Hand-in-Hand With Your Lawyer: Make the Attorney-Client Relationship Work For You [2011-05-06]
By Daniel L. Bray
Daniel L. Bray is a former chair of the Iowa State Bar Association Family Law Section and a member of the American Academy of Matrimonial Lawyers. He teaches continuing education programs and writes frequently on matters of ethics and attorney-client relationships. He is a former member of the Publication Board of the ABA Section of Family Law and is the author of Iowa Matrimonial Law, a treatise on domestic relations law in Iowa. This article was published in the American Bar Association Family Law Advocate in the Summer of 2011.
As you begin your divorce process, a new life motto is in order: “I will always act effectively in my self-interest.” After all, this is your divorce, and the outcome will be the basis of your new life. Your lawyer is here to help you realize your goals, which should be based on a clear understanding of the facts and your self-interest.
There are two important aspects of any successful attorney-client relationship. The first is forging a reliable relationship with your lawyer and the second is communicating effectively with your lawyer. In this era of rapidly expanding electronic communication, effective communication is actually more difficult than ever.
Although every case and individual is unique, a number of basic client attitudes and behaviors are sure to enhance the attorney-client relationship during your divorce case. Your lawyer’s role will change from time to time throughout the process, often due to changing needs and your capacity to deal with aspects of your case. You too will change during this process.
Following are eleven suggestions to ensure a reliable and successful attorney-client relationship.
1. Learn about your lawyer. Feel comfortable and positive about your decision to hire a lawyer. Get recommendations from friends and other lawyers. Interview several lawyers before making your choice. Check lawyer-rating services, such as Martindale-Hubbell or FindLaw. Go online and get information from websites, particularly from professional associations of family lawyers. Look at your attorney’s website for information before your first interview. Ask your lawyer face-to-face about fees, availability, attitudes, experience, and how the office can best serve you.
2. Ask more questions. If the answers to your initial questions are not satisfactory, ask more questions. There is no such thing as a dumb question. Everyone values a direct and complete answer.
3. Be an informed client. Listen carefully to your lawyer’s advice. Learn all there is to learn from your lawyer. Your lawyer will want to teach you things to make your case proceed smoothly and to produce the most satisfactory results possible.
4. Seek timely communication. Your lawyer should give you copies of all correspondence, pleadings, and other documents related to your case. If you do not get them, ask for them.
5. Provide timely communication. When your lawyer asks for financial and personal information, be prompt and forthcoming. If you do not know the answers to some questions, be frank and admit it. Tell your lawyer what you do know. From that point, your lawyer can help you discover what you don’t know.
6. Don’t be afraid to call. Remember, if an issue is important to you, it is important enough to be communicated directly to your lawyer. Sometimes e-mail will be the best and quickest means of communicating, especially to transmit documents or brief facts; but, at other times, a telephone call will be more efficient and productive.
7. Do not artificially limit your lawyer. It is not uncommon for a client to say initially, “I want you to handle my divorce, but I do not want to go to court.” This is comparable to saying, “I want a divorce and I will give up everything.” Your lawyer can help you become comfortable both with the process of settlement negotiations and a trial. Talk about your concerns and options. Your lawyer can help you decide if an alternative dispute resolution process would serve you well.
8. Become familiar with the divorce process. The more familiar you are with how things work, the less afraid you will be. A divorce proceeds through the application of legal principles to the facts of your case. Your lawyer will gather and present the facts in an orderly way. The trial will be a step-by-step, logical presentation of those facts, which will lead the judge to your advocated conclusion.
9. Be proactive. Ask your lawyer what you can do on your own to help resolve your divorce. This might include reading about child custody, gathering documents, speaking to your soon-to-be-former spouse about settlement, or helping your lawyer to time the requests for discovery or settlement proposals. Ask all questions and tell all facts to your lawyer. It is through shared knowledge that you will power your case. Learning to communicate effectively is learning to be powerful in your own self-interest.
