10 Things Divorce Lawyers Should Say

By Attorney Gregg Herman
July 9, 2012

Smart Money Magazine recently published an article titled “10 Things Divorce Attorneys Won’t Say.

My response: If there are things divorce lawyers won’t tell their clients, it’s probably because they’re untrue.

Let’s examine them, one-by-one.

1: “You’ll pay more than the advertised rate — way more.”

Clients who hire divorce lawyers advertising “a quick and easy divorce for $299″ get what they’re paying for. As Randy Kessler says in the article, if there’s nothing to negotiate, but only forms to fill out — which is true of many divorces — a flat fee is possible. Otherwise, it’s impossible to predict fees because it’s impossible to predict the process.

Many potential clients ask for an estimate of costs, and that’s perfectly fair. However, it’s only an estimate.

Divorces in Wisconsin take a minimum of 120 days, and given the vagaries of court calendars, it’s usually more time than the statutory minimum. Much can happen in the interim, and predicting the final cost is simply impossible.

2: “I get sued — a lot.”

I’ve never been sued.

The article makes a somewhat valid point, although it is unclear on what it means to “get sued.” If it means malpractice, I don’t know of any statistics showing that divorce attorneys have a higher incidence than other lawyers.

If it means ethical grievances — which really aren’t lawsuits — the statistics show that divorce attorneys are second only to criminal defense attorneys in the number of grievances.  Importantly, I said “grievances” — not actual disciplinary actions filed. In fact, to my knowledge, the rate of actual violations by divorce attorneys is no higher than any other area of law.

3: “My lack of fiscal know-how will cost you.”

Divorce lawyers sometimes have to make judgment calls whether to recommend clients hire financial experts — tax accountants, business appraisers, etc. In most cases, this isn’t difficult, because the vast majority of divorces don’t involve enough, financially, that this is even an issue. A few cases are so complex that financial experts are mandatory.

Experts are supposed to know not only their fields, but the parameters of their fields. Divorce experts need to know enough about taxes, business valuations, investments, real estate, business organizations and other financial matters to know when they’re at the limits of their knowledge. Divorce experts need to know enough about these fields to be able to direct the financial experts and to know how to incorporate their work into divorces.

So, in cases where there are complex financial circumstances involved, parties should hire lawyers with sufficient experience and knowledge to understand them. They should also understand when a higher degree of expertise is warranted.

4: “I make promises I can’t keep.”

In reality, not doing so has cost me clients.

Frequently, advising divorce clients entails giving bad news. “No, you are not going to get everything you want.”

Yet, the article is correct that there are some divorce lawyers who over-promise to clients to get business. Given the number of divorce lawyers and the current economy, there are hungry lawyers out there who need retainers, even if the results are dissatisfied clients at the end.

Good, professional lawyers don’t over-promise. Rather, they give realistic appraisals and never, ever promise anything that cannot be delivered.

5: “I’ve only handled a couple of divorce cases. Ever.”

This doesn’t apply to me. But, what amazes me is how infrequently clients ask me the following:

What percentage of your practice is divorce?
How long has that been the case?
Are you certified by any organization as a specialist?
Have you ever handled a case with issues like mine?
What is your rate of settlement versus trial?
Do you have litigation experience?
Do you have any training or experience as a mediator or other settlement methods?

Instead, typically, the questions I get asked are:

What is your retainer?
What is your hourly rate?
Do you do flat-fee billing?

For cases with minimal assets, those questions are fine. But, for cases with much at stake or complex issues, potential clients should be less interested in cost and more interested in their lawyer’s skill and experience.

6: “Prepare for plummeting income.”

Actually, I do say this to clients when appropriate. The “plummeting income” warning especially applies where one party has control over some or all of his or her income, such as when someone is paid on commission, is paid for voluntary overtime or is self-employed.

In any event, warning all clients about “plummeting income” is too narrow. In virtually every divorce, there’s not enough money to go around. There is rarely more income, but always additional expenses: two rents or mortgages, two sets of utility bills, etc. Not to mention lawyer bills.

The article is wrong. Good divorce lawyers not only warn potential clients about plummeting income, but also about the likely financial sacrifices associated with divorce.

7:  “Go cry somewhere else.”

Again, the article is wrong. I do say this — often — but I’m much more diplomatic.

The article is correct that the emotional toll of a divorce is worse than the financial. As a result, we usually recommend counseling. Some clients are reluctant, believing that it might harm their rights to custody or placement. This is, quite simply, untrue. Not being in counseling might hurt their chances.

8: “You may not even need me.”

Wrong again. We do say this to clients occasionally – such as where there are more debts than assets, which, unfortunately, is all too common today.

The article again perpetuates the stereotype that divorce lawyers are buzzards. Are there surgeons who perform unnecessary procedures to make an extra buck?

Certainly, but they’re not the norm. Similarly, the norm is that divorce lawyers who see a case where the parties don’t need lawyers will let them know about pro se forms and services.

9: “I don’t have time for you.”

The article – finally — has one correct. Divorce lawyers (for that matter, all lawyers, I presume) would never say this.

However, the article has the reasons all wrong. It posits that the divorce rate is spiking and the “ranks of the legal professional” are diminishing.

If the divorce rate is spiking (I’m not aware of that statistic — I thought it had leveled off) with the astonishing high rate of pro se divorces, the number of lawyers representing clients is way down. As a result, the competition for paying clients has substantially increased.

Moreover, the concept of fewer lawyers is a new one on me. With law schools churning out graduates, I seriously doubt that a lack of lawyers is a problem.

But, while the analysis is wrong, I have noticed a worrisome trend of lawyers not returning calls or performing necessary work on cases on a timely basis. Divorce lawyers, like virtually everyone else, are affected by the struggling economy. Some lawyers seem to be taking on more clients, in an effort to compensate by volume. Since these lawyers also have only 24 hours in the day, the result is a lack of responsiveness.

Good, professional lawyers control their caseloads to ensure they always have time for clients.

10: “I’m dragging my feet.”

Well, of course lawyers will never say that. But, the question is whether lawyers actually do that.

The article cites statistics that divorces involving lawyers take longer to resolve than those without. Of course they take longer.

Many divorces involve no property and little income. Lawyers are totally unnecessary, as all the parties need to do is fill out forms. For them, legal clinics are invaluable. The people who hire lawyers have property and/or income, so, of course, their cases take longer.

The popular myth is that lawyers drag out cases to increase fees. While I’m sure that this does happen on occasion, the myth is far overblown. In my practice, it is far more common for lawyers to discuss ways to shorten the proceedings and save the parties’ money.

In sum, there are unprofessional lawyers, just as there are unprofessional doctors, accountants and every other occupation. Fortunately, in real life they’re rare.

Smart Money treats the rarity as the norm, because the norm doesn’t sell magazines. But, it also does no service to its readers, who, I hope, are truly smart enough to see through it.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.