Making Legal Decisions

Be aware before you make legal decisions...

Unfairly so, abused women are often placed into the position of making life influencing legal decisions while they are still adversely affected by the abuse they have survived.

Please, please... be aware that the decisions you make now... will look entirely different to you in a few months or a year... when you have begun to recover. Do your best to make decisions which you will be able to live with later. Do your absolute best to look after your needs now. Don't let yourself be abused yet one more time in any way by anyone.

Obviously, choosing a lawyer is an extremely difficult decision to make if you have not had any previous experience. It is neither wise nor comforting to peruse the yellow page directory in the hopes you pick a "good" one. Review the information on this page... and you will be able to make intelligent choices concerning hiring a good lawyer, lawyer fees, the legal system and you will be able to keep your "emotional" head should your divorce should turn into a "battle."

Here is a short list of people and organizations you may want to approach for help in this area:

Trusted and experienced friends
Experienced family members
Crisis Centers and Shelters
Local Abused Women groups
Police Victim Support groups
Legal Advocate Services
Local library legal resources
Your local Chamber of Commerce

Many lawyers offer a free first time consultation... take advantage of this. Make several appointments and go in talk with them. Be honest about your situation and your needs.

The Lawyer Game

[ The following is from the BetterDivorce website. Thank you for making this information available. ]

Listening to Your Instincts:

Lawyers who handle divorces come in all shapes and sizes. There are those rare, kind souls who live to help their clients expectations by providing psychological and legal support during a stressful period in their lives. But then there are those who see divorce as a relatively simple, mechanical process that generates income; those who punish and bully their clients' spouses because of their own unresolved personal problems; and those who, unable to succeed in another area of the law not so fraught with negative emotion, are stuck doing divorces for a living.

Lawyers, like other people, have their own individual personalities and problems. Nothing distinguishes a lawyer from the rest of humanity except the act of having gone to law school and passing the bar exam. Like any other person, a lawyer can be disorganized, careless, irresponsible, overcommitted, vengeful, greedy, addicted, or otherwise undesirable. Like any other person, a lawyer can have ideological perceptions totally different from your own. No state licensing board has screened out undesirable or incompatible lawyers. This is your job, and you must do it while enduring the pain of divorce. It won't be easy. It will take guts. But by doing your homework, you should be able to make an educated choice about the lawyer who will play a very important role in how you will live the rest of your life.

After you have left the lawyer's office... consider these points:

Did the lawyer made eye contact with you, and if not, whether this bothers you.
Was the lawyer glib, dismissive, or callous?
Did he or she oversimplify the issues or make you feel your cause was hopeless?
Did you hear any words of encouragement, or did you only hear about how wonderful the lawyer considers him or herself?
Is the lawyer familiar with and empathetic to survivors of domestic abuse?

Factors such as these and your reactions to them are legitimate considerations when choosing an attorney. Do not overlook behaviors you find offensive and hope that they will go away. They won't.

The Top Ten Qualities to Look for in a Divorce Attorney

Once you have weeded out the undesirable lawyers, you can move into the next phase of selecting your lawyer. Using the information you have gathered, rate the remaining candidates on a scale of one to five in each of the following ten categories. Seriously consider the lawyer who scores the highest as your front-running candidate.

1] Will this lawyer act rather than react?

2] Will this lawyer control my case instead of letting the lawyer on the other side, or the judge, control things?

3] Is this lawyer astute and adept enough to use his or her knowledge to control the judge?

4] Does this lawyer have credibility with the judge and other lawyers?

5] Will this lawyer plan ahead by devising and implementing a long-range strategy for success - including contingency plans?

6] Will this lawyer treat me with respect, care about how I feel, and help me through this process?

7] Will this lawyer return my phone calls promptly?

8] Will this lawyer refuse to be intimidated by anyone, including judges and other lawyers?

9] Will this lawyer be cost-conscious and not spend my money without a compelling reason?

10] Will this lawyer be a zealous champion of my interests?

Hiring A Lawyer

Reading the Contract

If the lawyer you're considering hiring didn't provide you with a copy of his or her standard contract at your interview, you should ask for one now. This document, commonly referred to as a "fee agreement" or "retainer agreement," will spell out the terms of your relationship with your lawyer. It should describe how you will be charged, what you will be charged for, what the billing rates will be, what the lawyer proposes to do, and what the lawyer expects you to do. If the lawyer anticipates billing you for things other than his or her time-such as postage, photocopying, computerized legal research, expert witnesses, detectives, word processing, travel expenses, and so on-these should be spelled out in the fee agreement. Some lawyers' fee agreements are much more detailed than others, and the level of detail in a lawyer's fee agreement does not necessarily correlate with how well a lawyer will handle a case.

If a lawyer has no fee agreement to show you, a red flag should go up. Many jurisdictions require lawyers to have written fee agreements with clients, but even if your jurisdiction does not, it is still necessary for you to understand your and your lawyer's rights and obligations. These should be spelled out in writing at the beginning of your relationship so neither client nor lawyer can claim a misunderstanding later.

An attorney should routinely supply a written fee agreement at the initial interview. If a lawyer does not provide one, you should insist on it. Not putting the fee agreement in writing is almost certain to create misunderstandings that will eventually erode what could have been a good lawyer client relationship.

Once you review the fee agreement, you may wonder whether you can find a lawyer who will charge you a flat fee or a contingent fee instead of billing you by the hour. A lawyer will not usually quote a flat fee for a contested divorce because there is no way to anticipate how complicated such a case will become. If your divorce is not contested, you and your spouse may be able to find lawyers to handle it for a flat fee. If a lawyer quotes you a flat fee and you think your spouse will contest the divorce, make sure you have a clear understanding-in writing-about what is and is not covered by the flat fee.

