HOW TO CHOOSE A RESPONSIBLE DIVORCE LAWYER AND AVOID THE DIVORCE LAWYER FROM HELL
by Faith Jansen, J.D., Divorce Mediation and Settlement Negotiation Attorney
California courts may hold a client accountable for the bad behavior of his or her lawyer and order the client to pay sanctions and attorneys fees. In a case out of Sonoma County in 2011, In re the Marriage of Davenport (2011), 194 Cal.App.4th 1507; 125 Cal.Rptr.3d 292, the appellate court ordered Party A to pay Party B $100,000 in sanctions and $304,387 in attorneys fees where it concluded that the egregiously uncooperative behavior of Party A’s lawyer frustrated settlement of the case in violation of Family Code Section 271. Fortunately, Party A was not rendered homeless, since the overall value of the marital estate was $57 million. Even so, it was a huge cost to Party A, caused entirely by Party A’s own lawyer.
The message of Davenport is that clients should be careful of what type of lawyer they hire because their attorney’s misconduct may be imputed to them, meaning that any sanctions and attorneys fees ordered pursuant to Section 271 will be paid by the client, not by his or her lawyer. The good news is that very few lawyers behave as badly as the one in the Davenport case. The bad news is that even well-mannered lawyers often frustrate settlement of a case, to their client’s financial detriment, simply by not studying the case’s documentation in its early stages.
Clients have a right to responsible and effective delivery of legal services from lawyers. In some cases, effective lawyering will require litigation procedures to obtain the necessary information and documentation. In other cases, where both sides have all material information and documentation, effective lawyering means devoting substantial efforts to settling the case early, before investing in the cost of preparing for trial. In yet other cases effective lawyering will mean recommending that the client use non-adversarial processes such as mediation, cooperative divorce, or collaborative divorce.
One may still encounter an “old school” type of divorce litigator who serves many discovery demands, obtains a lot of documents, but puts off studying those documents until the eve of trial. This procrastination frustrates settlement of the case because the lawyer cannot make or evaluate a settlement offer since he or she lacks a comprehensive understanding of the case.
A responsible lawyer will sit down with the client at the outset of the case, study the documentation which is available so far, and quantify the value of any assets which the client believes are missing. He or she will then give the client a reasonable estimate of the cost of formal discovery procedures designed to search for these apparently missing assets along with an estimate of the cost of going to trial to present the evidence to the court. The responsible lawyer will thereafter engage in necessary discovery, rigorously study the documentation obtained from it, and periodically meet with the client to provide a cost-benefit analysis, evaluating whether it makes sense to continue litigation or whether it is time to put together a settlement proposal. In some cases the decision will be to continue litigating to trial, but most cases settle before trial.
It is not uncommon for a client to spend a lot of time and money litigating a case and realize at the end that he or she would have done better economically if the case had settled much earlier. The sooner that lawyers on both sides of a case develop familiarity with the documentation instead of just possessing it, the sooner they may engage in good faith settlement negotiations. A client may clearly communicate to his or her lawyer that this settlement oriented approach is desired.
When meeting with a lawyer in an initial consultation, a prospective client should ask: (1) How does the lawyer determine how much discovery is appropriate for any given case? (2) Does the lawyer take the time to study documents as soon as they are obtained from discovery instead of waiting until a court settlement conference or trial date has been set? (3) How often does the lawyer have a conference with the client to do a cost-benefit-risk analysis evaluating whether the cost of discovery will yield a net gain for the client? and (4) How early in the case will the lawyer study all the documentation and put together a settlement proposal for the client to review, approve, and authorize the lawyer to present to the other side?