Hiring an Effective Attorney
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Hiring a qualified and experienced Austin Divorce Attorney is essential to the outcome of your case.
Many people, when hiring an attorney, think only of the cost and often make the mistake of hiring the cheapest attorney they can find. This is not to say that hiring the most expensive attorney is the best thing to do, either. However, cost should be one of several factors you consider when hiring an attorney. As mentioned previously, you want to hire an attorney who is knowledgeable and experienced. You should also determine the attorney's availability and caseload and the experience of his support staff. Additionally, when you meet with an attorney for an initial consultation, you want to gage how well he listens to you, whether he is willing and able to discuss the issues of your case with you, and whether you feel a rapport with him. Following are several questions you should ask an attorney during the initial consultation:
- How long have you been practicing law? - Many lawyers graduate from law school, take and pass the bar exam, and immediately hang out their shingle. There are many talented young attorneys out there, but the issues of your case are far too important to risk hiring a newly licensed attorney.
- How long have you been practicing in the area of family law? - I would advise you to hire an attorney that has a minimum of three years experience handling family law matters.
- Will you be the attorney handling my case or will an associate or other junior level attorney be handling it? - Depending on the size of the law firm you choose, the attorney who handles your consultation may not handle the meat and bones of your case. With solo practitioners and small firms, the attorney you consult with will be the attorney who handles your case 99.9% of the time. With larger firms, a junior associate may handle the day to day work on your case.
- How large is your support staff? - Again, with solo and small firms, the support staff may be very small. Larger firms, of course, have much larger support staffs. With solo and small firms, your chances of speaking with your attorney when you call or getting a return call from the attorney are fairly high. Whereas with larger firms, a paralegal, rather than your attorney, may take most of your phone calls.
- How experienced is your support staff? - The experience of the support staff is not as critical as the experience of the attorney. But it's nice to know that you can call and ask about the status of your case or a procedural question and get a sensible answer from a member of the support staff. Keep in mind, though, that support staff cannot dispense legal advice. So, if you have a legal question, your attorney will be the one to answer it.
- How many family law cases do you have pending right now? - The answer to this question, in conjunction with the answer to the next question, will give you an indication of how much time the attorney dedicates to the practice of family law.
- How many other cases do you have pending right now? - If the largest portion of the attorney's case load consists of non-family law matters, this may signal that family law is not at the core of the attorney's practice. However, many attorney's have several areas of specialty and there is an ebb and flow to the type of cases that come in. So, if the attorney tells you his current case load does not consist primarily of family law cases, don't automatically rule him out as not being the right attorney for you.
- What percentage of your time do you spend in court? - The nature of family law is that it requires an attorney to spend a good portion of his time in court. Knowing up front that your attorney may be out of the office frequently when you call will eliminate frustration and misunderstandings. Most attorney try to return phone calls within 24-48 hours. However, if an attorney is in trial, it may take 72 hours or more before you receive a return phone call.
- How often can I expect to be updated on the status of my case? - Many clients expect to get weekly and sometimes even daily updates on their case. Unfortunately, those types of expectations are not realistic. Depending on the complexity of your case, it may take several months for the attorney to prepare it. During the early stages of your case, you shouldn't expect to hear from the attorney more than once every one to two weeks. As your case gets closer to a hearing date, you can expect to hear from your attorney more often. Keep in mind that just because you don't hear from your attorney doesn't mean that your attorney isn't working on your case. It simply means that he doesn't have anything of significance to report to you.
- How much input will I be allowed to have in planning the strategy of my case? - Your attorney's job is to assess your case and to recommend a strategy to help you achieve the best possible outcome under the circumstances. Once you have agreed on your attorney's recommendation, it's his job to implement the strategy. It is your job to assist him in any way he asks, whether it's providing documentation, answering questions, or coming to his office for a meeting. Your cooperation with your attorney is critical to the success of your case. Keep in mind that a responsible attorney will never guarantee the outcome of your case because there are so many intangible and other factors which can come into play and which are completely outside of the attorney's control.
- How much do you charge? - Some attorney's charge by the hour and others may charge a flat fee to handle a family law matter. More experienced attorneys will charge more than less experienced attorneys. Nevertheless, attorney's fees should be viewed as an investment in the outcome of your case rather than an aggravating expense. You are investing in the attorney's competence, skill, knowledge, and experience which will undoubtedly effect the outcome of your case.
This book is meant to be a guide for anyone involved in a family law case in Texas. It is not a do-it-yourself guide, but rather an overview of the process. This book is meant to help you understand what to expect from your attorney and how to go about achieving the best possible outcome under the circumstances.
