I had a reader email me a question for the blog. It set out a fact pattern in a custody case and then asked “what are my odds of winning?” I hear this kind of question all the time. It is a question that no ethical attorney will answer except in the most general way: “You have a strong case” or “with these facts, you have a good claim.” This goes not just for divorce but for almost every area of the law.
I’ll use the facts that GG sent me to illustrate why you should hire an attorney and how to choose one. GG told me that she had custody of her daughter for years and the father had not shown much interest in visitation or involvement with the child. When she went to child support court to increase her child support, the father got angry and told her he was filing for custody and would take the child from her and get sole custody. GG finished by asking if he could do that and “what are my odds of winning?”
First, this is a pretty common fact pattern. One parent pays no attention to the child until Child Support Enforcement hands him or her a bill for unpaid support and starts pursuing the uninvolved parent. The uninvolved parent then turns around, files for custody or to modify a custody order, and asks for primary or sole custody of the child. The thing that the uninvolved parent fails to realize is that Family Court Judges aren’t imbeciles. They see people try this tactic all the time and they don’t look very kindly on someone who does this. It is, basically, the act of a bully. No one likes a bully, and people tend to punish bullies when they find themselves in a position to do so.
Second, there is nothing guaranteed in family court. Nothing. If you fail to show up, if you show up unprepared, or if the opposing party has a good argument to make and evidence (real or fabricated) on his side, you can always lose your case. In GG’s case, it sounds unlikely since Dad already admitted what he planned to do and why, and Mom has a track record as a sole custodian of the child going back a few years. That’s pretty tough for Dad to overcome unless Mom’s behavior as a parent is spiraling out of control because of addiction or mental health problems.
And there’s where having an attorney becomes important. Divorce attorneys, in general, spend a lot of time in Court. They know their judges, and clerks, and they are familiar with how it all works. Divorce attorneys have also spent a lot of time questioning witnesses and presenting evidence in Court. I know that I’ve tried hundreds of cases, big and small, over the years. I know what to expect and I know how to present my case in the best light. Someone who has never spent time in front of a Judge arguing a case or questioning a witness is going to be at a serious disadvantage. You are held to the same standard as an attorney when you go to Court and try to present your own case. You must comply with the rules of evidence and the rules of civil procedure when trying to prosecute your claim for custody or child support or whatever else it is. You must draft your own pleadings that comply with the statutory requirements of your particular claim, properly serve the complaint, provide the correct notice for hearings, and comply with all the local rules of Court.
I’ve used my knowledge of the local Court rules and the rules of evidence to run circles around unrepresented people–from having them held in contempt, to preventing them from entering evidence at trial, to having their claims dismissed outright. It is something that I’ve learned through years of trial practice, and something that an inexperienced and unrepresented party will not be able to do. This sort of knowledge makes all the difference in a contested case.
So now the question really becomes, you know you should hire an attorney but which attorney should you hire? There are a few basic rules to follow when hiring an attorney:
- Meet with the lawyer in person. Set an appointment, sit down with the attorney, and meet with them. See if the lawyer can answer all your questions. See if you like the attorney and feel that you can work with the person. It is very hard to really judge whether or not an attorney is someone you can work with until you meet them face to face. You should also be wary of any lawyer who cannot find time to sit down and meet with you or does not want to take the time to answer your questions. If they won’t meet with you and give you time at the front end of the process, that attorney is not likely to give your case much attention as things proceed.
- Beware of grand claims. Experienced and prudent attorneys don’t promise results to their clients. An experienced lawyer knows enough to understand that almost anything can happen between the initial consultation and the final result at trial. An attorney can tell you that you have a good claim, that the facts of the case put you in a strong position, but an attorney cannot guarantee results and should not give you odds on winning. If a lawyer starts giving you guarantees on results, run, don’t walk for the door.
- Educate yourself on the rates attorney’s charge. Call around to different attorneys and ask them what their hourly rates are. Get an understanding of what attorneys are charging in your area for your kind of case. When you decide to meet with a lawyer, you’ll be a better judge of whether the money they are asking for is too high or even too low. You don’t want bargain basement representation, but you don’t want to get gouged either. Different markets have different rates, so base your research on local attorneys.
- Stay Local. District Court cases, especially for divorce and family law, are not a good place to bring in “Big Guns” from some other jurisdiction. You want an attorney who practices in the County where your case will be heard. That attorney knows the Judges and knows how that particular Courtroom works.
- Don’t Hire a Dabbler. You want someone who spends most or all of their time working in the area of law that involves your case. Don’t hire a criminal attorney to handle your alimony case. Don’t hire a divorce attorney to handle your DWI case. Read the Web site of the firm and see what sort of law they primarily do. Family law is a very broad and complex area of the law and someone who decides to dabble in it with a case here and there is apt to do more harm than good.
- Be wary of a lawyer who talks only of litigation. The courtroom should be your last option, not your first. If you meet with an attorney to discuss your case and the lawyer doesn’t discuss with you options to resolving your case that don’t involve litigation, you should be concerned. There are a few areas where litigation is the only real option. Domestic Violence Restraining Orders are a good example where litigation is usually the only option. However those instances where alternative dispute resolution, such as mediation or other negotiation attempts, is not a viable option are few and far between. For example, I always explain to new clients that Court is expensive, risky and time consuming and that it is the last option not the first. I frequently recommend commencing a claim to force the other party to pay attention and get serious about attending mediation, but I am always clear that avoiding trial if a reasonable settlement is possible is the best way to go.
- Also, Don’t Hire a Lawyer Who Is Afraid to Go to Court. They are out there. The settlement-only lawyers. Most will tell you up front that they don’t like to or simply won’t get involved in litigation cases. Be cautious about this. If your case does not settle, you will likely have to find a new attorney. It adds to costs and can throw your case into disarray.
And that’s my two cents on why you should get a lawyer and some of the things to look for when hiring an attorney. I’m sure the list could get longer, but those are some of the more important points.