To Hire Or Not To Hire An Attorney

© 2012 Marvin L. Chapman, PsyD, LMFT, CFC
All Rights Reserved

In California, if you appear in court and represent yourself it is called going In Pro Per, which literally means “In one’s own proper person.” Some states call it Pro Se, which literally means “For one’s own behalf, in person.” No matter what your state may call it, it means you are representing yourself in court. Many people have handled their own family court case, with just a little help in doing the required court paperwork.

If it appears your family court case will be fairly straight forward, without a lot of serious disagreements between you and the other side, and if you are comfortable speaking in front of people, then you may be a candidate for representing yourself.

Most people represent their own interests simply because they cannot afford an attorney. Some people represent themselves because they have been represented by an attorney in the past and believe they can represent their own interests as well, if not better, than their prior attorney. And there are those who represent themselves because they feel that even if they lose, they will have won by not having to pay the high costs of an attorney (some people believe not paying an attorney is winning).

Reality is that many cases require an attorney. An example of a cases requiring an attorney would be cases where there are major issues of custodial timesharing and where there are serious differences over financial issues (property and support). These kind of cases mandate an attorney; and, it would be prudent for you to retain the best attorney you can afford.

Whether or not you hire an attorney it remains your responsibility to keep your case organized, to keep yourself updated on all happenings in your case, and to continually stay informed as to all facts

The following two sections are presented solely to assist you in determining whether or not you will want to attempt to represent yourself and, if you choose to involve an attorney, some guidelines to assist you in determining which attorney is best for you. You may want to check your state and local rules, regulations, and procedures to discover whether the following ideas are valid in your area.

If Representing Yourself

1. If you can, get hooked up with a good nonprofit organization. The information and education about the local court system will be invaluable to you.

2. Visit the local family courthouse and observe the procedures in the courtroom. Divorce hearings are open to the public and you are allowed to go in and watch. Paternity actions are usually considered quasi-confidential hearings and therefore you probably would not be allowed to stay. However, the process and procedures are basically the same for both, so if you have a paternity action you can gain the information needed by observing a divorce hearing. While in the courtroom, take notes, study what is happening and why, check out how the judge reacts to certain questions or answers and observe communication styles of the different participants. If questions as to why you are there tell them the truth, you have a hearing coming up and you wanted to see in advance what it was all about.

3. After the courtroom visit, meet with your advisor or coach to go over any questions which arose from your observation of the divorce proceedings.

4. No matter what happens during the process of representing yourself, never react to the situation. Take a moment to assess what is happening and then act upon it, never ever react. It is almost always fatal for us as males to react instead of proactively acting upon.

5. You and your case will survive the experience in much better shape if you stay out of the gutter, no mud slinging and no disparaging remarks – no matter what.

6. Your future lies in how strong and bold you are able to present your facts to the court, not in how well you react to the allegations from the other parent. Stay in your strength and power, be confident, self-assured and positive. Then, and only then, will you be able to walk away from this experience with your self-respect, self-worth and dignity still intact.

If Hiring an Attorney

1. One of the best ways to choose an attorney is to either get a recommendation from your local father’s rights organization or check with family, friends and co-workers. Hiring a family law attorney is just the opposite of hiring a criminal attorney. If hiring a criminal attorney, you want the best legal mind you can afford. Family law is just the opposite. Family law is almost totally subjective feelings and biases. In family law you are hiring a personality, someone you can get along with and who is passionate about your case and your goals.

2. Nothing is worse than a personality clash with the attorney you hired to protect you. This is your and your children’s future. During the initial consultation you will need to make a sound intelligent decision based heavily on whether or not you feel and believe you can work as a team member with the attorney. Remember, your attorney is in the driver’s seat and you need to feel very comfortable with them at the controls of your future. Therefore, when I interviewing a family law attorney, you may want to consider A. Things to look for in an attorney and B. What to avoid when hiring an attorney.