A contingent fee arrangement provides that the lawyer does not get paid unless the client recovers money, in which case the lawyer gets a portion of it. Contingent fees are common in cases where an injured client is unable to pay a lawyer but a relatively large recovery is anticipated. Generally speaking, contingent fee arrangements are prohibited in divorce cases because lawyers working on a contingent fee basis would not be paid if their clients reconciled. Such lawyers might therefore be tempted to discourage a reconciliation even if it was in their clients' best interests. As a result, courts and legislatures generally do not allow lawyers to provide services to divorce clients on a contingent fee basis.

If you have any questions about what the contract means, ask the lawyer. Do not sign an agreement you do not understand. If you have a problem with specific provisions in the contract, ask the lawyer if they can be changed. Many times they can be. If, however, a lawyer says that something must be in the contract but he or she won't hold you to it, beware. Such an attorney may not be ethical. Aside from treating clients poorly, a lawyer who is known to be unethical may also have a difficult time gaining trust or cooperation from adversaries, which could result in your case being more complicated and expensive.

Your first opportunity to find out if a lawyer you are considering hiring might be unethical will be in the initial interview, when you discuss the terms of the fee agreement and representation. If a lawyer seems shifty, inconsistent, glib, unwilling to answer your questions directly, or otherwise untrustworthy, it is a safe bet that other attorneys will perceive him or her that way, too. You are probably better off hiring someone else.

Understanding the Financial Terms

Be sure you understand the financial terms a lawyer is offering you. It comes as a shock to many legal customers when they learn that they are billed by the minute for talking on the phone to their lawyer and for their lawyer's talking on the phone to the other side's lawyer. Billing in this manner is the norm. It is how lawyers earn a living. Think of it as being similar to a store's inventory. Just as a store does not give away merchandise, lawyers do not give away their time. Some attorneys bill by the precise amount of time spent, while others bill in fifteen or twenty minute increments. Even if your lawyer spends three minutes reading a note you sent him, he may bill you for his fifteen-minute minimum. If a fee agreement does not address the issue of increments, ask the attorney about it and consider adding language to the agreement to cover this point. Treat the fee agreement the lawyer proposes as a starting point, not a final document. If it contains things you don't like or is missing things that are important to you, talk to the lawyer about making the appropriate additions and deletions before you sign it.

You should also find out what you will be charged for in addition to the lawyer's time. Will you be charged for postage, photocopies, long-distance telephone calls, faxes, expert witness fees, detective fees, supplies, travel expenses, courier fees, computerized legal research, or anything else extra? Remember, lawyers routinely charge for these extras, and these costs can mount up quickly. For example, some lawyers charge twenty-five cents for each photocopy they make or five dollars for each fax they send or receive. These extras are typically itemized in the fee agreement. If they are not, find out what each charge will be, and ask the lawyer to estimate how much they will cost you each month so that you can be prepared for the bill when it arrives. A lawyer will not be able to quote you an exact figure because future expenses are impossible to predict and depend to a large extent on how the other side conducts its case. The lawyer should, however, be able to give you a rough estimate of a range of monthly expenses you should expect to incur.

If a particular charge seems excessive (the per-page rate for photocopies, for example), discuss it with the attorney. Perhaps an adjustment can be made. If not, at least you will have learned of the issue ahead of time and can choose a different lawyer if the problem is significant enough.

If you hire this lawyer, will other people in the office, such as paralegals and secretaries, be working on your case? If so, at what rates will their work be billed? In many cases, paralegal work will be billed at a rate lower than the attorney's, and secretarial work will not be billed at all. If this is the case, you can control your costs to some extent by talking with a secretary or paralegal about certain issues instead of speaking directly with the attorney. You might want to consider meeting with the other people who will be working on your case before you hire a lawyer.

In some firms, certain lawyers are the "rainmakers" who bring in the business, while others do the legal work. The rainmakers are like car salespeople, and the lawyers who do the work are like the service department. The friendly, fatherly rainmaker who lures you in as a client may not be the one who does the actual work on your case. On the other hand, you may find that you relate better to the young associate assigned to your case than to the lawyer you originally thought you were hiring. Moreover, the younger lawyer's hourly rate will usually be lower. Even so, you may not appreciate having your case handed off to an inexperienced stranger. That's why it's a good idea to find out before you sign a contract who will actually be doing the work on your case.

Beware of any language in the fee agreement that gives a lawyer a "lien" or other right to your house or other assets. Such language could entitle your lawyer to encumber your house or bank accounts. Also be wary of language that permits a lawyer to obtain a "confessed judgment." This could enable your lawyer to sue you for unpaid fees and win automatically without your being able to put on a defense.

Obtaining an Action Plan

Once your marital problems have risen to the level of a court case with lawyers involved, you will find yourself feeling like a passenger in a small rubber raft, floating with the current. At first, the current may be slow or even stagnant. At times, there will be storms that stir up the current. You will never know from one day to the next what the current will be like or where it will take you. You know you are headed for a waterfall-trial-but you don't know where it is, how to avoid it, or what to do once you get there.

Only one person can rescue you from any dangers up ahead, and that is your lawyer. A truly effective lawyer will harness the energy of the river and use it to steer your raft to a quiet pond where rational thought is possible and an agreement can be reached about how everyone can avoid going over the waterfall. But this cannot happen if your lawyer does not do careful advance planning. Your lawyer might hop in the raft with you, tell you about the waterfall up ahead, and furiously bail water, but will such frantic efforts prevent you from going over the falls? If a lawyer has no plan but simply reacts to the other side (or to the legal system's time deadlines), it may appear as if the lawyer is doing work even though he is very ineffective.

