Hiring the Lawyer

Your interviews are complete. You've reviewed all of your notes and analyzed all the information you've compiled, and you know whom you want to hire. What next?

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.

Take Jerome's situation, for example. He located Lawyer X after a lengthy search and hired him primarily because he felt comfortable with him. Jerome trusted Lawyer X and, unlike most of the other lawyers he had interviewed, he had no trouble talking to him or understanding him. Lawyer X told Jerome that he charged an hourly rate of $150 but said no written fee agreement was necessary. The lawyer sent Jerome a letter thanking him for retaining him to represent Jerome in his "domestic-relations matter" and requesting a retainer of $7,500. Feeling they understood each other, Jerome gave Lawyer X the retainer.

As the case progressed, Jerome continued to feel that his initial impression had been correct. His attorney appeared to be a warm, caring, down-to-earth man who always found time to answer Jerome's questions and keep him fully informed of all developments in the case. Whenever Jerome was faced with choices that were difficult, whenever he wasn't sure what to do, he felt comfortable relying on his lawyer's recommendations.

Unfortunately, Jerome's divorce did not go as smoothly as his relationship with his lawyer seemed to. Three years later and the retainer long gone, Lawyer X was still hard at work on Jerome's behalf. Lawyer X explained that Jerome's wife had hired a snake-in-the -grass lawyer who made the entire divorce process take much longer than necessary. After Jerome's retainer was used up, his lawyer began sending detailed monthly bills, which Jerome reviewed carefully and then juggled his budget to pay. One month, Jerome noticed that he was being billed at $200 per hour instead of the usual $150. Assuming a clerical error, Jerome contacted his attorney, who informed him that he had raised his rates.

Jerome was flabbergasted. Could a lawyer just all of a sudden do that? What could Jerome do? Start over with a new lawyer? Even though Jerome understood the concept of inflation, having his already-costly legal fees increase so much with no notice left a bad taste in his mouth. He couldn't help but wonder whose best interest Lawyer X had in mind. He started wondering whether his case had dragged on so long because of his wife's snake-in-the-grass lawyer or because his own attorney wanted to continue billing him. The trust he had once felt for his lawyer started slipping away, and Jerome began to second-guess almost all of the recommendations his lawyer had made so far. His sense of security was replaced with paranoia, and Jerome was left wondering if there was anyone he could trust.

It is not improper or unusual for a lawyer to periodically raise his or her rates (unless the lawyer has specifically agreed not to). If Jerome had obtained a written contract from Lawyer X, it most likely would have provided either that the hourly rate would last for the duration of the representation or that it would not. Either way, Jerome would have known what was coming and could have dealt with the issue when he signed the fee agreement. Any price hikes could have been anticipated and taken in stride instead of coming as an unwelcome shock.

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.

Take Sandy's case. A hearing was scheduled to determine where the children would spend Thanksgiving. Sandy and her ex were able to reach agreement before the hearing, however, so Sandy told her lawyer to call off the hearing. Her lawyer wanted to, but the lawyer representing Sandy's ex was known for going back on his agreements. Sandy's lawyer told her, correctly, that in order to fully protect her rights, he would have to get a written stipulation from the other side before he could call off the hearing. Unfortunately, the stipulation could not be drafted quickly enough, and both attorneys had to go to court on the day of the hearing. If Sandy's lawyer had been able to trust the opposing lawyer, an extra expense to both sides could have been avoided. Doubts about the credibility of the other lawyer prevented Sandy's lawyer from taking any shortcuts. When a "bad apple" is representing one of the litigants, distrust leads to extra expense for everyone involved.

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 of the Contract
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 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. This is 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 and you want it 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 but fail to deliver on that promise. Take the case of Jeanette. She wanted an aggressive, spare-no expense lawyer. She found someone who professed to be unstoppable. He 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 Jeanette hire him. Jeanette was impressed with the lawyer's enthusiasm and hired him immediately.

Jeanette'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. Jeanette wondered what was going on and called her lawyer, who told her he would follow up. He didn't. The next thing Jeanette 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, Jeanette's lawyer started losing steam. This could happen for any number of reasons:

  • He could be too busy with more urgent matters and be putting Jeanette at the bottom of his to-do list.
  • He could be avoiding the case because it is not enjoyable to work on.
  • Jeanette may not be paying her bills on time, so her attorney is working for clients who do pay on time.
  • He could be trying to save Jeanette fees because he is pretty sure the case will settle.
  • He could have every intention of getting back to work on Jeanette'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, Jeanette 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 Jeanette 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, Jeanette would have had no clue what was supposed to happen in her case. Jeanette 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. Jeanette'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.