THE ATTORNEY-CLIENT RELATIONSHIP
The attorney-client relationship is governed by rules and regulations of the State Bar of Texas. At the heart of the attorney-client relationship is confidentiality. An attorney is required to keep any matters he discusses with a client confidential.
Beyond confidentiality, the attorney-client relationship is a fluid and nebulous one. Sometimes the attorney and client feel an instant connection. In such cases, it makes the process very smooth. Other times, there may be little or no connection between a client and an attorney. In these cases, it will be all business between the attorney and the client.
Regardless of the level of rapport between the client and the attorney, it's important that the client have reasonable expectations about the attorney- client relationship as well as the process. First and foremost, regardless of how much you and the attorney may like one another, during the pendency of your case, you must understand that your attorney is not your friend. He is your advocate. He is there to zealously represent your interests. This means that he will counsel you about the law and how the law pertains to your case. This means that he will attempt to find loopholes in the law which can be used to your advantage and to the detriment of the opposing party.
Unfortunately, many clients expect the attorney to react to certain situations as though he has an emotional stake in the case. They mistake an attorney's lack of emotion as indifference or as uncaring when that couldn't be further from the truth. However, the things that transpire during a case which may seem urgent to you are fairly routine to an experienced attorney.
- A father has been granted weekend visitation with his son. He is supposed to return the child to the mother on Sunday evening at 6:30 p.m. When he fails to arrive at 6:30 p.m., the mother calls the attorney and leaves a message. For the next two hours she leaves messages on the attorney's voice mail every 15 minutes. The father, without explanation, returns the child at 8:30 p.m. and the child is perfectly fine. The next morning, the mother calls the attorney again demanding that he call her back immediately. When the attorney returns her phone call, the mother tells him that she wants to file a motion for contempt against the husband for failure to comply with the visitation order.
This example may seem a little extreme, but it happens. So, it's important that the litigants in a family law case understand the difference between disobedience of an order and a violation of an order. Parties routinely disobey orders, but each instance of disobedience does not necessarily warrant an appearance before the judge. On the other hand, a violation of an order will warrant an appearance before the judge. In the above example, if the father did not return the child for three days, failed or refused to inform the mother of the child's whereabouts, and when he finally returned the child, the child was dirty and hungry, it would certainly be cause to seek redress from the court.
As aggravating as a party's disobedience of an order may be, depending on the circumstances, it's simply not always cost or time effective to pursue an enforcement action. You should keep detailed records of each instance of disobedience and use it to bolster your case, keeping in mind that repeated disobedience may rise to the level of a violation.
HOW TO GET THE BEST POSSIBLE OUTCOME
Nothing in life is guaranteed, including the outcome of your case. Your attorney cannot guarantee with 100% certainty the outcome of your case. He can only, based upon the facts of your case, his experience, the law, and how court's apply the law, give a legal opinion of the outcome. If you consult with an attorney who makes any promises about the outcome of your case, do not retain him because he probably isn't very good.
Usually, everyone in a divorce or other family law case loses. However, you can improve your chances of getting a favorable outcome by following some very specific steps. First, preparation is key. Even before you retain an attorney, you should be preparing your case. You should take detailed notes, which include dates, times, the names of the participants, and the names of witnesses, on telephone conversations and events which may be pertinent or relevant to your case. For instance, if you believe your spouse is committing adultery, it's important to gather proof. Take note of any out of character behavior, late night phone calls, or other indicators that your spouse is having an affair. If you are financially able to do so, hire a private investigator to gather proof of your spouse's infidelity.
Your personal notes cannot be used as evidence. However, you will be allowed to refer to your notes to refresh your memory when you are testifying. Because people can't remember the details of events and conversations when they finally get to court, it can sometimes reduce their credibility when they are testifying. If you have detailed notes to which to refer, you will have a more accurate story to tell and your credibility will be bolstered.
It's extremely important to have all of your documentary evidence organized. You will need legal documents, such as the deeds to property, car, boat, and motorcycle titles, documents evidencing other assets you may own such as stocks and bonds, CD's, IRA's, etc., credit card statements, bank statements and other financial documentation, receipts, telephone and cell phone bills, pay stubs, photos, and any other documents which will support your case. If there is a history of domestic violence, it's very important to get copies of police reports and medical reports. If you know of the existence of any documents which could hurt the other party's case, at the very least, make copies of them. If you can get the originals, that's even better because originals are considered “the best evidence”.
