Friday, December 29, 2006

To Hire an Attorney or not to Hire an Attorney (Part 2)

Part Two of Two Parts
For more related divorce information

It has been said that a person who represents themselves has a fool for a client. If this is true, is it also true that a person who hires an attorney has fool in charge of their life?

In other words, you’re damned if you do and damned if you don’t. Therefore, you need to know when, why and how to hire an attorney.

In California, if you appear in court and represent yourself it is called going In Pro Per, which literally means “In one’s own proper person.” Some states call representing yourself Pro Se, which literally means “For one’s own behalf, in person.” No matter what your state may call it, it means you are representing yourself in court. Many people have handled their own family court case, with just a little help in doing the required legal paperwork.

If it appears your case will be routine or normal (meaning no known or expected surprises), and if there does not appear to be a lot of areas of serious disagreement between you and the other side, and if you are comfortable speaking in front of people, then a paralegal or support group can help you save a lot of money by assisting you in representing yourself.

What kind of people represent themselves?

Most people represent themselves because they outright cannot afford a family law attorney. Some people represent themselves because they have been represented by an attorneys in the past and they now believe they can represent their own interests as well, if not better, than their previous attorneys. And there are those who represent themselves because they feel that even if they lose, they will have won by not having to pay the high costs of a family law attorney (some people believe just the fact of not paying an attorney is a “win”).

Reality is that many cases require a family law attorney. An example of a divorce case requiring an attorney would be a case where there is a major confrontation over issues of custody and visitation and/or where there are serious differences over distribution of the community property. These kind of cases mandate an attorney and it would be prudent for you to retain the best attorney you can afford (of course there are those cases wherein you absolutely can not get the money together to hire an attorney. In those cases it is obviously better to represent yourself as best you can, rather than allow a default to be entered against you. In these situations, representing yourself will at least let you know for the rest of your life that you did all you could do).

However, whether or not you hire an attorney, it remains your responsibility to keep your case organized, to keep yourself updated on all happenings in your case, and to continually stay informed as to all facts

The following two sections are presented solely to assist you in determining whether or not you will want to attempt to represent yourself and, if you choose to involve an attorney, some guidelines to assist you in determining which attorney is best for you. You may want to check your state and local rules, regulations and procedures to discover whether the following notions are valid in your particular area.

If Hiring a family law attorney

1. One of the best ways to choose an attorney is to either get a recommendation from your local father’s rights organization or check with family, friends and co-workers. Hiring a family law attorney is just the opposite of hiring a criminal attorney. If hiring a criminal attorney, you want the best legal mind you can afford. Family law is just the opposite. Family law is almost totally subjective feelings and biases. In family law you are hiring a personality, someone you can get along with and who is passionate about your case and your goals.

2. Nothing is worse than a personality clash with the attorney you hired to protect you. This is your and your children’s future. During the initial consultation you will need to make a sound intelligent decision based heavily on whether or not you feel and believe you can work as a team member with the attorney. Remember, your attorney is in the driver’s seat and you need to feel very comfortable with them at the controls of your future. Therefore, when interviewing a family law attorney, you may want to consider some of the following Things to look for in an attorney... and What to avoid when hiring an attorney....

A. Things to look for in a family law attorney...

1) Is the attorney friendly, passionate and non-intimidating;

2) Will the attorney return your phone calls within a “reasonable” time;

3) Does the attorneys’ recommendations make common sense;

4) What does the attorney charge per hour and will the attorney bill you
monthly so you can easily see on a regular basis what the attorney is
costing you;

5) Are credit card payments accepted;

6) How strongly does the family law attorney support alternatives to traditional
litigation,such as outside mediation or collaborative divorce;

7) How much experience does the attorney have in family law;

8) Does the attorney specialize in family law. Just as you would not want a
general doctor to perform open-heart surgery on you, you do not want a
general attorney performing your family law case;

9) Make an agreement with your attorney in writing on your mutually agreeable
and attainable goals. To avoid misunderstandings always put both large and
small requests in writing and keep a copy for yourself (again, stay

10) Get in touch and stay in touch with a local support organization for
support, encouragement and to ensure your case is proceeding according to
your wishes; and

11) Ensure you will be given a copy of any and all documents filed on your
behalf or served on your attorney relevant to your case.

