HOW NEW LAWYERS SHOULD FIRST ADDRESS FAMILY LAW MATTERS WITH THEIR CLIENTS

The first thing not to do is to offer legal advice over the phone when a potential client calls up a newly called lawyer and wants to meet as soon as possible. Naturally, an appointment should be fixed for a detailed consultation, informing on the phone of the consultation fee (if any), the length of time it will take, with whom they will be meeting, and the necessary documents they should bring. A background check follows to ensure that the client will not inadvertently meet with a lawyer who has, or whose associate or partner has, acted for the client’s spouse. Consultations usually take between 45 and 90 minutes and vary according to the situation.

After the customary greeting, the client is informed of the structure and cost of the consultation, method of payment, amount of time the interview will take, confidentiality rules, and exceptions to those rules.  Moving on to biographical information from the client, the questions dwell on but are not limited to:

• Full names and birth dates for him or her, the other party, and their children, if any;
• The dates when they started dating, began cohabiting, married, and started living in separate homes; and
• Details of how much time they spend with the children.

Then, follows their employment history, including:

• Current and historical income, job titles, and particulars of any periods out of the workforce;
• Details about the matrimonial home including ownership, purchase price, current fair market value (if known), and any encumbrances, liens, mortgages or judgments; and
• Details about their finances and assets including rough figures as to their investments, pensions, and accounts.

Such information is very important because without it there is no way  to give any meaningful advice as to the client’s situation. A standard interview form is quite useful here in ensuring that all relevant information is obtained in the beginning.

During the interview, naturally the prospective client would talk the most. There could be a brief diversionary talk on something else, but not a dialogue.  As the client talks about why he or she has come for the appointment, the counsel listens with close attention. In fact, the counsel’s role is that of a guide allowing clients to tell their story in their own words, resisting interruption unless absolutely necessary, but checking back from time to time to let the potential client know that the information  is being received and understood. It is important to understand both what is and what is not being said—in other words, the underlying motivations and interests that are not always apparent at the first instance. While listening, the counsel has to make notes, marking specially the legal issues and thinking about how to handle the situation if retained. It is quite likely that the prospective client would bring some documents or a letter recently received from the other party or lawyer to be reviewed by the counsel.

After hearing patiently, but with pertinent queries, the counsel gives a broad perspective  of the law in relation to each relevant legal issue and informs the client of the impact on, and applicability to, their case. It is necessary to stress that the outcome in court could be uncertain and depend on a number of factors unknown to the lawyer at the time. In view of this, it would be prudent to be cautious, to be not too certain and to be guardedly optimistic about the likely result.  Other information the counsel is expected to convey includes the range of possible methods available to resolve the dispute, their likely cost, and an approximation of the time required for fighting the case. Generally, almost all clients are familiar with traditional litigation and may not ask for details. However, it is for the counsel to explain the basic tenets, advantages, and disadvantages of negotiation, mediation, mediation-arbitration, and family law court.

The dialogue between the client and the counsel begins and continues in the discussion phase, at the concluding part of which the strategy to fight the case to win is deliberated on.  It is not unusual for the client to bring a  family member or friend who patiently sits through the first few sessions and then participates fully in the talks. Now, they express their views and ask questions.  Answering their queries, ideally with brutal honesty, a strategy is jointly formulated establishing a clear understanding of all the steps that will take place if the client retains the lawyer. Should the client want the family member or friend to continue to be involved in the file, this has to be noted in the retainer.

Negotiation

A detailed discussion of the importance of negotiation is absolutely necessary when a client retains a lawyer for help in a family law matter.  It is not uncommon for counsel to hold negotiations of some kind with the opposing side even when a court case is underway.  This is welcomed and should almost always be explored.

It is important that the counsel does not commence litigation without exploring with the client whether it is better to try to negotiate first. A key component of resolving disputes is negotiation, and clients should fully understand the numerous ways in which settlement can arise.