Volume 18, Number 7
How to Communicate with Clients, Get the Information You Need, Manage the Case, and Get PaidBy Richard J. Podell
When my family law practice started more than 32 years ago, we had two employees-a lawyer and a secretary. The secretary took notes in shorthand and made copies with carbon paper. There were no copy machines, dictating machines, or fax machines, no computers or cell phones. Now our firm has grown to a staff of nine people, including four lawyers, a legal assistant, two secretaries, a bookkeeper, and a receptionist.Modern technology has changed the way we practice law, even as the practice has become more specialized, technical, and challenging. A divorce lawyer is a combination lawyer, counselor, clergy person, financial planner, tax advisor, and friend. Divorce for most people is a financial and emotional roller coaster. Above all else, a successful divorce lawyer needs to be sensitive to the client's emotional needs without attempting to become the client's therapist. And to maintain a successful practice, lawyers need to take steps to ensure that they are paid for services provided.
Initial telephone call.A potential client's first impression of a law firm usually occurs when he or she makes the initial phone call. This first contact creates an immediate and continuing image of the firm in the client's mind and can favorably or unfavorably affect all future relations. It is extremely important to handle the initial phone call in a professional manner. You'll need to check for conflicts, so keeping a current conflicts list is very important. Also, you'll want to get a feel for whether the caller can afford your services.
Consultation.If the potential client wants to come in for a consultation, you may or may not want to charge for your time and services. Your expertise has a value, and it shouldn't be given away. Or you may want to consider incorporating the charge for the consultation in the billing for the work to follow. Whenever possible, determine who referred the case to your office, and send a note thanking that person for the referral.If the case is already pending, tell the client to bring basic records to the consultation, including tax returns, financial statements, and court records. Always get the client's telephone number in case the appointment must be rescheduled-but be sure to determine how a call can be made to avoid embarrassing or compromising the client. Clarify where you should send correspondence. Have a checklist of possible information that you wish to obtain from a prospective client, and review it before the client comes to the office. Items may include the following:
- Name, residence address, and all telephone numbers (check for maiden and former names).
- Mailing address (suggest opening a post office box to preserve confidentiality).
- Business address and telephone number(s) (including fax).
- Name, residence address, and telephone number(s) of other party.
- Dates and places of birth, social security numbers, and religion of each party.
- Health status of each party (physical and emotional).
- Prior marriages of each party and details of termination(s).
- Children of current and/or prior marriages and custodial arrangements.
- Financial obligations (or rights) from prior marriages.
- Length of residence in the state and county.
- Name and address of lawyer representing other party.
- Date and place of marriage.
- Existence and terms of prenuptial or postnuptial agreement.
- Whether wife is pregnant.
- Names, dates of birth, social security numbers, and educational status of children.
- Children's physical or emotional problems, if any.
- Party with whom children reside (and previous visitation arrangements, if any).
- Date of separation and which party left the family residence.
- Counseling and therapy history, if any.
- Prior separations or court action(s).
- Grounds for divorce or other relief.
- Client's objectives (divorce, legal separation, reconciliation) and other party's objectives.
- Behavior patterns of the parties toward each other.
- Current employment status of the parties, including income, perquisites, and possible bonuses.
- Employment and income history and income potential of each party.
- Educational background of each party.
- Contributions of each party to the relationship or to career enhancements.
- Income of each party from sources other than employment and expectancies; for example, inheritances, stock options, dividends, or trusts.
- Life insurance of each party (term or straight life, cash surrender value if applicable).
- Each party's assets, including marital, nonmarital, separate community, and quasi-community property (pension plans from previous employers, collectibles, receivables, life insurance cash values, and income tax refunds).
- Joint assets of the parties.
- Identification and tracing of nonmarital or separate property of each party.
- Identification of gifts and inheritances of the parties.
- Incomes and other assets of the children, with identities of custodians or trustees.
- Current and potential liabilities of each of the parties, individual and joint (including income tax liabilities).