Both sides are entitled to discovery. Discovery is a method of gathering evidence about the case and requires both sides to answer questions and produce documents. You may be required to have your deposition taken as well. Having your documentary evidence organized in advance of retaining an attorney, will greatly help your attorney evaluate your case and eliminate some of the stress created by the short amount of time you will have to respond to a discovery request. Additionally, if you have done your homework in advance, it will be much easier for your attorney to evaluate whether the other side is hiding assets or other information which could hurt their position.
Many times, especially in situations where one spouse, usually the wife, has never worked or has not worked for some time, she may have little knowledge of or control over the family finances. So, it's even more crucial to do a little digging to get an idea of what the financial circumstances are. Here's an example:
- A couple had been married for about twelve years when the husband got fired from his job as an insurance agent. The couple had been having marital problems for some time and the wife had become very concerned about the family finances. Over the course of the marriage, the husband had always been very protective of his car and never allowed his wife to have a set of keys. After he lost his job, the wife received a call from the insurance company he worked for and learned that he had been embezzling from the company and in exchange for the company not pressing charges, her husband had agreed to repay several hundred thousand dollars. Well, the wife managed to get his car keys and found all kinds of documents, including fraudulent insurance policies that the husband had taken out in the names of their friends and family members and bank statements for off shore accounts she had no idea existed. Over a period of a week or so, she proceeded to secretly make copies of these documents and ultimately used them to obtain a very nice divorce settlement.
You may feel that this type of activity is snooping and that it is dishonest and unethical. Well, you cannot rely on your spouse to do the right thing, especially in a heavily contested divorce or other family law matter. You must be willing to take responsibility for the outcome of your case and for protecting your own interests and those of your children. If you have an opportunity to get documents or copies of documents which will help your case and hurt your spouse's, do so.
One of the biggest mistakes that litigants in family law cases make is relying upon the testimony of family and friends. There is nothing inherently wrong with having your friends and family members testify on your behalf. However, you will bolster your case if you have professionals testify on your behalf. So, if you or your children have been seeing a therapist, ask your therapist to testify. Your medical doctor, your children's teachers, or your pastor might also have valuable testimony that could help your case. If you believe that any of your witnesses, whether friends, family, or professionals will not voluntarily come to court, your attorney will subpoena them. A subpoena is a court order requiring a party to come to court and give testimony. The court will impose penalties upon any subpoenaed witness who fails to appear.
Either during your initial consultation with your attorney or soon after you retain your attorney, whether it's a divorce case or another family law matter, your attorney will ask you what factors you believe hurt your case. It's imperative that you be honest with your attorney because he needs to prepare for each and every possibility that may arise. So, if you've been unfaithful, tell your attorney. If you've got an addiction, tell your attorney. Your attorney needs to know about any facts or allegations you believe the opposing party will use against you. It's very frustrating for an attorney to find out crucial information about you from opposing counsel and if that happens, it could have a negative impact on your relationship with your attorney. More importantly, though, by withholding critical information, you jeopardize the ability of your attorney to represent you effectively.
Even though judges are supposed to be impartial, they are also human. This means that they come to the table with certain predispositions which can impact how they view the litigants. Statistics show that in certain circumstances, especially when it comes to custody and visitation, men are given less favorable treatment than women. For this reason, Texas law requires judges to evaluate both parents and take into consideration a number of “non-exclusive” factors in making decisions regarding custody and visitation. These factors include:
- the desires of the children;
- the emotional and physical needs of the children presently and in the future;
- the emotional and physical danger to the children presently and in the future;
- the parental abilities of each parent or any other party seeking custody;
- the plans for the children by the parents;
- the stability of the home;
- the acts or omissions of the parents which may indicate that the existing parent-child relationship is not in the best interests of the child; and
- any excuse for the acts or omissions of the parents.
Consideration of these factors is meant to level the playing field between the parties and to make it just as possible for a father to get custody of or more visitation with the children.
Nevertheless, it's important for you to understand how the court may view you and your behavior as it relates to the marital relationship and the parent-child relationship. You must modify your negative behavior or circumstances sooner rather than later in order to reduce or off-set any predispositions the court may have toward you because of your gender. For instance, if you are a father who wants overnight visitation with your daughters and you have allowed your unemployed, drug addicted friend to move in with you while he gets his life together, in order to improve your chances of winning, you will have to change your living arrangements. On the other hand, if you are a mother who, out of spite only, has refused to allow your children's father to visit with them and he has now filed a Petition for Visitation, prior to going to court you might want to consider allowing him to visit with the children. The bottom line is that courts want to see that the parents are more interested in doing what's in the children's best interests than in furthering their own personal agendas.
