April 01, 2018 Custody

Child Custody Innovations for Family Lawyers: The Future Is Now

By: Linda S. Smith, Ph.D. & Eric Frazer, Psy.D.

I. Introduction

There are currently 1,512 legal tech start-up companies with an average valuation of four million dollars, including the very first artificial intelligence legal technology, ROSS, developed by IBM’s Watson Cognitive Computing Platform. These innovative legal tech solutions improve the efficiency and effectiveness of legal services for both businesses and consumers alike. However, they are also disruptive in that they introduce a maelstrom of radical economic and practical change from the law office to the courtroom. Growing market forces have rapidly allowed legal technology companies to evolve from distant insignificant entities off in Silicon Valley to fierce local business competitors with substantial financial investments.

Parallel to this legal technology explosion are the market forces that are having a similarly momentous impact on family law, albeit a more pernicious one. Family law graduates are struggling to secure jobs, and family lawyers must work more hours now to earn revenues comparable to those achieved in past decades. Grievances are plentiful, with complaints often falling in the areas of communication and diligence. Self-represented litigants are on the rise, and legislation is passing across the country to allow nonlawyer specialists to serve some of the growing needs of the litigant community. Market forces are speaking forcefully to the family law community, and the answer to one critical question will determine the fate of family law: Will family lawyers listen and appropriately respond to the current tidal wave of market forces?

Family law distinguishes itself by requiring a unique level of proficiency in a wide range of substantive issues in law, finance, and child psychology. Child custody is to be awarded based on best-interest factors, which vary by state—although common factors such as the needs of the children,  the parenting capacities of each parent, and the mental health of all involved parties are generally consistent from jurisdiction to jurisdiction. Underlying the “best-interests” lexicon are psychological issues such as child development, parent–child relationships, co-parenting, domestic violence, and other aspects of parenting and parenting conflict. The majority of disagreements—contested and uncontested alike—are skewed towards psychological issues associated with child custody and parenting plans.

Not surprisingly, much of a family lawyer’s education, training, and experience is related to the law. The majority of family law professionals have little or no education, training, or formal experience in the field of psychology, and especially not with respect to the psychological principles that are applied to best-interest factors. Knowledge in this area became more critical in the last few decades after the departure from the “tender years” doctrine and a turn towards adoption of the “best interests of the child” doctrine. As such, the demand for child custody–related knowledge and the ability to apply it to contested and uncontested custody determinations grew exponentially. Even more emphasis has been placed on acquiring this knowledge base, as parents more equitably share in parenting time, thus creating the need for more collaboration between parents. This development increases the importance of positive co-parenting and addressing potential minefields in a parenting plan. In response, parent education programs were developed, custody evaluators and other neutral professionals (e.g., the guardian ad litem) became appointed with greater frequency, and various other court-involved therapies have become commonplace (e.g., co-parenting counseling and parenting coordination).

The two-legged stool of family law has been financial and legal issues, on the one hand, and child custody issues on the other. The status quo for family lawyers has been that they are generally more able to address the financial and legal issues in a divorce and less able to do so with respect to child custody-related issues. They have, therefore, tended to ignore or refer out the latter. Mental health experts have often been more frequently used in the adversarial arm of litigation or, alternatively, for support through counseling and court-involved intervention. Regardless, mental health professionals have generally been involved in a more reactive manner in separation and divorce cases. However, just as the dot.com bubble burst, so too has the family law bubble. The majority of divorcing parents cannot afford child custody, psychological, and financial experts, which is not surprising given that most insurance companies do not cover court- involved and court-ordered mental health services. Furthermore, most divorcing parents cannot afford lawyers, or they opt out of representation for other reasons, as evidenced by the estimate that eighty percent of litigants in all divorce cases are self-represented.

Quietly, or not so quietly, depending on how much attention is being paid, technology is also constantly operating in the background; it is becoming an ever-present “third-party” in the family law process. We believe that the family law industry is entering an inflection point. Rapid technology innovation is intersecting with the current disruption of decades of status quo divorce and child custody procedures that have become economically and practically unsustainable. One of the most impactful technologies,  of course, has been the evolution of the Internet. The Internet allows immediate access to information and answers, even if incorrect ones. This has created a climate where divorcing parents now often believe they know more than they do, and it has created a “do-it-yourself” mindset. You can do anything on your own now, including representing yourself in a divorce.

