Choosing the right clients and managing their expectations may be the two most important jobs for any family law practitioner.
Rory Weiler, a Kane County divorce lawyer with 34 years of practice experience, has a word of advice for fledgling family law practitioners.
"The biggest mistake young lawyers make is that they think they have to be obnoxious personally and professionally to be effective. I can't tell you how many times I've had these young lawyers coming up to me with a tone," Weiler said in an interview, adding that he thinks such attitudes are driven by TV. Think Zach Grenier, the actor who plays brash divorce attorney David Lee in the television drama The Good Wife.
Usually it means they're scared, Weiler says, and he just ignores the attitude.
Sometimes, lawyers are putting on a show for their clients, who think their divorce attorney should be an attack dog.
Whether on the part of rookies or veterans, such boorish behavior is a problem, said Judge Michele F. Lowrance, who retired from the bench in Cook County recently and now works at JAMS, an alternative dispute resolution firm. "A lawyer can take on the coloration of their client, lose their objectivity, and start screaming. Lawyers do get embroiled in their clients' stories and they have to. I'm fine with passion as long as it has intellectual clarity."
In "Top Ten Things You Need to Know About Family Law," a CLE presentation Weiler made before an audience of ISBA members (and free online to ISBA members - see sidebar), he covers lawyer behavior and a variety of other topics. They include client selection, managing client expectations, negotiating a settlement, trying a divorce case, and other issues that confront veteran and new family lawyers. His advice begins at the beginning, when you make your initial decision to take a case - or not.
Client selection is job one
When a lawyer and prospective client meet, they both are undertaking the all-important task of deciding whether to form an attorney-client relationship. "Selecting clients can be almost as difficult as representing them," Weiler said. But do the job well and you'll have "a very successful and satisfying career in the law as opposed to a daily dose of misery."
The art of client selection begins with the first interview, when a likely distraught husband or wife comes to your office looking for representation. Rather than filling out lengthy and formulaic intake forms while the client is talking, Weiler simply puts down his pen and asks the client to tell him her story. He interjects sparingly, believing that listening gives him a much better feel for whether the case and prospective client are right for him.
For younger, underemployed lawyers with student loan debt, one piece of advice he offers might not be practical. But he recommends rejecting clients who live in a far flung county where you've never practiced, offering those who consider doing so a reality-check checklist.
"Let's say you're considering a case in LaSalle County and your office is in Cook. Do you know anybody in LaSalle County? Have you ever practiced there before? Do you have the slightest idea what their local rules and customs are? Have you considered the practicalities of handling a case that far from your principal office? Are you willing to spend a whole day in LaSalle County on one case? How much money might that cost you?"
Also steer clear of clients who cannot afford to see the case to completion or who have already been through two or three other lawyers. Statements like "my last lawyer didn't do anything for me" or "you mean you're going to charge me for phone calls" are red flags that should deter you from accepting the case, Weiler said.
Matthew Kirsch, a Chicago-based family attorney and the secretary of the ISBA's Family Law Section Council, couldn't agree more. "Client selection is so important for your own happiness. If you have a bad feeling about your client, don't take the case. If you know you're not a good fit personality-wise, don't do it. Every time I have, I've regretted it."
Managing client expectations
Debunking the bunk. Tamping down the unrealistically high hopes of clients is a challenge for any divorce lawyer, Weiler said in an interview. "There's a lot of misinformation out there and everyone you meet will tell you they have a brother-in-law, aunt, or cousin who got everything they wanted [in their divorce] plus an extra 20 percent."
He had a prospective client insist that once children turn 14, they get to decide with which parent to live. (False. The child must have turned 18.)
Another client insisted that she and her husband had committed a fraud by filing a joint tax return even though they'd been separated for more than six months. No rule in the tax code prohibits separated couples from filing joint returns, but his client was insistent.
"Every client that sits in front of you is going to have some cockeyed notion about what they can or cannot do or expect," Weiler told CLE attendees. "Early on debunk those myths, debunk the curbside advice they get."
Don't overpromise. Weiler's rule in dealing with new clients is to be empathetic and compassionate, but be very conservative about what you think you can get for them regarding assets and child custody and visitation. "Never overpromise," he says. It's just bad business because if you can't deliver, you'll have an unhappy client who won't refer more business to you.
"They're under a tremendous amount of stress," Weiler said. "They want someone who is going to empathize with them. Just put your pen down and listen. This is all about building a rapport."
Warn about emotional and economic costs. If Weiler decides to take the client, he doesn't pull punches. With a bit of tough love and convincing the client that they will be a team, he gives it to them straight. "You hate him now, but you're going to have to deal with him...you're going to [be at the same] graduations, weddings, bar mitzvahs." Encourage your clients to deal with their spouse, no matter how emotional they are, and help them prepare a road map of what they hope to accomplish in the divorce, Weiler advises.
And warn about the economic costs of unrealistic expectations, he said. "Encourage your client to think about the economic costs that are attendant to the [divorce]," Weiler said. "They may want this, that, and something else. You have to be realistic with them upfront," particularly clients who have relatively few resources. "Some cases don't warrant hiring certified fraud examiners or forensic accountants and digging through years of bank records to chase after nickels and dimes," he said.
Use forms with care
Pleadings and motions should be pristine. Carelessly using a template from a prior case could diminish you in your client's eyes.
"Nothing will anger your client more than getting a request to produce documents from the other side that has the name of a former client in the body somewhere," Weiler said.
"If you're turning out sloppy forms, it shows, it's a reflection of you as a lawyer. We all benefit from the use of forms, but remember, you are the lawyer. If I dictate a petition, I read it before I have the client sign it. People make mistakes. And if those people work for you, you are responsible for their mistakes."