Many times the parties to a divorce or other family law matter are so emotional about their case that they are unable to think about it reasonably. For instance, a wife will insist that she should get the marital home, but may not have the financial means to pay the mortgage because she works part-time. Or a husband may want custody of his children, but his job requires him to travel 50%-60% of the time. On the surface, these circumstances would preclude the party from getting the desired outcome.
Therefore, it's imperative that you understand the issues of your case and have reasonable options to offer the court. It's not enough to go to court and expect that you'll get what you want just because you want it. If you cannot offer the court reasonable alternatives and justifications to give you whatever it is you are seeking, it's unlikely that the court will give it to you.
So, if the wife in the above example can show the court that she now has a full time job and earns enough to pay for the mortgage, her chances of being awarded the home are better. If she can show the court that she has spoken to a loan officer about refinancing the current mortgage and obtaining a new mortgage in her name, her chances of being awarded the house will increase greatly. If the husband in the above example wants custody of his kids, he must show the court that he has changed jobs or that he is no longer required to travel or that he has made arrangements for the care of his children while he is away in order to improve his chances of getting custody of his children.
The point is that your attorney is not a miracle worker. If you cannot afford to make the mortgage payment on the marital home, there is absolutely nothing your attorney can do to change that. Ultimately, you, not your attorney, has responsibility for the outcome of your case. So, you must be willing to make the necessary changes and sacrifices in order to achieve the best outcome possible. You cannot be idle and simply wait for your case to unfold. You must take a proactive role in your case in order to get the best outcome possible.
How you present yourself in court is paramount to the outcome of your case. Not only should you come to court dressed appropriately, you must behave in a respectful manner to all involved in your case including the opposing party and his or her attorney. Decorum is the order of the day. The chart on the next page shows the do's and don'ts of courtroom behavior.
- COURTROOM BEHAVIOR DO'S
- DO ARRIVE ON TIME
- DO TURN OFF YOUR CELL PHONE
- DO SPEAK CLEARLY
- DO LISTEN ATTENTIVELY AND RESPECTFULLY TO THE JUDGE, OPPOSING COUNSEL, AND ALL WITNESSES
- DO KEEP YOUR TEMPER OR ANGER UNDER CONTROL
- DO BE HONEST AND SINCERE WHEN YOU TESTIFY
- COURTROOM BEHAVIOR DON'TS
- DON'T EAT OR CHEW GUM
- DON'T ADDRESS THE OPPOSING PARTY
- DON'T INTERRUPT WHEN THE JUDGE IS SPEAKING
- DO NOT RESPOND VERBALLY OR WITH BODY LANGUAGE TO ANYTHING BEING SAID
- DON'T BE HOSTILE OR BELLIGERENT WHEN YOU TESTIFY
The issues in family law cases can be very emotionally charged. However, if you fly off the handle because you feel the opposing party is being untruthful, you will lose credibility and ultimately hurt your case. Remember, whether you are having a bench trial or a jury trial, the judge or jury has the duty to weigh your credibility. If you are unbelievable, unlikable, or unsympathetic, it will effect how you are viewed by the judge or jury.
Another important thing to remember when you are on the witness stand is to listen carefully to each question that you are asked and only answer the questions you are asked. In other words, don't volunteer information. Many times, a litigant is so emotionally amped up because he is finally getting his day in court, that he fails to simply answer the questions he's asked. Instead, he volunteers information and goes off on tangents which could hurt his case. Unfortunately, when a litigant is being cross-examined by opposing counsel and does this, his attorney has no means to reel him in.
Under Texas law, you have the right to request a jury trial in a divorce case. Allowing a jury to decide the sensitive issues of your divorce can be very risky. If you choose to proceed with a jury trial rather than a bench trial, during the voir dire or jury selection process, your attorney will attempt to weed out and disqualify anyone who seems to be biased. However, there is no guarantee that you won't have a few angry jurors who still hold grudges against their ex-spouses deciding your case.
Many people are under the mistaken impression that they can successfully represent themselves. Unfortunately, this is simply untrue in most instances because the issues and law are complex and the technicalities of courtroom procedure are complicated. An experienced attorney is an invaluable asset to anyone involved in a family law case. You've got to do a cost benefit analysis and decide whether you want to risk losing your case by representing yourself in order to avoid paying an attorney.
Hiring an attorney is not cheap. However, you should think of it as investment in the outcome of your case. A good attorney will necessarily improve you chances of obtaining a favorable outcome and is well worth the financial investment. After all, you wouldn't hire your landscaper to perform your appendectomy, would you? Of course not. You'd want the best surgeon at the hospital to perform the procedure and you'd expect to pay accordingly. At the end of the day, not hiring a very good attorney could cost you a lot more than hiring one.
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