This is why before you hire a lawyer you should have a very clear and detailed understanding of what he or she proposes to do in order to win your custody and divorce case. I refer to this as the action plan. The action plan should be a detailed listing of everything the lawyer intends to do to further your interests in the litigation. The action plan should include not only a list of all planned activities but also deadline dates for completing these tasks. The action plan should also, where appropriate, show alternatives in case the initial plan fails. Suppose your lawyer plans to seek emergency relief to place your child in your custody instead of your spouse's. What happens next will depend on how the emergency motion is resolved. Thus, the action plan should contain two plans for what to do after the emergency hearing. Plan A for if you win, and Plan B for if you lose. It may take the attorney several hours to prepare such a plan, and you should be prepared to pay for this time.

You may meet with some resistance when you request an action plan from your lawyer. He or she may say, "I cannot predict the outcome of your case or what will happen along the way." Although it is true that no lawyer can predict an outcome, the fact remains that your lawyer must have a game plan to be effective.

Some attorneys are so organized that they have preprinted forms and form letters for all the stages of different kinds of cases. An action plan is a routine part of the service they provide all their clients. A lawyer who provides written or taped materials to educate you about what can and will happen thereby demonstrates his or her organizational and planning skills.

Many lawyers, however, do not have a systematic approach. Rather, they deal with each case individually from scratch. This in and of itself is not a contraindication for hiring a lawyer, but if the lawyer doesn't want to focus on your case long enough to map out a strategy at the very beginning, then his or her attention may be too fragmented to do a good job for you. If the lawyer hesitates to give you what you are asking for, make sure you are making yourself clear. Tell the lawyer you don't want any predictions or guarantees. You simply want to know how he or she plans to win your case-in writing.

If the lawyer tries to persuade you that preparing such a plan now would be premature, ask why. Since you have not yet retained this lawyer, you are in the strongest bargaining position you will ever be in. Once you have paid the retainer, you will have a vested interest in staying with the lawyer. Before you hire the lawyer, though, the lawyer is still trying to woo you as a client. If a lawyer is not willing to put in the time, thought, and effort necessary to plan your effective representation before he or she has your business, why would he or she be inclined to do so once your hefty retainer has been deposited? You are paying for the lawyer's time, so there should be no reason for him or her to balk at preparing such a document. If a lawyer is unwilling to do it, seriously consider not hiring him or her.

You must obtain an action plan when you hire a lawyer. Corporations, insurance companies, and other litigation savvy clients insist on detailed proposals and projected budgets from their outside lawyers and then monitor the case to make sure that original estimates are not exceeded. You may not have the bargaining power of a major insurance company, but you are no less entitled to know what a lawyer proposes to do for you and how much it will cost. It is not enough to simply retain a lawyer and then sit back and wait for wonders to happen. They won't.

You must ask the attorney what he or she thinks about your chances of success and why. You need to find out what the lawyer proposes to do to maximize your chances of success. You need to know whether your attorney believes your expectations are realistic, and if not, why not. If you and your attorney cannot come to terms on this, you may need a different lawyer-one who believes in your cause. You need to know how long your lawyer expects the case to take and why. You need to get a rough estimate of how much the case will cost and what that estimate is based on, because you need to know ahead of time whether you can afford to fight. The litigation decisions you make will be based, at least in part, on cost factors. If you find out ahead of time what you will be up against in terms of fees, you can make your litigation decisions intelligently.

If you have difficulty eliciting an action plan from the attorney you plan to hire, it may be because he or she is one of the passive litigators. Generally speaking, there are two litigation styles for divorce lawyers those who control the case and those who let the case control them. A controlling lawyer will typically be the first one to serve interrogatories (written questions) on the other side and ask to take the depositions (sworn, transcribed interview) of the other side's witnesses. A passive lawyer will typically do nothing until he or she receives interrogatories from the other side, and then all of his or her effort will go into answering them before the time limit expires. Meanwhile, this lawyer will typically have done nothing assertive to make progress on your behalf. Both types of lawyers have plenty of things to do to keep them busy. The difference is that the assertive, controlling lawyer is making things happen, while the passive lawyer is simply reacting to what the controlling lawyer does.

An argument can be made that the passive lawyer is cheaper because he or she does only what is absolutely necessary and doesn't initiate anything. The problem with the passive lawyer is that all he or she does is temporary damage control. Sooner or later, the trial date will be upon you, and if your passive lawyer hasn't done any affirmative preparation, you may lose.

Of course, if both you and your spouse have passive lawyers, having a passive lawyer will not be as big a problem as it would if the other side had a controlling lawyer and you had a passive lawyer. But how will you know ahead of time whether your spouse's lawyer is going to be passive or controlling? Just to be safe, get yourself a controlling lawyer.

How can you determine if a lawyer is passive or assertive? A passive lawyer will have difficulty giving you a detailed, written plan of action for your case. This is because passive lawyers don't know what they are going to do until they see what the other side does. Controlling lawyers, on the other hand, don't really care what the other side is going to do, because they are too busy planning what they are going to do. A controlling lawyer has an agenda, and the items on it get accomplished. A passive lawyer waits to find out the other side's agenda items and then either follows along or argues with them. Don't be misled into believing that your lawyer is controlling because he or she constantly refuses to cooperate with the other side's demands. The mark of a controlling lawyer is not refusing to meet the other side's demands; rather, it is making demands of the other side.

