Excerpts from Unbundling
Your Divorce
Chapter 2: Are You A Good Candidate For Self-Representation?
HOW CAN YOU TELL?
I will later discuss in detail the myriad ways in which legal services can be limited, either by the specific task to be performed or the subject matter area. However, before you can get to the question of which unbundling structure will work best for you and your case, you need to address a much more important threshold question: Are you a good candidate for limited legal services? There are some very good reasons why you might not be.
EMOTIONAL CONSIDERATIONS
Are you able to detach yourself enough from the obvious emotional content of your divorce in order to make clear decisions about your property, support or children? This is the first threshold issue, and Appendix 7, starting at page 109, contains a detailed self test questionnaire to help you analyze it.
One of the most important functions of lawyers or mediators in divorce is to superimpose an independent, objective and emotionally uninvolved view of the case. Now, let’s not kid ourselves: Of course you can’t be totally uninvolved. It’s your divorce, it is your family, and these are your kids. But if you can’t at least have enough self awareness to attempt to separate a logical or financial decision from its emotional content, you simply will not be a good candidate for self representation. You will be unable to see when it is preferable to concede an issue you can’t win and concentrate your efforts on one you can. You may go to war and draw a line in the sand over a matter of little overall importance. If you or your spouse has defined a minor issue as the benchmark of the cosmic win/lose dynamic, investing it with lots of emotional baggage, someone has to be around to point that out to you. Otherwise, you’ll spend a huge amount of time and effort trying to win something stupid, probably make a fool of yourself in the process, and lose credibility with the judge. You must have someone whom you trust, who is knowledgeable about your case, and who can provide an independent perspective and reality check.
The fact is that if it makes you nuts to have to deal with your spouse over what time the kids are due back from soccer practice, you may not be emotionally equipped to negotiate the bigger issues with him. Some couples have such a toxic relationship that they simply can’t tolerate having to deal with each other at all. You aren’t ahead if the money you saved on legal fees is paid to your therapist instead, or if you give away the store because it’s easier than having to face one more unpleasant confrontation.
Similarly, if you look to the litigation process as an opportunity to “get even” for past wrongs, you will not be effective. You will lack the necessary emotional detachment, and your private agenda will bleed through into every aspect of the proceeding. Also, people who start out feeling wronged tend to overcompensate in their demands to make up for what they thought they “lost.” As a result, they tend to fight about things they can’t win and should concede. All of this creates a significant emotional and financial drain.
Ideally, you and your spouse both agree that it is in the best interests of all concerned, including the kids, to detach from the emotional content as much as possible. You may not always succeed, but it makes both of you better candidates for unbundling.
CAN YOU HANDLE THE PAPERWORK?
Let’s face it: Legal paperwork is technical and confusing. Even lawyers and paralegals sometimes struggle with it. If you really cannot do it (and we are not all comfortable with paperwork) be honest and acknowledge it. You may be able to find a paralegal to draft it for you or you may prefer to leave the legal drafting on the list of your attorney’s responsibilities. Representing yourself involves not only court forms, complex financial disclosures and expense statements, but business letters, subpoenas and court orders. Many paralegals are simply not qualified to draft these. In addition, you may have to prepare written court exhibits to prove your side of the case. You won’t win at trial if your “evidence” is a shopping bag full of papers which you rifle through between questions.
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