In practicing law, it is possible for lawyers to "lose their cool" and get adversarial, oppositional, and downright nasty with each other. And, I would go so far as to say that there is a greater chance of seeing this behaviour amongst family law lawyers, than in many other areas of the law. What is the reason for this? I believe that family law clients, who are usually in some level of pain and upset because of what they believe their loved one has done to them, project their emotions onto their lawyers. The lawyers then "take on" the clients' emotions. Often, as lawyers, we feel it is our job to vindicate our clients and to "fix" things for our clients. Some degree of taking on your client's feelings is inevitable, even for the most skilled lawyer, but the lawyer should never lose perspective about the legal aspects of the case and their role in the case.
To deal with some of the inevitable positioning that lawyers do, I would suggest to clients that they choose lawyers who are reasonably comfortable in working with each other. When lawyers dislike each other, feel that they cannot get their point across to the other, and feel suspicious of the other's motives, there is a greater chance that the process will be long and protracted. Ultimately, this leads to higher cost to the client. The lawyer will likely not admit or even be aware that they are adding to the problem instead of the solution by "upping the ante" with the other side.
On the other hand, some of the most seamless, efficient and inexpensive cases I have negotiated have been with lawyers who I knew to some degree. There is a comfort level with working with another lawyer who you know. The inherent suspicion that a lawyer may have for the lawyer on the other side isn't there. (This does not mean that I have not had great experiences working with lawyers who I did not know before, but there is some time spent becoming familiar with that other lawyer and how they operate.)
I do realize that in many cases, clients do not coordinate with each other before choosing their lawyers. However, there are cases where one client obtains representation before the other. In such a case, it would be wise for the first client to ask their lawyer who they can refer their spouse to. Most lawyers would be delighted to provide names of colleagues who they enjoy working with or who they'd like to work with.
Some clients may not want their lawyers to be friendly to each other. They feel that they would be better protected by a lawyer who disliked the other side as much as they did. However, nothing could be further from the truth. Just because two lawyers are friendly towards each other does not mean that they will not take their job seriously and seek the best solution for their respective clients. I find that in working with colleagues that I know, there is a greater ability to take things less personally, greater sympathy for each other's clients and a willingness to work harder to meet both clients' objectives. And...this translates to lower legal fees and less frustration for the clients.
Thursday, December 11, 2008
Sunday, August 24, 2008
Choosing the Right Lawyer
It's a difficult choice choosing the right lawyer. There are so many lawyers out there, how do you choose the right one for you?
Here are a couple of suggestions I have:
1. No lawyer is going to be able to suit every type of client. Like clients, lawyers have certain values which they place in high priority, and other values which they do not. For example, a lawyer colleague of mine values "a quick resolution", he is a "tough litigator" and he "gets to the point quickly". Ensuring that his client does not get taken advantage of is a high priority for him. Another colleague of mine values "knowing the law", she ensures "all the i's are dotted and all the t's crossed"and she is "careful". Ensuring that an agreement or deal is "rock solid" may be of high importance for her. Finally, another colleague values "supporting the client through the process"and he "holds the client's hand through the process". Returning a client's phone call (which lawyers are notorious for not doing) is a high priority for him. My point is that you must decide what values you have and match them with a lawyer who shares those values for the job that needs to get done. I appreciate that this is extra effort, but it can save you time and money in the long run. When you call a lawyer on the telephone, ask them what their personal style is in resolving a case. What do they value in their work?
2. My personal belief (and I'm sure there are many lawyers who will disagree with me) is that a lawyer who specializes in an area of the law will provide better quality service than one who is a "generalist". There are many lawyers who practice a few areas of law at the same time. In addition to family law, they may practice immigration, real estate, employment law, etc. There are many great lawyers who can practice all of these areas with equal competence and skill. However, there are also a few lawyers who cannot keep up with changes in each area of the law. So, beware...