Sticking with a Plan

A lawyer may have every intention of being assertive, aggressive, and in control of the litigation and then, for whatever reason, fail to deliver on that promise. Take the case of Susan. She wanted an aggressive, spare-no expense lawyer. She found someone who professed to be unstoppable, who claimed he would represent her as aggressively as anyone possibly could. He mapped out the strategy he planned to follow in her case and showed her the form interrogatories and requests for production of documents he would file together with the complaint for divorce should Susan hire him. Susan was impressed with the lawyer's enthusiasm and hired him immediately.

Susan's attorney filed the initial papers as promised and then started to drift away from her case. The other side had not answered the interrogatories after thirty days, yet her lawyer did nothing. Susan wondered what was going on and called her lawyer, who told her he would follow up. He didn't. The next thing Susan knew, she was being asked to answer interrogatories from the other side-even though they had never answered hers. She asked her lawyer why this was so, but he simply advised her to get to work answering the questions.

Even though this scenario does not spell disaster, it does portend problems down the road. After a strong start, Susan's lawyer started losing steam. This could happen for any number of reasons:

1] He could be too busy with more urgent matters and be putting Susan at the bottom of his to-do list.

2] He could be avoiding the case because it is not enjoyable to work on.

3] Susan may not be paying her bills on time, so her attorney is working for clients who do pay on time.

4] He could be trying to save Susan fees because he is pretty sure the case will settle.

5] He could have every intention of getting back to work on Susan's case just as soon as he drums up a few more clients to solidify his cash flow, but right now new client development is taking up most of his time.

Whatever the reason, Susan needs to find it out and get to work correcting the problem. She should not stew in silence or hope the problem will go away on its own. The more she allows her case to be ignored, the more it will be ignored. And the sooner she gets rid of an unsatisfactory lawyer, the sooner she can start salvaging her case.

Fortunately, when Susan hired her attorney, she insisted that he give her a written action plan listing all the things he planned to do in an effort to win her case, including an estimate of when each task would be accomplished. Without that written plan, Susan would have had no clue what was supposed to happen in her case. Susan set up a meeting with her lawyer and brought the action plan with her. She pointed out that many of the items had not been accomplished by the estimated dates and voiced concern that there might be insufficient time left before her trial to get ready. In this way, she was able to get her attorney to focus on her case. He set up a revised action plan with new deadlines, and this time he completed tasks on schedule. Susan's action plan enabled her to track the progress of her case. Without the action plan, she might not have realized that her case was not progressing, and she would not have been able to take steps to get it back on track.

Communicating with Your Lawyer

Tell the Whole Truth and Provide Requested Information Promptly

If your lawyer asks you for information, he or she will be stalled until you provide it. Because your lawyer won't ask for information unless he or she needs it, treat any request for information as an urgent matter.

Moreover, tell your attorney the truth and give a complete picture, not an accurate but incomplete one. Don't try to make yourself look better than you are. Your lawyer needs to know the whole truth about you, warts and all. Why? Because it is your lawyer's job to make you look good, and he or she can't do that without knowing about your flaws, shortcomings, and skeletons in the closet. Suppose you are HIV-positive and have been convicted (even though many years ago) of child molestation. You fear that you will lose custody of your son if this information becomes known. But if you conceal the information from your attorney, he or she can't develop a plan for dealing with it. Armed with the facts, he or she may decide to retain an expert to testify that your HIV-positive status poses no threat to your child. An expert could also educate the judge regarding your present mental status and whether you are currently at risk for being abusive to your child. Your lawyer might also try to get your case before a judge who tends to ignore child abuse or one who is known not to discriminate on the basis of HIV.

The sooner your lawyer knows of the weaknesses in your case, the sooner he can get started developing a plan to overcome them. If the other side has the information and springs it on your lawyer at trial, your lawyer will appear incompetent to the judge. Remember, your spouse knows a lot about your past and will be feeding all sorts of negative information about you to his or her own lawyer. Don't risk your lawyer's credibility (or your own) by withholding potentially damaging information. Better to get everything out in the open so the damage can be controlled.

Have a Legitimate Reason to Call Your Lawyer

The stress of a divorce and especially the behavior of your spouse can put you on edge. Because financial and childcare arrangements are up in the air, and because spouses can be uncooperative regarding these matters, planning anything is extremely difficult. It's almost as if your life is not your own. If you are lucky enough to have a job, you probably go to work each day wondering how much of the money you are earning will be taken away and given to your spouse and whether you will have any funds left after paying the spouse, the child support, and the lawyers.

It's not surprising then that whenever your spouse acts unexpectedly or something happens that could worsen your plight, you feel like calling your lawyer and passing along the information. Sometimes, though, what has happened does not need to be communicated to your lawyer at all. Other times, the information can be written down and mailed or faxed instead.

Let's say your ex is supposed to bring Bobby back at 7:00 P.M., but he doesn't bring him until 7:30. Let's say this happens at least once a week. Do you need to call your lawyer at 7:30 P.M. each time your ex is late? Unless your lawyer specifically tells you to, don't call. This type of information can certainly wait until normal business hours and can even be communicated in a letter-assuming that a hearing, trial, or other court proceeding is not imminent.

Always pause and reflect before calling your lawyer. Ask yourself.. Do I need to call about this, or would a letter be more effective? A letter serves the dual function of apprising the lawyer of the information and putting the information in writing. If you tell your lawyer something over the phone, either the lawyer must write it down at your expense or it won't get written down, thereby increasing the likelihood that it will be forgotten.