10. Be heard. Get comfortable talking with your lawyer about the most important things in your life. If you feel your lawyer is not hearing what is important to you, be persistent. If you are embarrassed about what has happened to you, don’t be. Your case is unique, but the many behaviors and circumstances surrounding divorce are commonplace. Make sure that your lawyer fully understands your feelings and what is important to you.
11. Discharge your lawyer sooner rather than later. Remember, having a good working relationship with your lawyer is central to your case. If after talking candidly with your lawyer the relationship is still not working, you have a right to discharge your lawyer. This means that you as the client have the real power in this relationship. Do not act in haste. Be thoughtful and effective in your decision.
Communication between you and your lawyer occurs in many ways. It can be in person, by telephone, by fax, by e-mail, by texting, by letter, or by messages passed through your lawyer’s staff. Communication is a mutual exchange of information. Good communication is essential to effective problem solving.
Following are suggestions for communicating effectively with your lawyer. The new normal is electronic communication––blasting out the words and demanding an instant response. However, electronic communications may not be the best and most effective means of communicating with your lawyer. Sound bytes, lobbing lots of e-mails, and demanding immediacy, rather than planning ahead, may not be the best way to work with your lawyer. Face-to-face meetings will likely be part of the package and may offer new ways of looking at things and making decisions. Sometimes, simply fingering the paper documents may give you and your lawyer a greater understanding of the facts and issues at play in your case. Together you will figure out how and when to communicate by e-mail, telephone, fax, or in person.
E-mails to your attorney should be brief, contain clear information, and state why you are providing the information. Don’t let your electronic communication become an activity without achievement. E-mail documents, but do not demand that your attorney use e-mail exclusively for case discussions or decision-making.
Do not fear or be intimidated by your lawyer, the law office, or the courtroom. Try to keep emotions out of your communications, but go ahead and tell your lawyer how you feel. Your emotions can get in the way of solving problems, but your feelings are very important for your lawyer to understand. Often the facts are simple, but emotions are complicated.
If your way of communicating with your lawyer does not work, change it. Here are fourteen ways to communicate more effectively with your lawyer.
1. Speak your self-interest. Self-interest is not the same as selfish. Effective problem solving can happen only with a clear expression of your self-interest. Adopt the five simple phrases of self-interest:
- “I want…”
- “I need…”
- “I will….”
- “I will not…”
If you express your self-interest, then no one needs to guess about what you want. Indirect language often does not convey clearly what you want to tell your lawyer. You may appear to be saying one thing or agreeing to one course of action when the opposite is true.
2. Do not keep secrets from your lawyer. Communications with your lawyer are privileged and confidential. Knowing this makes it easier to tell your lawyer everything. Withholding information about yourself or others empowers the other side. Share everything, including embarrassing facts. Ask your lawyer about the best way to communicate those facts. Often the best way is to make an appointment with your lawyer to discuss how your secrets may affect the case. In all likelihood, your secrets will not have the dramatic impact you fear.
3. Do not lie or intentionally mislead your lawyer. Remember, any lies you tell will become the facts of your case. The divorce process is a trial process. At trial, your lawyer “tells the story” of your case and uses the facts as you have presented them to persuade the court that your advocated outcome is logical. Tell your lawyer everything you know so that he or she can use the tools of discovery to learn more about what you do not know. Nothing is more frustrating for a lawyer than to learn in the middle of a case that the client has withheld information. If your lawyer has organized your case around facts that are false, deceitful, or misleading, you can expect a similar result.
4. Ask what your lawyer expects of you. In many social relationships, we assume what other people expect of us. When problem solving with your lawyer, ask what he or she expects of you. If you know what your lawyer expects, you can choose whether or not to meet those expectations. Choice is an important part of solving your problem. Make choices and tell your lawyer which choices you have made.
