial, as that is money that will no longer be available to them to support their children, buy a house or fund their retirement. That money, should we go to trial, will do all those things for me. It's a rare, very angry or very mentally ill person who would rather pay me than keep it in the family, even if it means half of those funds go to their spouse. The thought that the court will order the other party to pay attorney's fees is a lovely thought, but a rare occurrence.
Not every case can be settled. It takes two people to make a mutually acceptable agreement. Even if your spouse is incapable of settlement, however, the exercise of figuring out what would be acceptable to you is important. You need to be able to articulate what you want to the judge when you go to trial, and to do that, you need to dig down and decide what matters to you as you move forward. Nothing we do in the Trenches is ever wasted if it moves you closer to having a future life which meets your needs. Settlement negotiations do that, even when they don't result in an agreement. Even if the thought of settling is scary. Here in the Trenches.
Sunday, July 15, 2018
I love planning Disney vacations for my family. Next to running, it is probably my favorite hobby. I listen to Disney vacation planning podcasts. I belong to a number of Disney Facebook groups. I take my Disney planning seriously. What the heck does this have to do with the Trenches? Plenty, as it turns out.
Interesting thing about planning a Disney vacation is that even though it’s just one destination, there are hundreds of vacations to plan at Disney. There are three levels of resorts to stay at: deluxe, moderate and budget, and there are numerous resorts in each category. There are signature restaurants, table service restaurants and quick service restaurants. There are 4 theme parks and 2 water parks. You can go to the parks early in the morning, or late in the afternoon, If you don’t want to go to the parks, you can stay by the pool, go fishing, boating, horseback riding, play golf, play tennis, shop, go to the spa. There are so many combinations, but it is all a Disney vacation. Whether it’s your Disney vacation depends on what you and your family want to do.
Here in the Trenches, everybody is getting divorced. That’s the same, no matter what. Just like a Disney vacation, no two divorces are the same. Some people work out their own divorce details between just the two of them. Some of those folks get legal advice and some don’t (I personally recommend ALWAYS getting advice before signing anything, and not because I’m a lawyer, but because once you sign it, it’s over and you can’t change it). Some people need the help of a mediator, and use a lawyer for legal advice (see a theme here?). Some people need their lawyers at the mediation with them. Some people use a child therapist to help them with parenting issues and a financial professional to help them with financial issues. Some people divorce using the collaborative process with a full team; some use the collaborative process with a partial team; some use the collaborative process with no team. Some people resolve their divorce using their lawyers to negotiate; my goodness, there are so many ways to do that, meetings, letters, draft agreements, phone calls. Then, there’s litigation and the entire court process. Within each method, there are a ton of permutations. Maybe there’s a formal sharing of information, and maybe it’s more informal. How you get divorced depends on you and your spouse.
Here’s the difference between getting a divorce and going to Disney, besides the obvious. There are tons of resources that talk about how to plan a Disney vacation. The podcasts and the Facebook pages have travel agents as well as regular folks trying to plan vacations. There are pages for people who run Disney, who are Disney foodies, who are Disney novices, who are Disney addicts. Everyone shares information of what worked for them, what didn’t work and why. They talk about what they would do differently and what they would do the same. There’s nothing like that for the divorce process. Maybe there should be. Too bad ethics rules probably preclude lawyer participation. Here in the Trenches.