Alabama Family Law Blog

I am frequently asked by prospective divorce clients if I will be aggressive... or a pit bull... or a shark.  They phrase it differently.  But, many folks facing divorce think that what they need is the most aggressive divorce lawyer in Alabama (or whatever jurisdiction they happen to be in).

In my years of divorce practice I have seen lots of lawyers handle divorce cases.  There are as many different styles as there are different lawyers.  But, I have also noticed three recurring styles of lawyer in particular.  I call them the lamb, the pit bull and the fox.

The lamb is the lawyer that just sort of goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the pit bull, who is exactly the opposite.  They hate to settle cases.  In fact, some of them won’t do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”   The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  And, so they work hard to maintain that reputation because it makes them a lot of money.  

The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests.  Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals.  They act only on instinct.  When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).

The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client.  Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the pit bull and the fox.

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs.  Instead, find yourself a fox.

Yes, ultimately it is your decision to work with the lawyer you choose.  But, you should understand that switching lawyers in the middle of the case can (and likely will) costs you more money and may lead to delays in getting the case to trial as the new lawyer has to get up to speed.

You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice).  You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared.  It does happen.

Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.

Only those fees paid to your divorce lawyer that are directly attributable to tax advice and/or related to the production of taxable income (such as alimony) can be deducted. 

You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income.  If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.

If you have specific quesitons related to this issue in your case, talk to your lawyer or tax advisor.

This is a question you should ask your lawyer at the initial consultation. If you are working for a lawyer that charges fixed fees like our firm does (also known as flat fees), then they can tell you exactly what the fee will be. But, even if you are working with a lawyer that charges by the hour they should be able to give you the amount of their hourly rate, the amount of the retainer and a reasonable estimate of the total fees that will be incurred. If they can't or won't then go somewhere else.

In fact, I would not hire a lawyer that is not willing to represent you in a divorce on a fixed fee. I have a strong opinion about fixed fees vs. hourly billing. I am currently putting an article together that will go into this in much more detail, but I will speak very briefly to the issue here.

Why would you hire someone to handle your divorce case that can't quote you a specific, total fee? Many lawyers will say they can't quote a flat fee on a divorce because there are too many variables to accurately estimate a fair fee. That is nonsense. There are many variables involved in building a house, but when you contract to build one, there is a set price established on the front end and agreed to by both parties. If there is unforeseen work needed, a change order is prepared. Simple, effective, fair.

The bottom line is that hourly billing (coupled with the high pressure put on lawyers to bill more hours) places an incentive on a lawyer to engage in protracted litigation. That is not in the client's best interests (particularly in the emotional turmoil of a divorce). Additionally, the client must feel like they are writing a blank check to the lawyer (because they are). Not to mention the fact that with hourly billing you are charged (usually in 6-15 minute increments depending on the lawyer) for every phone call, every e-mail, every meeting, etc. Is that any way to encourage open communication (which is absolutely necessary for effective representation)? Of course not.

I guess you get the point. My advice is not to hire a lawyer that is not willing to work on a fixed fee basis. I realize that is a controversial statement. It is one with which many of my fellow lawyers would vigorously disagree. But, I have been working on a fixed fee basis for over 10 years. I have been doing it exclusivley for about 3 years. My clients love it because it takes away an unknown factor, it allows open, regular communication, and they never recieve a $150 bill for a 30 minute phone call. I love it because I can focus less on tracking my time and more on resolving my clients problems (not to mention there are no such things as accounts receivable in my office).

Choosing the right lawyer is vital to the satisfactory resolution of your divorce or family law case. In my opinion, there are three main things you should look for in making your decision:

(1) Expertise - You should hire a specialist, not someone who dabbles in divorce work. The area of family law has become increasingly complex. A lawyer that tries to do a number of different practice areas cannot develop the depth of knowledge necessary to represent you in such a critical and complex matter as a divorce. The analogy to medicine is apt - if you need brain surgery, you don't go to a general practitioner, you go to a specialist. In a divorce case, the stakes are high - you are determining what will happen to your children, your house, your retirement and your income for starters. That sounds more akin to brain surgery than to a chest cold to me.

Many of our clients ask whether or not they can bring a friend or a relative with them to the meeting with me. This is usually not a good idea.

The conversations that a lawyer and client have with one another are generally confidential. However, if another person is present during those conversations, it loses its confidentiality. That means you and/or the person that accompanied you to the meeting could be compelled to disclose what was discussed.

Additionally, it is better for only the lawyer and the client to talk so that the discussions can be more candid. The issues discussed in a divorce case will often involve some of the most intimate details of your life. You may not be comfortable discussing these in front of your friends or family members, but they are essential for the lawyer to be able to best represent you.