My Philosophy of Practice

I wanted to provide a little more information about the philosophy of my practice. This will give you some insight into how I assist my clients through their separation.

I assist clients with the legal aspects of their separation by helping them to reach settlement outside the court process. The reason that I don't represent clients in family court anymore is because, inherent in the litigation model, is the concept of someone being right, and someone being wrong. I see people as having legitimate interests and needs which, when obstructed, cause them to take a hard position. Enter the lawyer and the court system. Unfortunately, the litigation process can have the effect of polarizing separating spouses. Instead of helping spouses to understand and acknowledge each other's legitimate interests and needs, they can become more positional as their lawyers trade legal positions. Once the dust is cleared after a hard won battle (either on paper or in court), few victorious spouses feel truly vindicated, especially if they need to continue to maintain communication with their spouse (perhaps, because of the children). I often ask my clients with children, "If you are having difficulty communicating now, can you imagine how difficult it will be to communicate with each other regarding the children after you've fought each other in court?"

The process that I most commonly use to help my clients reach settlement outside the court process is focusing them on where their interests lie, instead of what their positions are. When we look at our interests, we are looking at what are needs and values are, without going so far as thinking about how we will achieve that need. When we look at positions, we are talking about taking a specific stance because we have already decided how we will achieve our need. For example, a positional statement might be "I want to remain living in the house after separation". An interests-based statement might be, "The house is close to where I work and where the children go to school. Living close to where I work is important to me." Once parties focus on their interests instead of hard positions, there is an opportunity to carve out solutions that might work for both of them. Of course, throughout the process, my role is also to educate my client regarding what the law says about any one particular issue.

You may be saying to yourself that the approach I am describing is fine in an ideal world, but it would not apply to you and your spouse because the communication between the two of you has deteriorated beyond repair. It is certainly true that there are cases where litigation is absolutely necessary (in cases where there is violence, a profound distrust or a severe power imbalance between spouses), however, my experience has been that the vast majority of separating couples could benefit from a non-adversarial process. I say this because a non-adversarial approach is not strictly reserved for amicable, low conflict separating spouses. It is also suitable for separating spouses who have found themselves in a higher conflict situation. In such cases, it simply means that the lawyers need to strategize more carefully about how best to facilitate the negotiations between their clients. It also means that the lawyers will need to do more coaching with the clients (sometimes with the use of family professionals) regarding how to avoid escalating the conflict. In my opinion, it is still well-worth it (both emotionally and financially) to work within a non-adversarial process to resolve separation issues.

Legal Fees, legal fees, legal fees

I wanted to write in today about what we lawyers are known for -- charging legal fees(!). As you might be aware, clients are sometimes not very happy with the fees their lawyers charge. In the area of family law, I find that clients experience a "double whammy" in that they are (often)dealing with one of the most disappointing aspects of life (ie. separating from a spouse) and, at the same time, are needing to pay quite a bit of money to a lawyer to help them resolve the legal aspects of their case. I wholeheartedly agree that lawyers need to charge reasonable rates to their family law clients -- family law clients are not corporations with potentially deep pockets, they are individual members of society. I also think that clients need to be reasonable in their expectations of their lawyers and how fees are charged.

In general, lawyers charge on an hourly basis for all work they do on a case for a client. This means that if a lawyer spends a few minutes confirming something on the telephone with you, that lawyer will usually charge you for that time on the phone. (Of course, I know alot of lawyers, including myself, who don't charge for every last thing they do for a client.) It is important for clients to be aware of how much time they are spending on the phone with their lawyer and how much work they are allocating to the lawyer to do. If you want to keep your lawyer's fees down, here are a few tips:

1. Try and "batch" the ideas and issues that you want to speak to your lawyer about and then call your lawyer. In other words, minimizing the number of phone calls and e-mails with your lawyer will save you alot in legal fees. Ask questions and discuss issues in one sitting. Write down the legal advice that your lawyer provided you so that you are not discussing the same issues over and over again.

2. Some lawyers charge to simply play "telephone tag" with their clients or to listen to voice messages left by their clients. It is a good idea to set up dates and times to speak to your lawyer to avoid the "telephone tag" and the corresponding fees charged.

3. Understand that the more work the lawyer is in charge of doing, the more time the lawyer will take and bill you for. If you can volunteer to obtain some documents by yourself or do some non-legal work yourself, you will minimize the fees. Now, the lawyer cannot delegate "legal work" to you or assume that you will research the legal issues by yourself, but there are often items that you can help with.

4. Try and be organized regarding your documents. Ask your lawyer for a list of documents they need for their case, write this list down, and gather the information, and provide it to your lawyer in one batch. Your lawyer will be so impressed! If your lawyer has to nag you for documents, they will charge you for it.

5. Also understand that the more conflictual a case is, the longer it takes to resolve, and the higher the legal fees. If you are able to take some of the work off your lawyer's plate by discussing some issues with your ex-spouse, you will greatly streamline the fees. In a recent case I had, the other lawyer and I were mired in lengthy negotiations regarding how to resolve a particular legal issue. Our clients quickly discussed the issue together, determined how best to resolve it, and instructed us how they wanted it resolved. It was a brilliant example of clients taking the reins of the case and it saved them quite a bit of fees (and it put us lawyers in our places too!).

6. Review your lawyer's account carefully. Yes, sometimes lawyers (and their staff) make mistakes in their billing and it might cost the client.

A final note: Many clients initially ask me how much it will cost them and how long it will take to complete their case. Although I can give clients a very rough estimate of what the cost might be and how long their case will take to complete based on previous cases I have done, each case is very individual. Ultimately, how much a case will cost and how long a case will take to complete is dependent on how much work you do yourself and how willing you and your spouse are to work together to reach agreement quickly and efficiently. What I tell my clients is that I am committed to keeping them informed about their accounts every step of the way and am willing to discuss how the legal fees can be kept down.

New Book Worth Reading: "Tug of War" by Justice Harvey Brownstone

I wanted to recommend Mr. Justice Harvey Brownstone's new book. It is called "Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court". Yes, the title does say alot about the book. I'm recommending this book for two reasons: a) because it talks about some of the horrors of family court litigation from the perspective of a family court judge who has seen it all; and b) because it provides alot of very useful information about family law in very layman's terms.

Perhaps the most salient paragraph for me from Justice Brownstone's book was the following passage on page 3:

What is the difference between the couples who settle their disputes privately and those couples who require a judge to make decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person's maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we
see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don't see very often in our clientele is maturity.

Justice Brownstone's book is available through http://www.ecwpress.com/

The Good Divorce

The Toronto Star published an article today called, "The Good Divorce". You can link to it here:
http://www.parentcentral.ca/parent/article/563058.

In addition, check out a CBC special tonight at 9 p.m. (EST) entitled, "How to Divorce and Not Wreck the Kids". (I will post a link to the video replay as soon as I get it.)

Happy New Year everyone.

When Lawyers Like Each Other

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.

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.

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.