The changing economics of our country have prompted meaningful discourse on how to better serve the lower to upper-middle classes. Currently, legal aid services are only available to help those who are most financially compromised. It is generally not available to the lower to middle class, who also struggle to afford legal services. Courts across the country are trying to address access-to-justice issues. For example, to address the growing self-represented population, courts are now offering various free services that help to keep the court moving forward, since these self-represented litigants often slow down critical court processes. Other initiatives have also been started to try to lower costs of divorce and address the growing access-to-justice barriers, especially for those litigants who fall in that middle-class range. These initiatives include state statutory changes creating new roles such as Document Preparers and the Los Angeles County Bar’s SmartLaw Flat Fee Legal Service, which provides representation for uncontested divorces at a flat rate of $800.

Self-represented litigants and more affordable legal service delivery options are the consequences of this family law bubble burst. It is the reaction to this critical inflection point where the consumer market is now demanding that family law make changes. If the industry refuses, then litigants will continue to find ways to serve themselves more efficiently and economically, which ultimately harms the entire family law industry.

The legal industry has been one of the business sectors that is slowest to change. There is a fear of technology replacing the legal services that lawyers provide. However, technologies are not always displacing. They can be augmenting, value-building options for lawyers. The perceptions and needs of the client base have changed, thus necessitating changes in the family law marketplace. It is more important than ever for family lawyers to differentiate themselves in the divorce lawyer market. Marketing, billing, case management, and more must be done differently now because competitors are no longer just local family lawyers. Instead, family lawyers must now compete with affordable online divorce platforms, unbundled legal service providers, and other nonlawyer specialists who can assist with divorces.

In the past several years, technology has become more mainstream. Every business must be a technology business, including family law practices. However, there is great variability in the use of technology across practices. For many family law firms, new technology adoption is perceived as a necessary evil. Even basic practice management software has a low adoption rate post-purchase. There is something about the historical culture and tradition of family law that promotes the perpetual use of pen and paper. Upheaval away from this trend is growing and is being extensively written about by lawyers These lawyers have replaced their skepticism with high regard for the effectiveness of new technology, including artificial intelligence.

To get a sense of the magnitude of this change, look at Moore’s Law, which states that the processing power of computers doubles every two years. Moore’s Law has had an enormous impact on technology, society, and economics. For example, what used to be the standard legal information databases and financial processing software have been challenged by many alternatives that are faster, less expensive, and better. Similarly, as predicted by Richard Susskind in his 2013 book Tomorrow’s Lawyers: An Introduction to Your Future, “We are . . . on the brink of fundamental change in the world of law.” As we now know, Susskind accurately described market forces and disruptive technology as either displacing or augmenting what were considered traditional legal services. In the technology world, these companies are predominantly disruptive or innovative. Disruptive companies displace, while innovative companies augment; however, there can be some crossover depending on the company’s business model.

In family law, displacing technologies are evidenced by multimillion- dollar-funded companies like Walmart, Rocket Lawyer, and Avvo.  In the traditional brick-and-mortar environment, a divorce at Walmart is offered at $549.00 by The Law Store. Walmart has plans to open 1,500 store offices nationwide. There are also more agile, niche companies that are similarly disruptive, such as Fastcase and Wevorce, that offer innovative access to information and family law professionals. A third category of technologies includes those that augment traditional family law practices. These include practice management companies such as Clio and platforms for expert child custody resources such as Child Custody Analytics.

This stage in the evolution of technology might be considered “Wave 1” of disruptive and innovative family law technologies. “Wave 2” is going to include ubiquitous legal services and advances fueled by technologies that include artificial intelligence, machine intelligence, cognitive computing, natural language processing, facial recognition, and bots. For example, Automio is creating interview bot workflows that serve as an example of how client inquiries on various child custody issues could be independently automated and used by clients. Divorcebot connects with divorcees before they even engage a lawyer, provides them education about the divorce process, and could potentially provide lawyers new clients.

If you accept the theory of Moore’s Law, these advances will produce many more commercial products over the next several years. Takentogether, these market changes can be understood as being driven by technologies that have leap-frogged over traditional legal services and gone straight to the buyer—the divorce litigant. These changes have not gone unnoticed. In 2014, the ABA created the Future of Legal Services Commission, which ultimately produced the Report on the Future of Legal Services in the United States. This Report produced twelve recommendations, one of which was that “All members of the legal profession should keep abreast of relevant technologies.” This recommendation was further amplified by commentary in the report from Stephen A. Saltzburg stating, “Other professions have embraced technology more quickly than the legal profession. We must adapt to fulfill our mission and do so true to first principles.” This resulted in a pilot program called Law Connect between the ABA and Rocket Lawyer, which ultimately ended as a result of what appears to have been significant resistance from state and local bar groups. In 2011, the American Academy of Matrimonial Lawyers (AAML) expressed its intention to implement a deliberate plan to advance technology adoption, stating: “Thus, no Fellow can afford not to learn or to fail to keep up with technology as long as the Fellow is actively practicing law.”

