Trial experience, while not always present, is a must: family lawyer
This article is part of a series addressing popular topics and questions that clients and the public may have about the legal profession.
Separation and divorce can be among the heaviest ordeals a person will experience in life and choosing the right legal representation could limit the money, time, and headache the process will ultimately cost.
Family law is a deep and complex field and available lawyers will vary in experience, skill, and specialty.
In an initial interview, the prospective client should first ask the lawyer if they want to hear the essential facts of the case, says Mark Perry, founder and partner at Westside Family Law, in Vancouver.
“Virtually everything in family law is contextual,” he says. “It's all dependent on the circumstances.” If a lawyer were to respond in the negative, it is “not a good sign that that lawyer appreciates the essential point, which is that everything should be subjectively assessed.”
Once they delineate the essential facts, the client should ask about the state of the law in respect of those facts, and how the law would treat custody, child support, spousal support, and division of family property in these specific circumstances, says Perry.
The third question should be what the lawyer proposes as a process toward resolution. “There are, effectively, two ways for a dispute to be resolved. One is an agreement, or in this context, a separation agreement. The other is a decision by the court.”
If the parties are willing to pursue an agreement without a judge, there are several available alternatives. They include mediation, collaborative family law, med-arbitration, arbitration and a straightforward negotiation.
The client should ask which process the lawyer recommends and follow that question up with “why?” says Perry.
But there are issues with no realistic middle-ground which will require a court’s involvement. That is why another essential question a client should ask a potential lawyer is whether they have trial experience, he says.
Increasingly, family lawyers restrict themselves to alternative dispute resolution (mediation, negotiation, collaborative family law, etc.) Perry says he and his colleagues are “fully supportive” of alternative dispute resolution but adds that having a lawyer who is willing to go to court allows them to more effectively pressure the opposing side to make a deal. If he has a file with a lawyer who has a restricted practice, the first thing Perry does is try to set the matter down for a trial. This may cause the lawyer to advise their client to reel-in their claims and soften their position in negotiation, he says.
Establishing the best mode of ongoing communication is another essential question a client should have for their lawyer, according to an article by Divorcenet. The client should ask how long the lawyer will take to return phone calls, and how they can be reached in an emergency.
Lawyer and client should also address the appropriate communication between the client and their spouse, says Perry. All communication – whether email, text, or any type of social media – must be polite and respectful. Inappropriate communication will fuel animosity and distrust, lead to anger and frustration and undermine what could otherwise be a reasonable settlement.
Any negative correspondence can also re-emerge as evidence, he says.
“That information will always end up in front of the court, attached to an affidavit and supporting an argument or purporting to support an argument that one of the parties is less able to parent children or is uncooperative.”
Not only will a separation or divorce be a life-changing experience, it might also be costly. The Divorcenet article recommends clients be thorough when asking about fees. Aside from asking about a retainer and the hourly rate, the client should also find out whether other associates or paralegals will assist on their file, and at what rates these colleagues will provide their services.
The article also recommends asking for a ballpark of the divorce’s total cost, and adds that, with so many variables it will be difficult for the lawyer to answer. “However, the way attorneys answer this question may help you size them up,” said the article. “An honest attorney will often answer that it is difficult to estimate the costs in advance. An attorney that gives you an unrealistically low amount may just be trying to get your business.”
While he is asked the question regularly, Perry says he is loath to provide quotes or estimates about how much time is necessary to resolve the file.
“The essential quality of the issue is there's a dispute between two people. And frankly, two people who formally loved each other. Two people who formally perceived themselves as being together for the rest of their lives, and are no longer in that frame of mind.”
“Providing a quote is just not something I would ever do. Providing an estimate has to have prefacing that it's a rough estimate.”
Where the parties have already reached a reasonable understanding and their remaining issues are straightforward, Perry is more able to give an estimate for how much the necessary documentation will cost to prepare.