B. What to avoid when hiring a family law attorney...

1) No matter what, avoid a “divorce mill” type of operation where a group of
people are grinding out paperwork one after another and an attorney just
picks up the paperwork and goes to court. This is not an assembly line
operation, this is your life, your future and your future relationship with
your kids. This is serious business and you will want to treat it that way;

2) Avoid any and all attorneys who tell you their retainer is “non-refundable;”

3) Be suspicious and avoid any attorney who appears overly aggressive and any
attorney who “guarantees” you a certain order. Family law is an extremely
subjective area of law and no one can possibly guarantee anything;

4) Do not share an attorney with the other parent. If your case requires an
attorney, then get your own attorney to protect you and your children’s
legal rights;

5) Whatever it takes, avoid financial problems between you and your attorney.
If for any reason you are unable to honor your financial agreement with your
attorney, immediately request a meeting and work out a new agreement. You
need your attorney playing attorney, not banker;

6) Avoid letting your attorney talk you into giving up something which you
feel is important, just so the attorney can expedite the case. Be
realistic and reasonable, not foolish. Remember, you may have to live with
the results for a long time, a little extra time now can save you a lot of
heartache later. Read all legal papers you are asked to sign, understand
them clearly and completely before signing and always keep a copy for
yourself. If you find unclear language or something that is subject to any
kind of interpretation, ask your attorney to have it rewritten so it is
explicitly clear;

7) If your attorney states you do not need to be present at a hearing, make
sure you find out why you are not needed. If in doubt, have your attorney
put it in writing that you do not need attend and that he/she will make no
agreements without your consent. However, the general rule of thumb is that
you need to attend ALL court proceedings. This is you and your children’s
future and you need to be there, you need and must know what is going on in
your case;

8) After each meeting with your attorney (whether in person or over the phone)
write down what was said, accomplished, promised or planned. Mail a copy of
your written understanding of the meeting to your attorney to memorialize
that the meeting took place and what was accomplished. This will assist
your attorney in keeping on track and will remind the attorney of what was

9) Avoid telling the attorney how much money you have or how much you are
willing to spend on your case. The attorney’s focus should be about your
case, not how much money you have available to give him/her. If the
attorney talks too much about money - leave the office. An attorney
whose main focus is the money is only feeling you out to see
how much they can get from you up front - how much they can
get for a retainer;

10) Make copies of all important papers to give to your attorney. Avoid giving
originals to your attorney unless absolutely necessary. If absolutely
necessary, ensure you have a copy and assurances the originals will be
returned to you upon completion of your case (unless used as Exhibits
whereupon the originals may stay in the court file);

11) Avoid calling the attorney for every little thing that happens, it will get
very expensive. Attorneys charge by the hour, with every 6 minutes being
1/10th of an hour (Example: If your attorney charges $200 per hour
and you talk to them for 10 minutes; that call will cost you
$40). Many times it may be better to contact your father’s rights
organization first as they can usually answer many (if not most) of your
questions just based on their experience with other fathers over the years.
This will reduce the number of questions and the length of time with your
attorney, resulting in lower attorney fees for you;

12) Avoid keeping an attorney whom you feel is not representing your interests
or your children’s interests fairly or properly. In other words, do not be
afraid to fire your attorney; and

13) Your attorney was hired to do a job about which you know very little. You
should be able to contact your attorney and expect an understandable answer
within a reasonable period of time. Avoid keeping an attorney who will not
return your calls within a reasonable time.

By: Marvin Chapman

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