Dealing with technological change is frightening, which is a factor that contributes to where people fall on the scale of adopting new technology. Blair Janis forecasted:

The key to our future success as legal service providers lies in our ability to identify the specific lawyering areas in which we can be replaced and those   in which we cannot be replaced. The most prosperous law practices in 2020 will be those that are able to successfully adjust their business models to      use artificial intelligence-type tools, while at the same time promoting and delivering the part of the legal service value proposition that the machines are not able to provide.

Technology adoption can be segmented into three categories: early adopters, mainstream users, and laggards. Early adopters are the quickest to purchase and adopt a new technology. They are also the group that is most accepting of a new technology’s limitations, understanding that the technology will improve over time. As a technology becomes more mainstream, the early adopters maintain the first-user advantage   of reaping all the benefits ahead of their competitors. Mainstream users eventually adopt the technology as well, in fear of being left out, while also becoming aware that change is inevitable. They are more likely to purchase the technology after they hear their colleagues are using it and these users, thus, are typically waiting for the good reviews and recommendations before acting. Laggards, however, reject change, are the last to adapt, and risk being forced out by the new market that has left them behind. Laggards generally become obsolete and displaced. This is of the greatest concern for the family law industry, since lawyers are generally considered laggards. Within the legal industry, family lawyers are the greatest laggards.

Technology change introduces new, but temporary, costs. The costs are the time involved in training to use the new technology, as well as the change in practice management workflow. E-filing is a simple example. The benefits of e-filing are the efficiency and effectiveness derived from the implementation, which is apparently needed based on the 2016 Legal Trends Report by Clio, the company delivering cloud-based practice management technologies for lawyers, which pointed out significant underproductivity. New technology introduces processes that bring value to the family law practice by saving time; saving money for clients; and providing faster, more precise solutions that better match the clients’ expectations.

Successful implementation of technology in a law firm adds to the overall effectiveness of services and value to the client. Simply put, sticking to old habits and not creating new ones is surely taking more time and costing clients more money. The actual monetary cost of the technology—through license or subscription—is one that is easily recouped by the services generated from the technology platform. The law database subscription  is paid off by billable hours of legal research and the application of this research to cases that require it. Financial software and child custody subscriptions are similarly paid off by billable hours, which are costs necessary for maintaining a competitive portfolio of services to clients. Whereas new technologies are coming in that could further disrupt family law practice, it is essential to reframe these technologies as opportunities to bring additional value—to see them as augmenting a family lawyer’s value and practice, with leaner efficiency. For example, even if an “app” is developed for producing financial affidavits, child support, and estimated alimony forecasts that can be used by self-represented litigants (and it surely will be developed eventually), the one thing the technology cannot do is provide the analysis, deep thinking, and interpretation of those data for the client, which is where the family lawyer’s expertise and counsel provides significant value to litigants.

II. The Push-Pull Tension of Technology and Family Law

In the arena of family law, the Internet has forever democratized access to legal information, legal resources, and client reviews of attorneys. However, the Internet’s current major flaw is the accuracy of the information it has made available to the general population and the absence of professional interpretation of that information. The Internet fallacy arises as that clients think they can research information on family law, finances, and child custody and then represent themselves effectively with what they have found. Even for those represented by lawyers, this still poses a problem, as clients may believe they know more than their lawyers or that their lawyers do not bring enough value above and beyond this free information that is available to them.

Family law professionals also fall for this Internet fallacy, albeit in a different manner. For example, some family law professionals will conduct a general Internet search on a child custody or psychological issue in order to find helpful information. However, this type of information is not authoritative and could ultimately be detrimental to the case. In addition, some law professionals may find a free psychological journal article or publication online and believe that it represents the “state-of-the-science” and can serve as a relevant exhibit, document-guiding strategy, or client resource. None of these conclusions are true, of course. We continue to be surprised by how often we hear, “I can just go online,” from clients and family law professionals alike. Most family lawyers do not perform financial calculations from a free, nonprofessional  site. They  also  do not typically conduct legal research and analysis from an unvetted, free legal research site. Yet, when it comes to child custody issues and the psychological concepts that underlie those issues, a free, Internet search tends to be the default response for most people, except for those few litigants who can afford expert services and for whom an expert consultant may be retained.

Interestingly, the democratization of information continues to expand, even into professional areas such as law. For example, the Harvard Law Library is in the process of making all case law public domain: “They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.” This boldly disrupts the status quo technology platforms for legal research, which a Connecticut Legal Aid lawyer stated costs about $40,000 a year. Following this model, if legal information is being democratized, it is only a matter of time before all information becomes public domain or, at the very least, broken down into the smallest commodity affordable to the average citizen.