Before you call your lawyer, ask yourself what you expect the lawyer to do with the information you are sharing. If all you want is for your lawyer to commiserate with you about your misfortunes, consider calling someone else instead-a close friend, a relative, a helpline, a spiritual counselor, or a therapist. By repeatedly calling your lawyer about legally insignificant spousal transgressions, you not only inflate your bill but also run the risk of alienating your lawyer.

Keep a Written Record of Everything

Events will occur that you might think are legally significant but are not. There may also be issues that you consider insignificant on which your lawyer will place great emphasis. In a lawsuit, things that start out as irrelevant details sometimes wind up years later being the crux of the case. The best way to keep track of details-both significant and insignificant-is to keep written records of everything. Keep a journal memorializing each day's events, and let your lawyer know that you are keeping it so he can ask for it if he needs to. Your journal may be used as evidence at trial. Keep it as factual as possible and do not put private thoughts into it.

Keep copies of everything you send your lawyer and everything you get from your lawyer. It is helpful to file the papers in date order so that you can find them when necessary. Never let anyone borrow your only copy of something. The time it takes to make a photocopy is minimal compared with what could occur if an important document were lost.

It is also helpful to keep a log of your oral communications-and attempts at communication-with your attorney. There will no doubt be times when you call your lawyer about something important, but by the time your call is returned, some other emergency has cropped up and the issue you intended to raise becomes lost in the shuffle. Or what if you place several calls to your lawyer about separate issues, but he or she doesn't call you back until the fourth call? Will you remember what all four of your issues were? What if you feel as if your lawyer never calls you back, but he or she insists that all your calls are in fact returned?

Make a copy of the "Phone Log" in and keep it near your phone or with your divorce paperwork. Each time you place a call to your attorney, make the appropriate entries in the phone log: date, time, reason for the call, and what you were told and by whom. For example, if your lawyer was not in when you called, and you were told that he would return your call later that day, write that information down, together with the name of the person you spoke with. That way, when the lawyer does return your call, you can go to your log and remember why you called him. When a call is returned, make the appropriate entries in the last two columns-the date, time, and duration of the return call. By using a phone log, you will be able to keep track of whether your calls are returned, how long calls lasted (to verify the accuracy of your bills), and what each call was about. If your lawyer repeatedly fails to return your calls, the log will serve as documentation when you write to the lawyer or a disciplinary body about the problem.

Keep Your Account Current

Legal representation is not something you are entitled to. It is a service You must pay for, just as you pay for food, clothing, utilities, and car repairs. You would not expect a towing service to tow your car for free if you broke down on the highway but couldn't afford to be towed. Nor should you expect your attorney to represent you for free just because you are in a messy divorce and can't afford to pay.

Don't be lulled into thinking that you can let your unpaid legal bills pile up simply because your lawyer says nothing about them. It could be that your lawyer doesn't have the time or energy to confront you about your bills. Most likely what will happen is that no one will say anything about the unpaid bills, but at the same time your attorney will do lackluster work or put your case on the back burner until you get caught up on your payments. Your attorney may begin to resent you for being so inconsiderate when he or she is putting in so much effort on your behalf. Even though you may not be confronted directly about late payments, the quality of your representation may suffer as a result.

Some attorneys believe that a client who does not have the cash and is not willing to take out a loan to pay the retainer is not worthy of their representation. The rationale for this attitude is this: if you would take out a loan for a car or a house, why not something as important as a divorce? If you consider your divorce or custody fight less significant than a car, some lawyers will perceive you as not being serious enough about the litigation to be a cooperative client. They will realize that their bills will be at the bottom of your pile.

Attorneys don't want to wait to be paid any more than you want to wait to have your phone calls returned. Your attitude about your legal bills is extremely important. Show that you understand the value of your lawyer's time, and he or she will find it easier to respond to your legal needs.

Be Polite

Common sense tells you to be polite to your lawyer, but as your case goes on, you may find this difficult. Divorce lawyers seem to be a natural target for clients' hostility toward their spouses and the judicial system. The longer a case goes on, the more frustration and hostility mount. If your lawyer is the bearer of bad tidings, the temptation is great to lash out at him or her. Resist the temptation. It will have the same effect on your lawyer's attitude toward you as not paying your bill.

Although a good lawyer will be able to help you through minor crises and should be able to let a certain amount of negative emotion roll off his or her back, making a habit of being hostile to your attorney will only undermine your case. Use the same manners with your lawyer that you would like him or her to use with you. Remember, your lawyer is a person with feelings, and if you make his or her life too difficult, you may find yourself shut out of it.

Common Client Mistakes

Having Unclear Objectives

One of the biggest mistakes you can make is to go through the litigation without knowing what you hope to accomplish. If you know what you want to get out of the litigation, you will feel less lost and confused. If you know where you are going and have a plan for getting there, you will be able to assess your progress and make adjustments in your plan if necessary. Without a plan, you will be doing nothing more than paying attorney bills and wondering how long the whole thing can continue. Just as your attorney needs an action plan, you need one of your own.

Before you can formulate a list of objectives, you must sift through your personal feelings and those of your spouse to determine what motivates each of you. Try to distinguish what you really want from how you react to your spouse. Also consider why your spouse may be acting a certain way. Because each divorcing spouse experiences the dissolution of a marriage differently, one person is usually in more of a hurry than the other to be divorced, and one person is usually hurting more than the other. If you can identify these different motivations and keep them separated in your mind from the goals you are trying to achieve, you will be less confused as your litigation progresses.

