About half of divorcing people report that they are unhappy with their lawyers. Some are so unhappy that they fire their lawyer and hire another one. And some of those people find that they are just as unhappy with the new lawyer. There are even a few poor souls who go through numerous lawyers before the divorce is over and invariably, they are still unhappy with the last lawyer. Early in my career when I was practicing conventional divorce law I developed a rule for myself, after a few unfortunate experiences, that I would never be anyone’s third lawyer. If the first two lawyers were unable to satisfy, why would I be able to do it. I suspect my rule saved me from some very miserable clients.
The reason I start off with this story is that I want you to recognize that your discontent with your lawyer may well be the result of poor, rude, indifferent or incompetent service by the lawyer. And when that is the case you should hurry to change lawyers. But first be sure that the problem is not you. Are your expectations of your lawyer realistic? If your lawyer doesn’t return your calls fast enough could it be that s/he has many clients whose needs at the moment are more urgent than yours? Could it be that you expect a lot of hand holding and call your lawyer at the slightest impulse even when you could manage without the call. If your divorce seems to be moving too slow is it your lawyer’s fault or, is it the nature of an overburdened court system? You chose to litigate when there were other, faster alternatives. Did you not understand that it would take a long time and cost a lot of money? And if you went out of your way to hire the star litigator in the county because you believed ( however naively) that this would get you a better result, why are you surprised to find out that this busy, busy lawyer cannot give you tons of personal attention.
Now, having reviewed your own expectations and behavior and, having found yourself faultless, let’s now turn to the deficiencies of your lawyer. Most busy lawyers let the rhythm of the litigation process drive the rate at which your case moves along. If you and your spouse disagree on many issues, the lawyer has to conduct extensive discovery to prepare for a trial in the event you do not negotiate a settlement. All this takes time. Take the scheduling of a deposition. With phone tag and busy schedules it can take several months for the lawyers to find a date on which they are both available. And when the date finally comes it is not unusual for one of the lawyers to be called by the court to start a trial. This requires postponing the deposition for as long as several more months. Some lawyers are more sensitive the time needs of their clients. They minimize the number of depositions they take and work hard to cooperate with the other lawyer to do the same. In other words, a caring lawyer can often move a case along if s/he wants to. This question is whether your lawyer cares. Some do; some don’t. The same applies to phone calls. Some lawyers make it a point to return every phone call within 24 hours. Others return calls when they get around to it. And if your lawyer has concluded that you are an annoying pest, your call may be the last returned. It is important early in your relationship with your lawyer, ideally before you pay the retainer, to determine if the two of you are a match. If you are anxious and need a lot of reassurance let the lawyer know and ask if s/he really has time for you. Sometimes, with a high maintenance client, a lawyer will assign a sympathetic paralegal to do the handholding. But if that does not work for you make sure that you will be able to manage without daily phone calls. If not, pick a less busy lawyer.
One factor that may be holding up your case is the litigation style of your lawyer. Some lawyers cultivate a hard nose image by forcing their adversaries to litigate everything. Not only does this cultivate a tough image, it also generates very large legal fees. If you conclude that this is your lawyer, a frank discussion followed by a change of lawyer is probably in order. Lawyer style has a bigger impact that most clients realize. Although the other lawyers in the community know exactly which lawyers are the hardest to work with, they are not going to tell you. When I practiced law I always knew which lawyers made the worst and most difficult adversaries. If I knew in advance that I would be opposing one of them I would often decline the case unless I really needed the money. Although it would have been better if you figured this out before you paid the retainer, now that you know, you may want to consider another lawyer.
Another problem is the two lawyers who just don’t like each other. If your lawyer and your spouse’s lawyer have bad blood between them the resulting lack of cooperation is going to slow down your case and cost both of you money. Discuss this with your spouse. If you both feel the same way a bilateral change may provide an answer.
Style and personality issues are two of the primary problems. But the worst one is simple incompetence. Unfortunately there is nothing simple about incompetence in a lawyer. Your lawyer may be ignorant of the law because s/he is too lazy to stay current on changes in the law. The lawyer may be a lousy negotiator notwithstanding that most lawyers claim they are skillful negotiators. Most lawyers have received no training in negotiation. Some do it well and many do it poorly, covering their lack of skill with a bellicose style that often scuttles the negotiation. Incompetence can often be expressed as ignorance about family dynamics and child psychology. Few lawyers have studied these subjects yet feel completely entitled to make judgments that can result in unnecessary pain for the entire family. (For a fuller explanation read the chapter on “legal culture” in my eBook, Negotiating the Good Divorce.) Finally, the way a lawyer represents someone in divorce often reflects the essential philosophical perspective of the lawyer. If s/he is a cynic, it will show. If s/he has no wisdom, it will show. The question is whether you will know it when you see it.
If your relationship with your lawyer has soured there is not much you can do but get a different lawyer. If you decide that your divorce is suffering from the incompetence, neglect or foolishness of your lawyer you should also change. Many people question whether they will lose the financial benefit of all the money they have already spent by having another lawyer start over. In fact most lawyers can review a file and get on top of the case in a few hours. And if your lawyer is causing unnecessary conflict, changing lawyers could well save you a small fortune.
One final thought. If you are going to make a change, why not try to get out of litigation altogether? Perhaps your spouse is similarly tired of the struggle and both of you are ready to try an alternative. You lose little by trying an hour of mediation. You could also explore hiring two lawyers who practice collaborative law. If you want to explore this further you are welcome to call mw to discuss your situation. .
Sam Margulies, Ph.D., J.D.
Before he was a divorce mediator, he was a divorce attorney, but changed focus when he realized divorce attorneys did not have the families’ best interests at heart.
Sam Margulies, Ph.D., J.D., is one of the most experienced mediators in the United States. Since 1980, he has mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.