Know thy judge
Annemarie Kill, an experienced family law attorney in Chicago, says this is crucial. "When I first started, I would sit in the [judge's] courtroom where my case was assigned and just watch the call. You'll get a sense of the judge's demeanor, temperament, what's going to fly and what's not," Kill says.
"To get a good settlement, you have to be able to give the client a reasonable and reliable estimate of what the judge in the case is likely to do," Weiler said. "You need to know what the judge likes or doesn't like, what his or her predilections are, before you sit down at the pretrial conference. If you wait until the pretrial conference to find out what the judge is thinking, you've waited too long," Weiler said.
"You need to know going in that this judge doesn't like maintenance in a case like yours, does like maintenance, or whatever. If you know what the judge is likely to do based on past performance, you're better able to influence him or her at the time of the pretrial conference."
When the time comes to talk settlement, be cordial with your opposing counsel. In essence, you both have the same goal and the money being divided is coming from the same place. Make sure your client is prepared, has clear and realistic expectations, and understands what you're trying to accomplish.
If your opposing counsel becomes belligerent, understand that this usually means he or she is running scared, Weiler said, echoing his remarks about too-aggressive new lawyers. "When somebody comes at you like that, with personal attacks, with all this yelling and screaming, theatrics, and so forth, it's really a hallmark of two things - fear and lack of preparation," Weiler said.
"They're afraid perhaps of you. Or, fearful that they sold the client a bill of goods and know they can't deliver on the promises they made. Or, again, lack of preparation, they are just not ready to negotiate because they haven't prepared to do so.
"My usual practice is to weather the storm, to calmly try to turn things back to the reason we're here, which is to settle the case," Weiler said. "And you have to let the other party blow off a little steam. Sometimes it's easier to settle if the other party can tell you what a low down snake in the grass your client is, how horribly he or she has acted during the marriage. I'm not going to let this go on indefinitely. But sometimes it helps let a little of the steam out so you can get down to the productive business of negotiating."
The steam vent can work for lawyers, too. "I'll also let the other attorney posture a little bit," Weiler said. "Maybe he or she has to put on a show for the client. I get it. But that's not why we're here. We're there to settle the case.
"All the venting, all the posturing, all the bombast aside, you have to assume they wouldn't have taken the settlement conference just to throw grenades," Weiler said. "They have some interest - if not the lawyer, the client; if not the client, the lawyer - in settling the case or they wouldn't be there in the first place."
Trial - make it a last resort
If your case goes to trial, chances are no one will be happy with the outcome, Weiler said. "Nobody is ever going to come out of trial the way they want to. And you're almost always better off with a bad agreement that the parties put together than something the judge puts together for them. If the parties are involved in the process, they're invested in it and more likely to comply," he said.
"I think [a big] mistake we as lawyers make is failing to discuss with the client early and often the cost of taking the case to trial. Both economically and emotionally. You'll drive you practice into the ground if you try cases, first, without being paid for them in advance or, if not that, without any reasonable expectation of how your fee is going to be paid after the fact."
Your job as lawyer is to make sure the client understands the costs of litigation, Weiler said. "Do the cost benefit analysis with your client. Is it worthwhile to try this case in the hopes you will get X? [Let's say] the marital estate is $100,000 and you're stuck on a 60/40 division of the marital estate and your opponent is saying, oh no, 50/50 is the way it's got to be. What are you arguing about here? You're arguing about ten grand. Does it make sense to try the case for that?"
What you must do if at all possible is keep a client from pushing a case to trial for emotional rather than economic reasons, Weiler said. "The client that's motivated by emotion-driven nonsense is not going to play well with the judge. Judges take into account that people are trying cases they shouldn't be simply because they are emotionally driven."
And suppose your client won't listen to reason? "Trial retainers are the best way to talk an [irrational] client out of a trial," Weiler said. "Say, 'That's great, I'll be happy to try that case, I need you to bring in a big trial retainer so we can get started working on it.'
"And if your client says, 'Wow, can't afford it, can't pay you, don't have any idea how I'm going to pay you but I need you to take this case to trial.' What then? File your motion to withdraw," Weiler said.
"A well placed motion to withdraw does one of two things. It either gets you paid or it gets you off the hook. And I would suggest to you either one is a good thing."
Janan Hanna is a Chicago freelance writer and a licensed attorney. A former staff writer for the Chicago Tribune, she writes for numerous news organizations.
Reward referrals. Ask clients who referred them to you, Kane County matrimonial lawyer Rory Weiler said. "You want to find out who your sources of referral are, and you want to from time to time take care of those referral sources. If it's another lawyer, drop him or her a gift certificate. If it's a family member or friend, send them a nice letter and say, 'I appreciate your confidence in me.' This is all part of marketing your practice."
No free consultations. "I don't give free consultations," Weiler said. "Because if they're looking for something for free before I've even met them, [I'm concerned]. Almost invariably these people [will continue to argue about money]….'You say the retainer is $5,000, can you do it for $2,500?'"
Discourage confessional clients. Discourage confessions of infidelity, Weiler says. "If [your client] had an affair with the neighbor, and [hasn't told his or her] spouse about it, tell them, 'Don't do that.' Why? [Because it's] guaranteed to inflame the other side. And what happens when the other side is inflamed? It's just going to take longer to get things done, it's going to cost more money, negotiations are going to be a nightmare. Candor and confession are good for the soul, but not in this context."
Rory T. Weiler presented his Top 10 Things You Need to Know About Family Law as part of the 2013 ISBA Solo and Small Firm Conference. The full one-hour program - and, for that matter, the entire three days' worth of conference programming - is available free online to ISBA members at http://isba.fastcle.com.