A situation I frequently encounter in meeting with people going through a divorce is that they have decided, for one reason or another – frequently in the middle of the divorce proceedings – to obtain a different lawyer. From speaking with them it seems that their prior attorney was more focused on telling them what they wanted to hear – rather than the reality of what they needed to hear.
In the following article from Diane Mercer (attorney, mediator and author), entitled “Nine Questions to Keep Your Divorce Lawyer Honest”, she advocates that clients ask tough questions of their divorce attorney.
I agree with Ms. Mercer and strongly believe that these questions should be fully addressed at the very first conference.
If there is one thing any experienced and competent divorce lawyer will share with their client, is that the outcome in a divorce is never guaranteed and that the client is best served by knowing all possibilities. As a client, you hope not only that your lawyer will be honest with you but that your spouse’s lawyer will be honest with them. Only in this way can the realistic expectations of both parties be set prior to litigation to not only help manage their emotions, but to minimize the unneeded impact of devastating surprises on themselves … and their family.
From Diana Mercer
There is a lot of incentive for litigation attorneys to blow sunshine up your skirt and tell you what you want to hear. In that first consultation at the beginning of your case, we lawyers are, after all, salespeople. We start with an optimistic overview of your case, and it will be awhile before we start to talk to you about any potential downside.
Plus, it’s human nature to decide what you want to do, and then amass evidence supporting your position and discount evidence to the contrary. So we’re going to help you do that, particularly at the beginning of your case.
Let’s face it; nobody wants to hear bad news. But as an informed client, you need to be prepared for whatever might happen so that you can decide how to best handle your case.
If your lawyer is being honest, he or she will answer the following 9 questions:
- What is my best case scenario in this case? If the Judge agreed with everything I say, and nothing that my spouse says, what do you predict the outcome to be?
- What’s my worst case scenario in this case? If the Judge doesn’t agree with anything I say, but agrees with everything my spouse says, what do you predict the outcome to be?
- What’s an optimistic, but realistic outcome?: Let’s say the Judge agrees with a good part of what I have to say, and some of what my spouse has to say, what do you predict the outcome to be?
- What’s a pessimistic, but realistic outcome?: If the Judge agrees with a good part of what my spouse has to say, and only some of what I have to say, what do you predict the outcome to be?
- Will you play devil’s advocate?: Pretend for a minute that you are my spouse’s attorney. What would you tell my spouse based on what you’ve heard today? Please do not sugar coat your “advice” to my spouse.
- What’s the local reality?: I know you can show me copies of the law and legal cases. But based on what you’re seeing down at the local courthouse, in the family court mediation and custody evaluation office, with the judges, and typical lawyer to lawyer negotiations, what are the realities of settling cases and trial outcomes? As a practical matter, what really goes on?
- Is it worth it to enforce my rights?: Can you quantify the amount of money which is in question? If I enforce all of my rights in this case, as opposed to settling for something less, how will that compare with the legal fees and experts’ fees it will cost to get everything I’m entitled to?
- What’s the range of cost?: If we went to court, what is the range of cost you’d see, given your experience with prior cases similar to mine, both high and low? Are you willing to put that estimate in writing?
- Will you put my money where your mouth is?: It sounds to me like you’re pretty certain of the result you can get for me in my divorce case. Would you please put that in writing? And if you’re not willing to do that, why not?
If this feels confrontational, you can feel free to print this out and hand it to your lawyer. Tell him or her that while you think it’s crazy and overkill, your Huffington Post friend said to talk to them about this because it’s really important.
Like I said above, there is overwhelming incentive for litigation attorneys to tell you what you want to hear. Read this “Open Letter from Your Divorce Attorney” for a real eye-opener, and the truth about why this happens all too often.
Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post