If you have plans to remarry soon but your spouse feels no sense of urgency about the divorce (or wishes to postpone your remarriage), your spouse may use the situation as a negotiating tool and force you to give up a larger share of the assets. If one spouse has more earning potential than the other, the economically dependent spouse may fight the divorce in order to keep his or her hooks in the other's income. An abusive or controlling spouse may resist a divorce or insist on custody of the children as a way of continuing to exert control over the other person. Some people are so fearful of being alone that maintaining a connection, even through something as unpleasant as an ongoing divorce, gives them comfort. Other people view the divorce process as an opportunity to harass and punish their spouse or to drain his or her financial resources.

Negative emotion is to be expected as part of getting divorced. If you face the fact that you are going to have to deal with it, your divorce will proceed more smoothly than if you try to deny it and then lose control when it occurs. Divorcing couples have been irrational and cruel to each other since the beginning of time, and if you manage to escape from a marriage unscathed, consider yourself a member of a very tiny club. Even the ultra-civilized elite of the early 1900's were spiteful in divorce. The following passage from an article in the Baltimore Sun (May 16, 1995) about local historical architecture illustrates the extremes some people will go to for revenge.

In their day, these monolith-like buildings-erected between 19I2 and 1926-were a cornerstone of Baltimore social life and housed many prominent city families. One of the most notable was Capt. Isaac Emerson, a lavishly wealthy man and founder of the drug company that made Bromo Seltzer.

Local lore has it that Captain Emerson built the Emersonian as part of a vicious spat with his ex-wife. Mrs. Emerson lived in a mansion the couple had built at 2500 Eutaw Place, and the Captain supposedly had the Emersonian built to block her view of the lake.

With all the emotional subtext in a divorce, winning means different things to different people. Moreover, even for the same person, what constitutes a win may change over time, depending on that person's emotions and finances. If your spouse has left you for someone else, in the beginning you may feel so angry that nothing short of the death of your spouse would feel like winning to you. But over time, as you get used to the idea that your spouse has left, you may decide that you are happier without him or her. At that point, you may be less interested in paying a divorce lawyer to fight over the dishes and VCR. You might prefer to start afresh with new dishes.

That is why, while it may be tempting to allow your emotions to dictate what you do during your divorce case, this approach can be dangerous. If you don't have a focus and hence a frame of reference against which to measure your progress you run the risk of having the litigation get out of control like a runaway truck with you footing the bill. If you allow your emotions and your reactions to your spouse's legal strategies to control your decision making, you may run out of money before you achieve your desired result. In fact, you may be so busy reacting to your spouse that you don't know what your desired result is.

Once you have separated out your emotional baggage, identify your goals and objectives, and put them in order of importance. Work with your lawyer to determine which issues are urgent and which can be left for later. Your list may look something like this:

Get spouse out of the house or find new living arrangements for myself.
Prevent spouse from snatching children.
Make sure the mortgage gets paid even though spouse has control of all money.
Protect my business from ruinous claims by spouse.
Prevent spouse from cleaning out joint accounts and assets.
Determine what assets I have and which of them are subject to claims of spouse and to what extent.
Clarify temporary living arrangements for children.
Deal with harassing phone calls and/or other harassing contact from spouse.
Decide whether to file for divorce.
Decide whether to countersue if spouse has already filed.
Determine whether I want sole custody, joint custody, or no custody of children.
Determine what my child support obligation will be.
Determine spouse's position on custody.
Determine likelihood of success at obtaining custody arrangements I want.
Determine whether any issues can be settled.
Determine the mental status of spouse.

It is important that you address living arrangements as soon as possible. If you and your spouse have been living together and the impending divorce means that one of you will have to move, that issue must be addressed right away. If you don't know where you will be living, if you worry every day that when you come home the locks on your house will have been changed, or if your spouse has disappeared with all the money and the bank is foreclosing on your house, you won't be able to function at work or on a personal level.

You must focus on finding a place that can be your sanctuary while the divorce battle plays itself out. Do not overlook the importance of having a place where you can feel safe. Whether that means getting a protective order to keep your spouse away, going to a shelter, moving in with relatives, getting an apartment, or buying a new house, this is the first issue you must resolve. Until you have a home base, you will be useless to yourself and to your children.

If you fear for your physical safety, but your lawyer doesn't seem to be taking you seriously or has been unable to get the court to help (which is often the case), consult with a support group or helpline for battered spouses. Tell anyone who might be able to help about the problem. Keep reaching out for help until you get it. Contrary to what your spouse, or even the judge, might be telling you, being abused by a spouse is not your fault. Don't be ashamed to ask for help.

If you have young children, the next issue you must address is where they will live until the court determines custody. Keep in mind that, in a custody battle, you will be judged based on how well you keep the best interests of your children in the forefront. Judges and mental health professionals generally believe that children are best served by having two parents, and that it is not in a child's best interest to have one parent prevent the child from having a relationship with the other parent. If you take the children away from their other parent during the custody fight, your spouse may accuse you of depriving the children of a relationship, with him or her. In general, the more flexible and accommodating you are about allowing your spouse to have time with the children, the more kindly the court system will look upon you in the end. However, if you move out of the family home and leave the children with the other parent, this may be construed by the court as an indication that you abandoned the children and do not care about them.

Of course, there are cases where general principles do not apply, and your case may be one. You need to discuss the specific facts of your case with your attorney in order to determine what approach to take. For example, if you must leave town to find work or for some other reason, it may not be possible to devise a schedule where both parents see the children regularly. If your spouse is abusing your child, it may not be appropriate for him or her to be alone with the child. Your lawyer needs to advise you on how to handle such situations.

