Excerpts from Unbundling Your Divorce Introduction A growing phenomenon is changing the face of family law and altering forever the way people approach their divorces. More specifically, it is altering the manner in which lawyers help people with their legal problems. Under the old paradigm, each party to a divorce hired a lawyer (if they could afford one) to handle all aspects of the case, giving the lawyer full responsibility for and power over strategy and tactics. Lawyers call this full service representation. If you couldn’t afford full service, and legal aid was unavailable, you were on your own and out of luck. There was no middle ground. That practice is now being supplemented by innovative methods of delivering legal services, where lawyers provide coaching, advice, drafting, and other forms of legal assistance to help you represent yourself. This means that a lawyer can be retained for only part of a case, or for specific tasks, or even as a coach, showing you how to effectively represent yourself in court. The reasons for these changes are complex. First and foremost, the domestic relations court system is breaking down. As presently configured and funded, the courts are simply unequipped to handle the deluge of divorce cases and related family law matters presented to them. Simultaneously, as part of a growing self help movement, sometimes called the “Home Depot mentality,” individuals are demanding greater control over their own life choices. They want to be given the tools to do it themselves. This includes not only taking control back from lawyers, but even from the courts themselves. Much is written about the so called “pro se crisis” across the country, where large numbers of family law litigants choose to represent themselves in family court. Sometimes as many as 75 percent of domestic relations cases involve at least one party who doesn’t have a lawyer. These choices are frequently driven by financial necessity, as more and more people can’t afford to hire lawyers to represent them in the traditional way. However, two situations are becoming increasingly common: Many people can afford some legal assistance from a lawyer, even if they can’t afford traditional full service. They elect to use a lawyer for the more complex parts of the case, while they represent themselves on the simpler parts. This has the effect of stretching their litigation dollar. In addition, in more and more cases, people who can afford lawyers simply insist on doing it themselves. What they want is for lawyers to tell them how. That’s where limited scope representation, coaching and consulting come in. Both lawyers and litigants have had to reexamine and redefine the traditional attorney-client relationship as it applies to limited scope representation. In some states, the situation is complicated by the fact that it is being done under the disapproving eye of the state bar association and other regulatory agencies; in a growing number of cases, however, it has not only the official endorsement of the regulatory agencies and courts, but also their enthusiastic support. This guide is intended to be a simple and practical handbook to educate you on limited scope representation, so that you can make better decisions about entering into an agreement for limited legal services and defining its parameters. It contains sections on how to determine whether you are a good candidate for limited legal services, as well as detailed suggestions on how to structure the relationship with your consulting attorney. Most importantly, there are several appendices with checklists and questionnaires to help you evaluate your own case and abilities. Take the time to complete these questionnaires fully and in writing, as they are the key to making good decisions about limiting the scope of your lawyer’s assistance. You will find them most helpful if you complete them after reading the text. No one wants to be forced to obtain and pay for services they don’t want, especially when dealing with that most intimate of legal issues: their family. What follows is designed to help you make the best possible decision while alerting you to common pitfalls. Alaska, California, Colorado, Florida, Maine, Nevada, New Mexico, Washington and Wyoming and others have all adopted court rules designed to facilitate unbundling. More are joining them all the time. Iowa has just revised its rules of evidence and Code of Judicial Conduct to encourage unbundling. To find out what is happening in your state, go to www.unbundledlaw.org. I am going to be among the first to say that the family law system in this country does not work. It is beyond the scope of this book to explain all of the reasons why. Unsatisfactory as it is, however, it is all we have right now. As long as a divorce isn’t valid or a child support or restraining order cannot be obtained without a piece of paper signed by a judge, you will have to deal with the legal system in some way. This guide is designed to help you obtain that piece of paper with as little red tape and expense as possible while we all wait for something better to be devised. The good news is that some of the best minds in the legal community are hard at work brainstorming not only ways to improve the current system, but developing whole new ways of dealing with the legal problems of families. If you are among those family law litigants who insist on having greater control over the process, increasing the scope of your own involvement and limiting that of your lawyer, keep reading. This book is for you. You will find some useful suggestions in the pages which follow. Remember, however, that taking responsibility means precisely that: Taking responsibility. Be sure that you are qualified to perform the tasks you undertake, and then do so. If you want to be the one who makes the decisions about your divorce, you must be prepared to live with the consequences of those decisions, even if they turn out differently from what you hoped or expected. Many lawyers are willing to help you handle some or all aspects of your own divorce. They do it because they believe it is right and that the system is unnecessarily complicated. Does this mean that even with an excellent “coach” you are going to know as much about family law as your lawyer does? Of course not. Even with the best of coaching, your lawyer can’t teach you everything she learned in law school and many years of practice. However, if you are willing to educate yourself on the law and the procedures as they apply to your case, and make careful decisions about how much of the legal work you can do yourself and what should be referred to a specialist, you may be happier with the outcome than you would be with the traditional approach. It does not, however, guarantee that you are going to get everything you want, any more than you would have under the traditional full service system. |