Our original presupposition was that the “best interests of the child” factors are derived from experts in child development, child psychology, family psychology, parenting, neuroscience, attachment, and temperament. Once you cross over into the arena of high-conflict divorce, the list expands into more complicated psychological issues such as mental health, parental alienation, domestic violence, substance abuse, personality disorders, restrictive gatekeeping, and more. Day in and day out, divorces are granted and parenting plans and separation agreements are drafted and executed under the auspices of “best interests of the child” factors. However, most family law professionals and the courts do not have the knowledge base, expertise, or resources to truly meet the best interests of the child.

Families are going through one of the most  disruptive changes in  their lives when they separate or divorce. They need professionals to successfully transition them through that change as peacefully as possible. They need the courts and family law professionals to be competent in all the specialty areas that family law consists of—law, finance, child custody, and psychology. When litigants start taking the practice of law into their own hands, it can be interpreted to mean that they have stopped trusting the process and/or that they no longer see the value that legal representation can bring to their divorce. The family law community needs to respond to litigants’ current perceptions and needs sooner rather than later.

One proposal is to take a deeper look at the special issues associated with divorce, especially in child custody, and determine how we can better solve them. Parents need a parenting plan that is developmentally sound, truly tethered to child-development research, and uniquely tailored to the needs of the children in the particular family, rather than a parenting plan repurposed from a twenty-year-old template, which is of no true benefit to anyone. Children need to be able to have access to both parents in a way that supports each relationship and fosters optimal child development, and there is no way this can be accomplished without fully understanding the family’s routines, schedules, and plans. Furthermore, there needs to be  an understanding of the children’s needs and the parents’ competencies. Finally, separating and divorcing parents have needs too, which should also be recognized and addressed. Each parent will be going through his or her own transition and will need practical help about being single or starting a new relationship; learning about stepparenting and blended families; and learning best practices for co-parenting post-judgment. All these issues can easily become a legal dispute if the client is not properly educated and guided. The family lawyer is best positioned to be the counselor-at-law on these issues, whether they are pendente lite (i.e., awaiting or during litigation) or post-judgment.

These proposed best practices, however, do come with a string attached. Access to psychological information, actual psychological expertise, and the translated application of that information are frequently missing in whole or in part from attempts to deliver optimal child custody results. The absence of comprehensive parenting plans is one of the main contributors to post-judgment court involvement. Even the vast majority of mental health professionals do not have access to the latest research and expertise in all of the psychological and child custody domains. Attorneys and courts have even less access, and most have none. Thus, we collectively have an industry of family law professionals who are shepherding families through divorces and child custody disputes with either limited or stale information. If uncertain of this fact, one only needs to ask a random family attorney, guardian ad litem, family court officer, judge, custody evaluator, or litigant. If we treated preparation of financial affidavits and, ultimately, financial orders, in the same manner, it would be tantamount to drafting financial orders without using the latest child support guidelines or the latest financial software that effectively eliminates errors and potentially missing information.

Just as the rise of technology has delivered solutions to streamline and improve the process of organizing, presenting, and finalizing financial information, so too has technology evolved to effectively deal with child custody and family issues. Other than the financial concerns in the divorce, the most difficult issues families struggle with pertain to their children. The family lawyer is the professional best positioned to impart wise and expert information to clients to shepherd them through the transition from being one intact spousal entity to divorced persons. The standard ways of dealing with these child custody issues have historically been reactive and issue- focused. However, a comprehensive body of child custody information easily available to lawyers and their clients would allow lawyers to gather the necessary information for proactively guiding clients from the point of intake through the dissolution. It would also elevate the family lawyer to the position of trusted expert resource for any post-judgment issues that surface.

The implementation of technology to deal with child custody issues  on every single case is essentially a displacement of the psychological expert who has, historically, only been reserved for litigation. Child custody experts are expensive, are not readily available, and have a limited repository of expert knowledge. However, a technology platform with a knowledge base that serves as a repository for expert child custody information and resources, while also offering answers to frequently asked questions and solutions for common situations, can displace the human expert (except for testimonial purposes, as of now). It further provides the family lawyer with continual access to up-to-date information. Additional benefits to clients include saving time and money through access to expert information, providing structured and organized input to their lawyers, and optimizing lawyer-client meetings at the office or over the phone to improve effectiveness.