3. A lawyer who has been practicing for a few years will provide better quality service...to a certain extent. In general, you do want to choose a lawyer who has a few years of experience under their belt. They have to know what they are doing, and whether they do or not will become obvious, at least, when you have your first consultation with them. However, after a few years of practice, I feel that most lawyers are on an equal footing. In other words, a lawyer who has been practicing for 15 years should provide the same quality of service as a lawyer who has been practicing for 30 years. I'd also like to say that there are lawyers who have been practicing for 2-3 years who provide a fresh perspective and tenacity to a case, which a senior colleague cannot provide. And, it is the senior colleague who provides grace and wisdom to a case, which an inexperienced lawyer cannot provide. Again, years of practice is a good thing...to a certain extent.
4. Choose a lawyer you can afford. This goes without saying. Most lawyers charge on an hourly basis. (I personally believe that, except for simple matters, you are best to steer clear of lawyers who charge a flat fee for a family law matter. Cases vary so greatly in terms of the time they take to complete.) Clients often ask me how long and how much it will cost to resolve their case. I tell them that I do not know, and that it depends on how quickly they and their spouse can come to agreement. However, I am able to give them a range of how long an average case of mine will take and how much an average case will cost. So, in addition to asking a lawyer what his/her hourly rate is, make sure to ask what their average cost of completing a case would be.
Hope that helps.
Here are a couple of suggestions I have:
1. No lawyer is going to be able to suit every type of client. Like clients, lawyers have certain values which they place in high priority, and other values which they do not. For example, a lawyer colleague of mine values "a quick resolution", he is a "tough litigator" and he "gets to the point quickly". Ensuring that his client does not get taken advantage of is a high priority for him. Another colleague of mine values "knowing the law", she ensures "all the i's are dotted and all the t's crossed"and she is "careful". Ensuring that an agreement or deal is "rock solid" may be of high importance for her. Finally, another colleague values "supporting the client through the process"and he "holds the client's hand through the process". Returning a client's phone call (which lawyers are notorious for not doing) is a high priority for him. My point is that you must decide what values you have and match them with a lawyer who shares those values for the job that needs to get done. I appreciate that this is extra effort, but it can save you time and money in the long run. When you call a lawyer on the telephone, ask them what their personal style is in resolving a case. What do they value in their work?
2. My personal belief (and I'm sure there are many lawyers who will disagree with me) is that a lawyer who specializes in an area of the law will provide better quality service than one who is a "generalist". There are many lawyers who practice a few areas of law at the same time. In addition to family law, they may practice immigration, real estate, employment law, etc. There are many great lawyers who can practice all of these areas with equal competence and skill. However, there are also a few lawyers who cannot keep up with changes in each area of the law. So, beware...
3. A lawyer who has been practicing for a few years will provide better quality service...to a certain extent. In general, you do want to choose a lawyer who has a few years of experience under their belt. They have to know what they are doing, and whether they do or not will become obvious, at least, when you have your first consultation with them. However, after a few years of practice, I feel that most lawyers are on an equal footing. In other words, a lawyer who has been practicing for 15 years should provide the same quality of service as a lawyer who has been practicing for 30 years. I'd also like to say that there are lawyers who have been practicing for 2-3 years who provide a fresh perspective and tenacity to a case, which a senior colleague cannot provide. And, it is the senior colleague who provides grace and wisdom to a case, which an inexperienced lawyer cannot provide. Again, years of practice is a good thing...to a certain extent.
4. Choose a lawyer you can afford. This goes without saying. Most lawyers charge on an hourly basis. (I personally believe that, except for simple matters, you are best to steer clear of lawyers who charge a flat fee for a family law matter. Cases vary so greatly in terms of the time they take to complete.) Clients often ask me how long and how much it will cost to resolve their case. I tell them that I do not know, and that it depends on how quickly they and their spouse can come to agreement. However, I am able to give them a range of how long an average case of mine will take and how much an average case will cost. So, in addition to asking a lawyer what his/her hourly rate is, make sure to ask what their average cost of completing a case would be.
Hope that helps.
Tuesday, July 8, 2008
The Importance of Written Agreements
When clients separate, one of the questions which they consider is whether they should have lawyers involved in the separation process. The response I give clients is that it is not a requirement to have lawyers involved in the process, but that it is strongly advisable to have a legally binding written separation agreement (which requires lawyers to be a part of to make happen). Here's why: A written agreement sets out the terms of the settlement (ie. who will get what in terms of property division, child support, spousal support and parenting). Of equal importance, is that a written agreement provides "release provisions" which finalize and set in stone the terms of the separation. For example, once an agreement is signed, a spouse cannot (in general) reopen discussions related to the issues dealt with in the agreement. The risk of not having an agreement written down is that a spouse may come back months or years later and reopen separation negotiations claiming that they are not happy with the deal they got.