Once the issues of where you and the children will live are resolved, and when and under what circumstances the children will see their parents, you can begin to address the other issues on your list. Work with your lawyer to prioritize your goals; then write down what has to be done to accomplish each. You will be responsible for some of these things and your lawyer for others. Next to each item, pencil in the date by which you and your lawyer propose to have it accomplished. When your list is complete, you will have your own action plan that you can use to periodically monitor the progress of your case and the effectiveness of your attorney. If at any time your case does not appear to be progressing, take a moment to assess the reason. Perhaps it's your own procrastination, your lawyer's failure to accomplish promised tasks, or new legal issues popping up-any of these things could prevent you from focusing on your intended goals. Take appropriate steps to correct any problems and get back on track.

Your action plan is like a to-do list. Often when we feel overwhelmed by all the work we have to do, when we feel as though-despite working many hours-we are not getting anything done, it is helpful to make a to-do list and then check off items as we accomplish them. This allows us to see written evidence that we have, in fact, accomplished a great deal, even though it may not feel like it.

Succumbing to the Other Side's Mental Engineering

Another common mistake you must not make is to allow the other side's head games to bother you. Before you embark on a divorce or custody fight, even before you go lawyer hunting, take an emotional inventory. Do you feel scared, angry, weak, powerful, afraid, confused? If you feel angry and powerful, that's great. If you feel weak, afraid, or confused, you need to get your thoughts organized and make a plan so you can start to feel less so.

Once the fight begins, not only will you be under siege legally, but you will be under attack mentally and emotionally. Not only will your spouse be your adversary, but he or she will have a powerful ally in the form of an obnoxious, intimidating attorney. You will have to be and you can be strong enough to withstand this attack.

If you want (and can afford) the help of a therapist, by all means, explore this option, as long as your lawyer has no objections. Align yourself with friends, neighbors, family, support groups, spiritual counselors, parents of your children's friends, and anyone else you can think of. Remember that roughly half of all marriages end in divorce. You are not the only one going through this. There are people out there who have been where you are, or are where you are, who can help you. They can say and do things that will help you maintain a positive attitude.

It is up to you to ask for help when you need it and to take care of yourself as the battle rages. Think of yourself as a football player. When a play-off game is approaching, football players eat right and exercise. They eliminate distractions from their lives so they can train for the big game. They analyze the opponent's strengths and weaknesses and plan a strategy accordingly. They don't cower in fear and fantasize about the worst. Rather, they ready themselves for the fight. This is how you should approach your lawsuit. One thing you can do to prepare yourself for the fight ahead is to anticipate the four most common mind-manipulation techniques employed by divorcing spouses:

Threats and intimidation
Criminal charges
Spouse-bashing and brainwashing of children
Psychologists and other paid experts

Becoming Discouraged

Now that you have read something about how a divorce progresses, you can probably see the similarities between a divorce and many of life's other challenges: a golf game, an election campaign, repairing a funny noise in the toilet, the quest to get pregnant, a war. First, pick a challenge from your past. Do you remember how things started out and then changed direction and how, as a result, you felt alternating elation and despair? Remember the unpredictable twists and turns you took on your way to the final result? Remember how it took much longer than you had originally thought it should?

As your divorce progresses and your nerves start to fray, compare the divorce to those other struggles. You are going to have ups and downs, but having a bad day does not mean that all is lost. Look at your action plan and see how far you have come. The emergencies that seemed so important last month have faded away, only to have their places taken by new ones. Divorce is a process, and for every problem that crops up, there are several ways to fix it or turn it to your advantage-as long as you persevere. Hang on to your perspective and your sense of burner. If you have children, you need to rise above the mudslinging and get on with living and having a positive relationship with the kids.

Using Your Lawyer as a Therapist

Many times, you will be tempted to talk to your lawyer about your personal problems, particularly since he or she is right in the middle of the action. Resist the temptation. Your lawyer is not trained to help you with nonlegal issues. Although they can and should give you the legal perspective on your problems and help you understand what your rights are and what you risk by making certain choices in the litigation, lawyers cannot help you deal with feelings such as rage and depression. Talk to your lawyer about your feelings only to the extent that the lawyer encourages it, and only for purposes of establishing whether your fears are legitimate and what you can do about them legally.

Once your lawyer gives you the lay of the legal land, if you still cannot cope emotionally, find someone better equipped to help, such as a therapist, rabbi, minister, or priest. Let your lawyer know if you are contemplating counseling. He or she should find out whether what you say to a counselor will remain confidential and immune from being subpoenaed or whether your spouse could get hold of your records and use them against you in the litigation.

In any event, do not bore your lawyer with tirades against your spouse. First of all, you will be charged for the time and will have gotten absolutely nothing for your money. Second, subjecting your lawyer to your negative emotions could make him or her angry or annoyed at you or your spouse, thus making him or her less objective and therefore less effective.

Remember, your lawyer's job, ultimately, is to get the judge to decide your way. If he or she can settle your case before the trial, so much the better. But to do this your lawyer needs to be able to view your case from the judge's perspective-not just yours. Use your lawyer as a weapon in your struggle to win your divorce or custody case, but keep that struggle separate from your other struggle-to heal yourself emotionally.

Expecting to Get Justice by Going to Court

Many people naively believe that, if they can just get the judge to listen to what their ex did, the judge will make things OK. Well, it doesn't work that way. Why not?

In some jurisdictions, judges are appointed as part of a political process and are therefore not answerable to the electorate, other than possibly having to run in infrequent "retention elections." Their biases, values, and belief systems are often more in sync with the political cronies who control the system than the people who appear before them. Even judges who are elected come with no guarantee of open-mindedness. In fact, many judges who routinely hear divorce cases become jaded and callous, adopting the attitude that if two grown people cannot resolve their differences without resorting to the courts, then they deserve whatever result the system decides to impose.

