Obtaining a Plan of Action from Your Divorce Lawyer
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.
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PROVING MALPRACTICE -- To prove malpractice, the plaintiff must prove that a lawyer failed to exercise reasonable skill and that such failure was the proximate cause to the damage or loss. This means proving 1) that his or her counsel’s performance fell below a standard of reasonableness; 2) that "this deficient performance did not involve the exercise of judgment, discretion of strategy, or trial tactics"; and 3) that the performance so compromised the action that without these professional errors, the client would have prevailed.
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