5. Honor your lawyer by asking questions. Your lawyer does not possess knowledge that can be revealed only on a mountaintop in carved tablet. Your lawyer has knowledge that he or she wants to share with you for effective problem solving in your case. Rather than feeling pestered by your questions, your lawyer should be honored by them. Do not apologize for asking a question; be direct. Say, for example, “I want to know what happens if . . . .” Keep asking until your question is answered. Remember, there are two experts in your case. You are the expert on the facts of your life, and your lawyer is the expert on the law and legal strategy.
6. Do not have off-stage lawyers or others advising you. If you want a second opinion, ask your lawyer for a referral or tell your lawyer that you are seeking a second opinion. The second-opinion lawyer has some ethical constraints on the scope of advice he or she can give you because your lawyer already represents you. The second lawyer should communicate directly with your lawyer so that everyone knows what is being said and advised.
Tell your lawyer what advice you have received from other people. After all, your lawyer must contend with the whole range of opinions, advice, and directions you get from friends and family. If you are acting on someone else’s advice, tell your lawyer. Effective problem solving requires candid communication between you and your lawyer about advice you receive from other people and other lawyers.
7. Do not take your lawyer’s name in vain. Your lawyer is there to help you through your divorce. Lawyers can be used, misused, cursed or praised in ways that do not contribute to effective problem solving. Spouses sometimes use lawyers as weapons against each other. The other side may vilify your lawyer because he or she is acting in an advocacy role for you. Likewise, extremely dependent clients also can deify their lawyers. Work with your lawyer and understand that he or she is a human being who is attempting to be the best possible advocate for you. That’s all: That’s enough.
8. Do not allow yourself to become frustrated. If communicating with your lawyer is frustrating, sit down and talk about it together. Confronting the problem head on may be rough, but it will lead to a better result. Your lawyer may feel the same way. Together you can find more effective means of communicating.
9. Do not fear the divorce process. Fear often impedes good communication. If you are afraid, acknowledge it. Acknowledged fear will bring you peace.
10. You are your lawyer’s most important client. At times, your lawyer will have to attend to other important matters. If your questions are not answered in a timely manner, be direct. Ask your lawyer how to proceed when you need something and he or she is busy juggling other matters.
11. Get to know your lawyer’s staff. Your lawyer’s staff can answer questions and relay information. Ask your lawyer which staff member to turn to when he or she is unavailable.
12. Make your lawyer aware of changes. Your situation may change rapidly during your divorce. Tell your lawyer about changes that are occurring in your life; your spouse’s life; with regard to your assets, income, and children’s lives. Although your lawyer is trying to take a “snapshot” of your case, getting the complete picture may require a series of pictures over time. Nothing is more frustrating for your lawyer than finding out too late that facts you imparted earlier are no longer accurate.
13. Tell your story as clearly and completely as possible. Be upfront and relate all the facts: the good, the bad, and the ugly. Use notes, worksheets, written narratives, and document organization to help your lawyer understand your situation. Ask your lawyer for worksheets or some organizational direction. Your lawyer will ask you to write down important facts, such as the correct spelling of your name and your Social Security number. Doing things in an organized way cuts costs and increases effective problem solving. If you are unable to organize your thoughts, acknowledge this and ask for help. If you suffer from depression or other emotional difficulties that affect your ability to present your case in an organized fashion, acknowledge those difficulties and ask for help.
14. Tell your lawyer your goals and expectations. If you do not know your goals, take a few minutes to think about them. Goals are clear, simple, unconditional statements.
Sit down with a blank sheet of paper and write down your goals as fast as you can. Goals can be contradictory, inconsistent, and outlandish, but they are your goals.
Once you have gone through this exercise several times and have written down all of your goals, take a moment and rank them, from the least important to the most important. Your top three or four goals may be difficult to rank, but give it a try. Then re-write your goals in order of importance and share this list with your lawyer.
By communicating clearly, concisely, and effectively with your lawyer throughout your case––as to the facts of the divorce and your goals and expectations––you are more likely to formulate realistic and reachable outcomes that will meet your needs in as cost-effective a way as possible and with minimal stress. And that is a good divorce.