Guest post by Sean Smallwood, Esq.
Of all of the different areas of law where members of the public may find themselves seeking out attorneys to hire for litigation, the field of divorce may well be one of the most emotional and frustrating of them all. And because it’s not something most of us do on a regular basis, you don’t know when it’s time to fire your divorce attorney.
There are many reasons why you may not be happy with what’s going on with your case. Whether it be an opposing attorney who is playing a delay game, a spouse who is making the case much nastier than it needs to be, or a quickly rising legal bill coming from your own attorney. Of all the reasons people get frustrated with the divorce process there are some points at when you need to stop and ask yourself is it time for me to fire my attorney?
It is important not to jump to premature conclusions. Anyone going into the divorce process needs to understand that even with the best attorney in the smoothest case you will have some frustrating bumps in the road that are beyond the attorney’s control. If you have unrealistic expectations as to what the attorney can and can’t do, then you are setting themselves up for frustration and disappointment.
One common saying among divorce attorneys is that some of their clients think they have a “magic wand.” As silly as it sounds, there are occasions when a client seems to believe that if they pay their attorney enough money there will be no problems in the case.
Let’s assume that you have realistic expectations for your case, you understand that there are always frustrating points in the case and you know there is no magic wand. You meet with an attorney and everything seems to be going well until the litigation starts. Where do you draw the distinction between normal frustrations versus deal breakers?
In my experience there are four red flags in a case where, if they take place, you may want to consider looking elsewhere.
Lack of Experience
The first one of these may seem like common sense. You would not want to hire a brand-new attorney out of law school who’s never had a divorce case to litigate your highly complex divorce. Right?
The problem is that there are no requirements for an attorney to meet for them to advertise themselves as a divorce attorney. Many times there are civil attorneys, criminal attorneys and other types of attorneys who have done very few divorce cases, but are willing to take on one here and there to supplement the cash flow coming in to the law firm.
This can be a big problem because when it comes to contested divorce cases, I find that they are 80 percent strategy, 10 percent filing the right piece of paper on time and 10 percent being able to listen to your client. This means the vast majority of an attorney’s chances of success in a complex divorce are going to depend on their amount of experience litigating complex divorce cases. Unfortunately, an attorney who has been practicing for 20 years as a criminal defense attorney may seem like they have tons of credentials, but if they are dipping their toe in the divorce litigation pool for the first time on your case, it could be a bad thing.
Some ways to avoid this include asking the attorney at the consultation what percentage of their current cases are divorces. Another question to ask is how long they have been focusing on divorce or ask them what their specific strategic approach would be to your personal set of facts. If they cannot lay out even a basic strategic approach than that might not be the right person for you.
Missing Basic Deadlines
The next red flag is when the attorney is consistently failing to meet basic deadlines in the case. In most states, when a petition for divorce is filed, there are automatic timetables for certain things to be done. For instance, in Florida, within 30 days of the petition being filed, a financial affidavit is due and within 45 days of filing, the mandatory disclosure documents are due.
If you’ve provided all the necessary documentation to your attorney well in advance, and your attorney fails to get everything provided to the other side and filed on time, that should be a huge red flag that there could be some organizational issues at the law firm. This can be problematic because it can be a sign that if your case has to go to trial, the proper preparations may not be made.
There are, however, several exceptions to this such as where you don’t provide your attorney with the necessary documents with enough time for them to submit them on time or if you’re not responding to your attorney’s request for the documents. These are common occurrences and your attorney cannot be blamed for this.
Lack of Communication
The next instance when you should be wary is if it’s impossible for you to get in contact with your attorney’s office. This is one of the most common complaints that divorce clients have about their attorneys. Probably every divorce attorney out there at one point in time has had at least one client who has not been happy with how quick they got called back. In fact, there are some clients who expect that they should talk to their attorney nearly every single day and who attempt to micromanage the attorney. In cases like these, attorneys may, in an effort to keep the client’s legal fees reasonable, only contact them when there are updates in the case to report.
There are, however, attorneys who, for whatever reason are horrible about returning client emails, letters, and phone calls. Sometimes it’s laziness and sometimes it’s a sign that the attorney is too busy or has poor support staff. Whatever the reason, this is creates the danger that that the attorney who never has communication with the client never knows what’s going on in the case when they get to court.
Many attorneys will have support staff who field phone calls, report updates to the attorney and records them in the client’s file. This is fine as long as there is some level of communication going on. However, it is surprising just how many attorneys will not maintain any level of communication with the client including, but not limited to, a complete lack of preparation for mediation and hearings. As a divorce client, if it is utterly impossible to contact your attorney or his support staff then you may want to consider looking elsewhere.
You Hired A Pit-Bull…And Didn’t Want One
The final area of concern for many divorce clients is they unknowingly hired the “Pit-Bull” type attorney. This is the attorney who will turn every small aspect of the case into a fight requiring a hearing and minimize the chances of a settlement in the case opting instead to go all the way through the litigation path to an expensive trial. This is a problem for most divorce clients because the majority of divorce lawyers do not want to fight and actually are hoping for a settlement.
The “Pit-Bull” attorney typically does not want any part of the case to be easy and believes that the proper way to litigate a divorce is to fight on every single issue requiring hearings and billable hours to add up that otherwise would not be necessary.
One way you can try to figure out if you’re hiring a “Pit-Bull” is to simply ask them what the preferred method to reach resolution of the case is “trial or is it settlement?” If the attorney answers “trial” then you may have a “Pit-Bull” on your hands because the vast majority of the time, the preferred method of case resolution is by settlement rather than by trial where at all possible.
Why is it so bad to hire a “Pit-Bull?” Not only will your legal fees be doubled or tripled what they may have been otherwise, but generally by the time this type of highly contested litigation is over, both parties to the case hate each other’s guts and any children in the case are stuck being raised by parents who hate each other and refuse to co-parent the child.
In conclusion, these are the four most common red flags that I have come across in my career as a divorce attorney that would signify when it is time to look for another attorney. There could certainly be others, but the best gauge is always to go with your instincts. If you get the feeling that the person representing you is not doing the best job of zealously advocating for your needs, then trust your gut and look elsewhere.
Sean Smallwood, ESQ is a divorce attorney and the founder of Sean Smallwood, P.A., a law firm specializing in divorce and family law in Orlando, Fla. He has helped many families with a wide variety of divorce and family law cases. Orlando Style Magazine has recognized him as one of Orlando’s Legal Elite “Rising Stars” and has received recognition for Pro-Bono contributions to the community.
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