Litigating Family Law Claims: “Who Ya Gonna Call?”

As many of you know, I began my legal career in Eastern Kentucky. I have fond memories of the people of that region, the incredible landscape, and my early days as an attorney. Those days included three trials defending clients accused of murder and three trials prosecuting accused murderers. I think of that time as my John Grisham years, often facing twelve of my fellow citizens in the jury box, standing room only in the courtroom, and very distraught families. Many late nights were spent in smoke-filled rooms reviewing grisly photos and working with private investigators and detectives to locate recalcitrant or just plain scared witnesses. I can still hear the relieved gasp of the gallery, when, in my last trial as a prosecutor, the jury foreman read out “not guilty” on the charge of murder, and then the whaling cries of those same family members as I asked the Court to have the defendant taken into custody—over the clamor they had not heard the “guilty” on the reckless homicide charge. That early start prepared me for 35+ years now of what, as a term of art, is called high conflict divorce litigation. These are the family law cases that are going to trial. End of story. Both parties have the resources to fight, children are involved or significant assets, and often both. Settlement, while always preferred, will not happen. If you are in one of these cases, or believe you are likely to be, first, you have my sympathy. They can be every bit as traumatic as a murder trial. And, as in the case of a murder trial, who you choose to represent you will mean the difference between a result you may not like but that you can live with, and a result that will haunt you for years to come. So what should you look for in a family law litigator?

Talking to your friends can be helpful, but did they really have a situation like yours? Rarely are two divorces quite the same. Online comments about a lawyer can be helpful, but remember, anyone can say anything online. I suggest you not place a lot of reliance on either of these sources. The reality is that there is nothing more informative than a face-to-face meeting with your prospective advocate. But, before that meeting, research their credentials. Are they a member of the American Academy of Matrimonial Lawyers or certified by The National Board of Trial Advocacy? These organizations vet their members and require testing and multiple peer and judicial references before applicants are granted admittance. Members of these national organizations often command a higher hourly fee, but with good reason. They are top-tier litigators. Both they, and their offices, are set up for litigation. They know how to fight in a courtroom and, just as importantly, they know when not to fight. When you are in the offices of the lawyer you are interviewing look around. Do things seem largely organized? Although some excellent lawyers have files piled everywhere that is not the norm. A well-executed trial is like surgery, and the environment for its preparation like an operating room. Would you hire a doctor if you went to their office and saw body parts and remnants from other patients and earlier procedures laying around?  Not likely. When interviewing a prospective divorce lawyer, ask how often they are in trial—not just fifteen-minute hearings, but when was the last time they were in a half-day or longer trial—and were the issues the same or similar to the ones you are facing? Like any skill, the more repetition the better you get. And good lawyers like to talk about their battles, so you will not be offending them with the question. If you sense you have, take note. The response you want to hear is that they are in half or full day trials at least 4-6 times per year. Do they have a paralegal, and will you be working with that person? Can you meet them? No experienced trial lawyer works alone—none. The volume of information that must be gathered and organized simply makes that impossible. Another important question is availability. Good trial lawyers are very busy people. Does the lawyer you are talking with, and leaning towards, have time right now for your case? Some of the most critical things that happen in a divorce case happen in the first two months of the case being filed, that is when initial orders get set. If they do not have time for you they will be honest about that. They have a reputation to protect so they are not going to add another case if they cannot perform up to their standards. If the advocate you would like to hire cannot take your case, ask who they would recommend. Good lawyers know the other good ones and they take referrals seriously. After interviewing multiple attorneys, the same referral name may keep coming up. That’s a sign—go talk with that attorney. Remember, the lawyer you are talking to is interviewing you as well, and trying to determine if your case and your personality would be a good fit for them. These are just a few considerations when interviewing a divorce litigator. Here is a link to Divorce Magazine, which I have no financial interest in. It has more good tips for how to choose your divorce lawyer.

Why do you want a top-notch divorce litigator handing your family law matter, the best you can afford? Because while you may think you want a big fight in court—you don’t. What all of us who try these kinds of cases regularly know is that a courtroom is a very dangerous place to be. And, while we will do a very good job for you trying to control the outcome, if we must go into that arena our real value is often in helping you to resolve your claims by agreement—peace through strength is our approach. Remember, the overarching goal of all litigation is to get you past the current crisis and in a position to get on with your life, comfortable in the knowledge that you protected yourself and your children as best you could.