Lawyer-Client Relationship Facts and Tips
Lawyer and Client
Divorce lawyers see themselves as professional advocates - craftsmen using the law to help expedite the most favorable result for their clients. Lawyers are hourly workers who enter into a retainer agreement with clients, a contract that spells out their responsibilities to each other. Also called a fee agreement, this agreement spells out the terms and conditions of the lawyer’s employment and how the attorney’s fees are paid. Most lawyers ask for a deposit, and then begin to withdraw from that deposit based on their hourly rate.
Keep an Eye on Costs
The cost of a litigated divorce – one that goes to court – can be eye popping, and divorce, it should be remembered, makes more people poor than it makes any rich. When a divorce seems headed for trial, most lawyers prefer to work with a retainer agreement, which is the upfront payment. Typically, the total number of hours multiplied by the hourly rate is the lawyer’s fee.
A lawyer’s bill for his or her services does not include attorney costs such as copying costs, service fees, telephone charges, travel expenses, filing fees, or expert witnesses.
Avoid Attack Dogs and Hired Guns
Lawyers vary greatly in their abilities, and care must be taken in the selection of a lawyer to handle a divorce. The divorce attack dog or a hired gun should be avoided. A lawyer is the employee of the client and in a divorce case, a client must keep his or her lawyer on a tight leash.
Stay Off the Telephone
Many clients going through a divorce call their lawyers needlessly, which adds to their costs because lawyers bill for such calls and graduate their billable time in small fractions of an hour.
A Privileged Relationship
The relationship between a lawyer and his or her client is privileged, which means that conversations and communication between the two of them cannot be later used as evidence.
Selecting an Attorney
In selecting a lawyer, a potential client should consider the lawyer’s reputation in the community; his or her experience, and willingness and ability to talk in a language that is understandable.
One Lawyer, One Client
No lawyer may represent both spouses in a divorce action, no matter how "friendly" the parties are. For obvious reasons, couples who have used the one lawyer to handle their legal affairs during the happier times of their marriage cannot use him or her to represent one of them when they part ways.
Losing a case is not malpractice, and malpractice does not include generalized unhappiness with the outcome of a divorce action (very few people are ever happy at the end of a divorce). 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.
What the Client Expects
The client expects that his or her lawyer will confer to pinpoint the problem, research and analyze all available facts and information relating to it, negotiate a settlement if both sides can reach a fair agreement, be candid with the client about the problem, the prospects for success, the time it will take, and the advisability of accepting any settlement offered, and keep in confidence anything said.
What the Lawyer Expects
The lawyer expects that the client will not lie, be prompt for all appointments and not take up an excessive amount of time with visits or phone calls relating to minor details or petty matters, understand that no lawyer can guarantee results in a contested matter and be patient and understand that legal matters are rarely "open and shut" cases; they require time and research.
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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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