- If either party is self-employed or in business: type of business or profession; product or service; stock ownership; number and identity of shareholders, partners, directors, and/or officers; identity of CPA; and interest of the other party.
- Safe deposit boxes, location, contents, and parties having access.
- Manner of handling family finances.
- Manner in which household and family bills are paid and whether spouse and children receive adequate support.
- Financial records, location, and discovery needs.
- Existence of domestic abuse, known addictions, threats to transfer assets or other facts warranting injunctions, orders of protection, and other interim relief.
Witnesses.An important decision is whether or not experts will be necessary. Real estate, furniture, personal property, retirement plans, or businesses may need to be scrutinized by an expert. Develop a plan and general strategy. Determine as soon as possible your potential trial witnesses. Experts are probably necessary for property issues. Vocational experts or psychologists may be necessary to determine spousal support. A mental health professional can be very helpful in answering questions about emotional stability or other problems. If a custody case exists, consider family, friends, and impartial third parties such as teachers or clergy. Sometimes the parents of neighborhood children can be good witnesses. It may be necessary to consider hiring a private detective to gather certain information. If the spouse is spending lots of time with a paramour, that could be helpful information. Your experts will probably have to testify. Let them know the court date as soon as possible.
Temporary relief.A hearing for temporary relief may be critical. Sometimes temporary awards continue for a year or two and can have a tremendous impact on the final outcome of the case. Prepare financial information for the hearing and have witnesses ready, if necessary. When determining strategy, it sometimes becomes apparent that the client's goals are unrealistic-address this issue immediately, or it might come back to haunt you later. Once you and your client are operating on a relatively similar wavelength, it is time to contact the other lawyer to seek a stipulation for temporary relief.In every case, it is worthwhile to see whether a matter can be resolved by agreement. If serious obstacles exist to resolution of the case, then some consideration should be given to the suitability of mediation or arbitration outside the court system. After the case is filed, there should be some discussion with the client as to whether or not a substitution or change of a judge would be appropriate. If you and your client discuss that issue and reach an agreement, draw up a letter memorializing the understanding. If the case gets to a point where your client is too demanding or the requests are unreasonable or unethical, withdraw from the case as soon as possible.
Gathering of information.You will need social security numbers of all parties, including children, and details to determine whether or not the marriage was actually valid. Be sure you have all telephone numbers, including home, business, cell phone, car phone, and beeper. In addition, the client should advise you of any plans to go out of town. When you reach a stipulation for temporary relief or resolution of a certain matter-how you're going to apportion Christmas vacation, for example-put the agreement in writing and have the parties sign it.After you determine jurisdiction, strategy, and possible witnesses, you must decide how you're going to gather other relevant information, e.g., by interrogatories or depositions or informally. Using interrogatories initially may be best, with the information obtained from them providing the basis for questions at a deposition or for informal exchange. Financial affidavits. Financial statements are necessary for temporary relief hearings and final divorce actions. Most judges require them at pretrial conferences. The client's actual expenses-rent or mortgage, taxes, utilities, car payments, and insurance payments-should be easy to determine Be as exact as possible about recurring expenses. Some clients keep accurate records on software programs such as Quicken; other clients have no idea what they spend. Also calculate nonrecurring expenses such as household repairs or projected expenses such as a new roof, driveway, painting of home, new car, orthodontia services, etc. Be sure your client reviews the financial statement carefully before signing, because mistakes or omissions will be used by the other side.When considering expenses, be sure to include the needs of the children. Even though most states have child support guidelines, exceptional educational or physical needs sometimes require additional support. Some states permit college expenses to be covered; others do not. Alimony or spousal support is always a difficult issue, because there are no guidelines, and every case is different. This issue may call for additional witnesses, such as vocational experts, accountants, or financial planners. Spousal support payments must terminate upon death of the recipient, or they will not be deductible. Be sure to calculate projections on the tax impact of any spousal support.
Custody and Placement
Richard J. Podell is president of Richard J. Podell & Associates, S.C., in Milwaukee, Wisconsin.