A. Things to look for in an attorney…

1) Is the attorney friendly, passionate, and non-intimidating;

2) Will the attorney return your phone calls within a “reasonable” time (usually no more than 24 hours);

3) Does the attorneys’ recommendations make common sense;

4) What does the attorney charge per hour and will the attorney bill you monthly so you can easily see on a regular basis what the attorney is costing you;

5) Are credit card payments accepted;

6) How strongly does the attorney support alternatives to traditional litigation, such as outside mediation or collaborative divorce;

7) How much experience does the attorney have in family law;

8) Does the attorney specialize in family law. Just as you would not want a general doctor to perform open-heart surgery on you, you do not want a general attorney performing your family law case;

9) Make an agreement with your attorney in writing on your mutually agreeable and attainable goals. To avoid misunderstandings always put both large and small requests in writing and keep a copy for yourself (again, stay organized);
10) Get in touch and stay in touch with a local support organization for support, encouragement and to ensure your case is proceeding according to your wishes; and

11) Ensure you will be given a copy of any and all documents filed on your behalf or served on your attorney relevant to your case.

B. What to avoid when hiring an attorney…

1) No matter what, avoid a “divorce mill” type of operation where a group of people are grinding out paperwork one after another and an attorney just picks up the paperwork and goes to court. This is not an assembly line operation, this is your life, your future and your future relationship with your kids. This is serious business and you will want to treat it that way;

2) Avoid any and all attorneys who tell you their retainer is “non-refundable;”

3) Be suspicious and avoid any attorney who appears overly aggressive and any attorney who “guarantees” you a certain order. Family law is an extremely subjective area of law and no one can possibly guarantee anything;

4) Do not share an attorney with the other parent. If your case requires an attorney, then get your own attorney to protect you and your children’s legal rights;

5) Whatever it takes, avoid financial problems between you and your attorney. If for any reason you are unable to honor your financial agreement with your attorney, immediately request a meeting and work out a new agreement. You need your attorney playing attorney, not banker;

6) Avoid letting your attorney talk you into giving up something which you feel is important, just so the attorney can expedite the case. Be realistic and reasonable, not foolish. Remember, you may have to live with the results for a long time, a little extra time now can save you a lot of heartache later.

7) Read all legal papers you are asked to sign, understand them clearly and completely before signing and always keep a copy for yourself. If you find unclear language or something that is subject to any kind of interpretation, ask your attorney to have it rewritten so it is explicitly clear;

8) If your attorney states you do not need to be present at a hearing, make sure you find out why you are not needed. If in doubt, have your attorney put it in writing that you do not need attend and that he/she will make no agreements without your consent. However, the general rule of thumb is that you need to attend ALL court proceedings. This is you and your children’s future and you need to be there, you need and must know what is going on in your case;

9) After each meeting with your attorney (whether in person or over the phone) write down what was said, accomplished, promised or planned. Mail a copy of your written understanding of the meeting to your attorney to memorialize that the meeting took place and what was accomplished. This will assist your attorney in keeping on track and will remind the attorney of what was promised;

10) Avoid telling the attorney how much money you have or how much you are willing to spend on your case. The attorney’s focus should be about your case, not how much money you have available to give him/her. If the attorney talks too much about money – leave the office. An attorney whose main focus is the money is only feeling you out to see how much they can get from you up front - how much they can get for a retainer;

11) Make copies of all important papers to give to your attorney. Avoid giving originals to your attorney unless absolutely necessary. If absolutely necessary, ensure you have a copy and assurances the originals will be returned to you upon completion of your case (unless used as Exhibits, then the originals may stay in the court file);

12) Avoid calling the attorney for every little thing that happens, it will get very expensive.

13) Avoid keeping an attorney whom you feel is not representing your interests or your children’s interests fairly or properly. In other words, do not be afraid to fire your attorney; and

14) Your attorney was hired to do a job about which you know very little. You should be able to contact your attorney and expect an understandable answer within a reasonable period of time.