Because there are two sides to every story, judges often find it impossible to figure out who is right or who is telling the truth in the short time they have to deliberate. Instead of trying to figure out the truth themselves, some judges look for a way out. Some will hand the matter off to a social worker or psychologist to "evaluate" often at great expense to the divorcing spouses.

Just as often, a judge will apply direct pressure to the lawyers and litigants to work it out among themselves. Sometimes a judge politely asks the parties involved to work it out themselves. It is not uncommon, though, for divorce judges to lecture, belittle, shame, threaten, and punish litigants in an effort to get them to work it out or to get one party to give in to the other. Some judges are purposely irrational, unpredictable, inconsistent, rude, or insensitive, perhaps in the hope that the parties will be sufficiently cowed to agree on a resolution rather than taking the risk of letting the judge decide for them.

Take the case of Roslyn Smith, reported in the Maryland Special Joint Committee on Gender Bias in the Courts report issued in 1989. Ms. Smith sought help from the court system after her husband threatened to kill her with his gun. She told the committee:

The thing that has never left my mind from that point to now is what the judge said to me. He took a few minutes and he looked at me and he said, "I don't believe anything that you're saying". "The reason I don't believe it is because I don't believe that anything like this could happen to me". If I was you and someone had threatened me with a gun, there is no way that I would continue to stay with them. There is no way that I could take that kind of abuse from them. Therefore, since I would not let that happen to me, "I can't believe that it happened to you."

I have just never forgotten those words.... When I left the courtroom that day, I felt very defeated, and very powerless and very hopeless, because not only had I gone through the experience which I found to be overwhelming, very trying and almost cost me my life, but to sit up in court and make myself open up and recount all my feelings and fear and then have it thrown back in my face as being totally untrue just because this big man would not allow anyone to do this to him, placed me in a state of shock which probably hasn't left me yet.

Or take the case of Kathleen Murphy, a bank teller who lost custody of her five-year-old son to her former husband, a lumber company executive. According to newspaper reports, the judge awarded her ex-husband exclusive use of the family house and ordered her to pay him $95 per month in child support, even though at the time she was only earning $7 per hour. Ms. Murphy told the Baltimore Sun, "After you put your faith in the judicial system for your whole life and something like this happens to you, you go home and suffer in silence."

Or take the case of Vivian Archie. Although the Tennessee state judge handling her custody case was convicted of sexually assaulting her, his conviction was later overturned. A federal judge who disagreed with this result explained why:

The theory of the felony counts was that the [state judge] willfully-and repeatedly used the powers of his judicial office to coerce a woman named Vivian Archic into fellating him on pain of losing her child. Mrs. Archie was physically restrained throughout these assaults, according to her testimony, and she was afraid to scream for help because of the [state judge's] implied threats to deprive her of the custody of her little girl. The jury evidently thought that Mrs. Archie was telling the truth-and if the jury was right in this, it is hard for me to imagine a more clear-cut deprivation of liberty.

People going through divorce often see their own position as the "right" one and cannot believe a judge won't see it the same way. But a trial is not about the truth; it is the telling of a story. What the judge hears will depend on how good a storyteller your lawyer is and how convincing you and your witnesses are. If you are stiff and wooden or overly emotional and hysterical, the judge may not believe you or may sympathize with your spouse. The judge may have gone through a messy divorce herself, and you may remind her of her ex-husband. The judge could have a very negative reaction to you for some reason, and you may never know why. Although judges are supposed to be trained to put aside personal prejudices and biases, is this really possible? You must realize that whenever you turn a decision over to a judge, as opposed to reaching agreement with your spouse, you are both handing over control to someone else, someone about whom you know very little and over whom you can exert only as much influence as your lawyer can muster.

US. v. Lanier, 73 E 3d 1380 (1996). The U.S. Supreme Court also disagreed with the overturning of the judge's conviction and sent the case back for reconsideration.

Your lawyer may try to put certain things into evidence before the judge that are excluded for technical reasons. For example, things other people have told you may be excluded because they are hearsay. Some things may be ruled inadmissible because the judge finds them to be irrelevant. And certain people may not be willing to get up on the witness stand and testify against your spouse under oath because they are afraid of repercussions. What actually comes out at a trial may not bear any resemblance to the way things really are.

Let's suppose, though, that your lawyer does a good job, and all the evidence you wanted to put before the judge for consideration is admitted. You succeed in proving that your spouse, a manic-depressive taking lithium, has a house full of guns and a stockpile of food she plans to eat while living in the underground bomb shelter she insisted on building for use when the roving bands of social misfits take over the country. It may seem crystal clear to you, and everyone you know, that your wife is a nut, but don't be so sure the judge will necessarily come to the same conclusion. You may believe your gun-toting, manic-depressive wife is not a competent parent, but the judge may believe that everyone has a right to bear arms and that, as long as the manic-depressive is taking her medication, she can parent effectively. The judge may view the bomb shelter and food stockpile as legitimate precautions in a world where anything can happen. There are two ways to view every story.

Because judges are so unpredictable, if your legal position is less than clear-cut, it might make sense for you to compromise with your spouse and settle the case. You will not only save on fees but also avoid the risk of getting a bad ruling from the judge.

Even if you win your case and are totally vindicated at the trial level, your spouse can always appeal, thus creating more delay and expense, and possibly win the appeal. For this reason, even if you know you are right, it sometimes makes sense to give up a little and settle, so you can have the fight over sooner, more cheaply, and on terms you can live with.

[ "The Lawyer Game" was reproduced from the BetterDivorce website. Thank you for making this information available. ]

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