Litigation Coaching in Family Law Cases

When you hire a litigator, whether s/he is working on an hourly fee basis or a contingency fee basis, s/he has a financial interest in your case. Family lawyers almost always work on an hourly-fee basis, if for no other reason, because there are ethical rules prohibiting lawyers from working on a contingency basis in most family law cases.

 Clients is family law cases are typically concerned about whether their lawyers are really trying to settle their cases or just keeping the clock running.

As a mediator, I have seen lawyers go to great lengths to sabotage a settlement. I was a mediator once in substantial divorce case. Just before the mediation, one of the lawyers pulled me aside and told me that this was his only case, and there was no way he was going to settle it. His client had no idea. See what I mean?

Many family lawyers simply do not try too hard to settle cases. I have always attributed my high settlement rate in family law cases, as an advocate or a mediator, to the fact that I simply put forth more effort to settle my cases. Unlike many family lawyers, I have never appreciated the uncertainties of leaving a result up to a busy trial judge; and, I cannot recall having a client who really wanted to take the witness stand.

With little thought to the stress on the client, many family lawyers take a case to trial because they enjoy performing, make more money trying a case than settling it (if they get paid), and the more cases you try, the more likely it is that you will qualify as a specialist.

I am not sure what the rules of specialization are these days, but there was a time when in order for a family lawyer to become “board certified” as a family law specialist, he had to try at least one jury trial. This became a standing joke at the courthouse. When a young lawyer paid a jury fee on a case, many times it was so that he could pass the board certification requirements; it had little to do with the needs of the client.

How can having a litigation coach change any of that?

A litigation coach does not have a financial interest in your case. You typically pay him or her a fixed fee, and s/he helps you evaluate your case and make decisions, knowing that, unlike your lawyer, s/he will not make more or less money if you settle or go to a jury trial. Another way to look at it is that a litigation coach is someone who gives you a second opinion.

Among other things, litigation coaches can help you: 

o   evaluate your attorney’s strategy and performance when compared to your goals;

o   decide when and how to negotiate a settlement (sorry to say that it has been my experience that most lawyers have poor negotiating skills);

o   help you prepare for mediation (also a common weakness for litigators);

o   decide whether a motion needs to be filed and whether it is worth the cost of a hearing;

o   decide how to budget your litigation dollars;

o   decide whether the cost of going to trial is worth the risk; and,

o   understand legal nomenclature and typical procedures.

Case study

H and W were divorcing after a two-year marriage with no children.

W had a job that paid a modest salary. She had accumulated a little retirement during the marriage. H wanted his share of that. 

H had been a much higher income earner, but he refused to disclose any financial information about property in his possession.

After spending over $10,000 in attorney’s fees, W felt like she was stuck. All she wanted to do was get divorced, but she could not even evaluate her case without a disclosure from H of his assets and liabilities. This is typically a relatively easy exercise, but, for some reason, her attorney was not getting it done. 

 The stress of going through a divorce with a narcissistic man is bad enough, but having a lawyer in whom you have little or no confidence, who cannot move the process along, is an especially stressful situation.

W saw my “Anticipating Divorce” booklet on tnoblelaw.com and hired me as her litigation coach.

After five sessions (cost = $500), and talking to several other lawyers to whom I referred her, W fired her lawyer and hired someone else.  As of this date, as far as I know, she is still not divorced, but she now has a lawyer in whom she has confidence.

If you are stuck in the family law litigation process, wonder what in the heck your lawyer is doing, or just want a better understanding of the process, call me for a free consultation.