Excerpts from How to Avoid the Divorce From Hell Chapter: 8 Why You Want Your Spouse to Have a Good Lawyer, Too The last thing you want when you are starting a divorce is for your spouse to hire a stupid lawyer. More often than not, when I tell my client that the attorney who is going to be representing the other side is a good lawyer, he winces. That’s because he doesn’t understand the extreme cost which he may have to pay for a stupid opponent. He assumes that if the other attorney isn’t very good, that means that we win. There are, in fact, times when this happens. I have, on several occasions, obtained an extremely good settlement simply because the other attorney had-n’t a clue what he was giving away. It doesn’t happen as often as you would think, however. The stupid attorney is easy to beat at court. However, if you really want to settle your case without going to court (and who wouldn’t?) the stupid attorney will make it much more difficult to do so. The likely result is that incompetent counsel on the other side of your case will vastly increase the fees, acrimony, and general craziness — all out of proportion to the benefit to you of some issue which he might overlook through ignorance. Let me explain. First, we need to define some terms. By “stupid attorney,” I mean someone who is incompetent, ignorant, unfamiliar with family law, or just plain “doesn’t get it.” This will distinguish the “stupid attorney” from the “Lawyer from Hell” referred to in Chapter 12. The Lawyer from Hell is someone who very much “gets it.” He is generally quite bright, intimately familiar with the ins and outs of the system and manipulates it for his own, and sometimes for his client’s benefit. The stupid attorney is generally acting from very good motives. He just doesn’t know any better and can completely screw up a case as a result. The stupid attorney will be rigid On some dim level, he knows that there is a great deal he doesn’t know. Therefore, he will cling quite rigidly to whatever he thinks he does know. This means that there will be absolutely no creativity in the way his client’s case is handled. Because a particular approach worked once for him in another case, he will repeat the same formula, even in the face of irrefutable evidence that it isn’t working now. If your attorney suggests a novel solution which creatively solves the problem, he will be afraid to agree for fear it is a trick or a trap. Since he doesn’t have the ability or the experience to think through all of the permutations of the admittedly creative suggestion, he will stick to the “safe,” the tried and true. Mind you, he is not doing this out of bad motives. He wants to be sure that his client is protected. He doesn’t want to take the risk, and the liability, of making a mistake by recommending something which he doesn’t fully understand. And since he knows in his heart of hearts that the other attorney is brighter than he is, he will take the safe way out and say no to the novel solution, in case he missed something. It is extremelyWHY YOU WANT YOUR SPOUSE TO HAVE A GOOD LAWYER, TOO difficult to settle a case with an attorney such as this. The elegant solution to a complex problem is totally impossible. A stupid attorney will be unrealistic Because she is stupid, she will be blind to the weaknesses of her own case. This means she won’t see the fact that she really can’t win on a particular issue because the facts or the law are against her. One of the hallmarks of a good lawyer is to remain objective with respect to her case so that she can spot not only the strengths but the weaknesses. If the weaknesses can’t be turned into strengths or compromised in some way, they should be conceded. One of the worst disservices an attorney can do for a client is to continue to fight on a losing issue, even in good, though misguided faith. All this does is increase the legal fees and level of animosity. Some of the worst attorneys I know are in fact very bright individuals. However, they are blind to the weaknesses of their case and as a result, we litigate everything. You don’t want an attorney like this, nor do you want your spouse to have one. I have literally pleaded with opposing counsel to simply read a particular code section which absolutely demonstrated that his position could not possibly prevail under the law. He was a real estate attorney who decided to branch out into family law because the divorcing couple owned lots and lots of real estate. He assumed that because he knew about real estate law, he knew how to handle real estate in a divorce. Wrong. The only response I got to that letter (which in fact included a copy of the code section which said unequivocally that he was dead in the water) was a sarcastic reply demanding to know who appointed me Goddess of Family Law. Before we finally got to trial on the issue he couldn’t win, an additional $100,000 in attorneys’ fees had been consumed. Now, mind you, after trial my client ultimately came out about $150,000 ahead of what he was willing to settle on, which left him a net $50,000 to the good. However I can assure you that he would have gladly compromised it at the beginning, and in fact offered to do so, because he would have preferred to see his ex-wife have the money rather than pay it to the attorneys. The wife’s attorney couldn’t see it and his client missed out on a very good deal indeed. A stupid attorney will get emotionally involved in the case
I have said before that one of the most important attributes of a good divorce attorney is objectivity. This enables her to see the weaknesses in your case and prevents her from being blinded to reasonable settlement opportunities and creative solutions. When an attorney becomes emotionally invested in the case and decides to become a “white knight” for his client, he is at risk of becoming a co-dependent. Trust me. This does not help. We all know that emotions run high in divorces. The client will call his attorney, absolutely outraged at some conduct by the other party and demand that a “strong letter” be sent to the other side. I am not a fan of the “he said/she said” form of correspondence. It serves no purpose other than to momentarily gratify the sender’s client and utterly inflame the other party. Some attorneys have turned this into an art form. A bad attorney will literally paper you with these letters (all of which cost money, of course) simply because the client insists on them. The better attorney is the one who refuses to write them unless they serve a useful purpose. I can assure you that the likelihood of settlement decreases significantly once such an exchange is started. |