Lawyers help with the drafting of that legally binding written separation agreement. How do lawyers help to ensure that an agreement is "legally binding"? They give their clients legal advice about what they are signing (ie. how their agreement stacks up against what they could get under the legal model), they focus their clients on issues that they did not consider, and they sign the certificate of independent legal advice found at the end of the separation agreement. (The certificate states that the lawyer has provided full advice to his/her client and that the client understands the advice, that the client is signing the agreement voluntarily, and without duress.) If an agreement is signed without the benefit of independent legal advice, it can be overturned quite easily by a court.
So, what I am trying to say is that a legally binding written separation agreement is a must in my mind for clients to have piece of mind. And, in order to ensure that the agreement is legally binding, clients do need the assistance of lawyers. If clients want to economize on legal fees, they can settle the terms of separation themselves and simply have the lawyers draft the agreement. (But they need to be open to what the lawyers will say to them about the deal that they negotiated on their own, so it is useful to check in with your lawyers to remain well-informed.)
Hope that helps.
Lawyers help with the drafting of that legally binding written separation agreement. How do lawyers help to ensure that an agreement is "legally binding"? They give their clients legal advice about what they are signing (ie. how their agreement stacks up against what they could get under the legal model), they focus their clients on issues that they did not consider, and they sign the certificate of independent legal advice found at the end of the separation agreement. (The certificate states that the lawyer has provided full advice to his/her client and that the client understands the advice, that the client is signing the agreement voluntarily, and without duress.) If an agreement is signed without the benefit of independent legal advice, it can be overturned quite easily by a court.
So, what I am trying to say is that a legally binding written separation agreement is a must in my mind for clients to have piece of mind. And, in order to ensure that the agreement is legally binding, clients do need the assistance of lawyers. If clients want to economize on legal fees, they can settle the terms of separation themselves and simply have the lawyers draft the agreement. (But they need to be open to what the lawyers will say to them about the deal that they negotiated on their own, so it is useful to check in with your lawyers to remain well-informed.)
Hope that helps.
Thursday, May 29, 2008
A Kinder and Gentler Marriage Contract by Philip Epstein
Have a look at this article by prominent Toronto family lawyer Philip Epstein:
http://canada.lawyers.com/lawyers/A~1038924~/A+KINDER+AND+GENTLER+MARRIAGE+CONTRACT.html
The article talks about how lawyers and clients should negotiate cohabitation and marriage contracts in order to avoid misunderstanding and upset during the process. In the same vain that collaborative practice advocates that clients and lawyers do all negotiation in the context of four-way meetings, Mr. Epstein suggests that marriage contracts should also be arrived at in the same manner. The traditional process is to have a client's lawyer simply draft up an agreement and then send it to the client's spouse and his/her lawyer for review. The difficulty here is that the spouse's lawyer's instinctive reaction is to make changes to the agreement. (How else do lawyers justify their existence??) As Mr. Epstein writes, it is "far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting."
http://canada.lawyers.com/lawyers/A~1038924~/A+KINDER+AND+GENTLER+MARRIAGE+CONTRACT.html
The article talks about how lawyers and clients should negotiate cohabitation and marriage contracts in order to avoid misunderstanding and upset during the process. In the same vain that collaborative practice advocates that clients and lawyers do all negotiation in the context of four-way meetings, Mr. Epstein suggests that marriage contracts should also be arrived at in the same manner. The traditional process is to have a client's lawyer simply draft up an agreement and then send it to the client's spouse and his/her lawyer for review. The difficulty here is that the spouse's lawyer's instinctive reaction is to make changes to the agreement. (How else do lawyers justify their existence??) As Mr. Epstein writes, it is "far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting."
Wednesday, May 7, 2008
The first entry
Welcome to my blog. I am a collaborative family lawyer and family mediator practicing in the city of Toronto. Stay tuned for interesting articles and links dealing with my practice.
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