Unfortunately, family lawyers are notoriously dismissive of the need for technological change. Despite all the added benefits outlined above, lawyers will continue to resist or reject these necessary changes. Attorneys’ typical reasoning is based in the cost of the technology, concerns around whether they will actually use such technology, the need to integrate the new technology into workflow processes, and the training of staff on  the new technology. Some lawyers are also concerned that clients will always be dissatisfied, which consequently decreases the desire to make change. Because the daily professional life of a family lawyer tends to  be reactive and crisis-driven, it is difficult to proactively plan for new technology adoption. Therefore, although the benefits are obvious, many lawyers will remain laggards, falling behind other innovative local and online competitors until they cross the chasm of technology adoption.

 

III. Changes in the Modern Family

The landscape of American family life has changed dramatically in the last few decades, even though the estimated separation/divorce rate for first marriages continues to be around forty to fifty percent. One of the most significant changes in the makeup of the “typical” American family has been in family structure, with a considerable increase in nonmarried families with children. Currently, forty-one percent of the births in this country occur outside of marriage, which is almost three times the rate it was thirty years ago. The “traditional families” where mothers are stay- at-home parents and fathers are financial breadwinners are in the minority now, with dual working parents being much more common. The modern reality is that, now, more mothers of young children report back to work soon after giving birth. In addition, more fathers are working from home or are seeking flexible schedules that enable them to spend more time with family. Difficult work schedules or long commutes and extensive travel are commonplace, however, meaning that families often relocate due to employment changes. Children’s academic requirements and extracurricular activities are more extensive than ever. Both parents are also more involved in child raising than were previous generations— nowadays one or both parents may attend sports practices and both parents are likely to attend weekend activities and/or games. The complexities of family life in this modern era make parenting plan development much more difficult.  

Modern families also have more financial struggles than in decades past. For example, the cost of living is higher today, even though incomes remain steady. The effects of the financial crisis of 2008 linger on, which can be seen in the significant increase in self-represented litigants and divorce filings. There has also been a growing trend in separated and divorced parents cohabitating after separation or divorce, often for economic reasons. Furthermore, many families live month-to-month with little savings. Unemployment increased after the recession and, although unemployment rates have decreased, many individuals are earning less. The decrease in financial wealth and earnings of divorcing litigants has negatively impacted their ability and willingness to pay for legal services.

Mental health issues are also more prevalent today in both children and adults. In 2015, there were an estimated 43.4 million adults aged eighteen or older in the United States who had dealt with a mental illness at some point within the past year—that translates to about 17.9% of all U.S. adults. This statistic is a concern for family courts because parents with mental health issues are more likely be impaired to some extent in regard to the skills needed to parent or co-parent, and their children tend to have poorer outcomes as a result. In addition, “a total of 13%–20%  of children living in the United States experience a mental disorder in a given year, and surveillance during 1994–2011 has shown the prevalence of these conditions to be increasing.” Children with special needs such as mental health issues have parents who experience more parenting stress and conflict. These families may be at higher risk for divorce and family reorganization, depending on the type and severity of the special needs and the number of children in the family.

The modern family of today no longer fits the traditional family structure and culture of decades ago, meaning that a static determination of a parenting schedule and custody agreement is unrealistic for a family because its needs will change significantly over time. This reality makes it even more important for parents to be able to cooperatively work together in the future to meet the evolving needs of their children and family. Ideally, the legal process will enhance this capability, rather than increase the damage to the parents’ ability to work together and co-parent effectively. These families need more customized solutions for their divorce. Their problems can be vast and complex, which will require improved information gathering and more creativity in problem-solving and resolution. Each family is unique, and what works for one family is unlikely to work for another. The “tender years” doctrine has rightfully been replaced with a more individualized, customizable “best interests” doctrine. However, the best-interests-of-the-child doctrine contributes significant ambiguity and an unclear path to solutions that are truly best for each child and family. This reality is all the more true when psychological resources and child custody information remain absent from family law practice.

IV. Family Law Processes and Technology

As nonlawyer professionals, we often hear about and see the divorce process through the lens of divorcing  litigants.  What  seems  normal  and expected to family lawyers seems bizarre and even inhumane to a divorcing litigant. Lawyers live in the law and in the professional ecology of the court. In many ways, it is natural and part of the human condition to become desensitized to what is, perhaps, extraordinary or difficult, especially when faced with a limited capacity to change the process. However, for litigants, divorce often brings them to court for the first time, and this experience is deeply personal to them because it is about their families, finances, and futures. They are often in shock about the legal process, the time involved, and the high costs, especially as a case becomes more complex. They do not see divorce as a legal problem; rather, they view it as a family problem instead. They are forced into court to deal with family-based problems because divorce has been deemed to be a legal issue—yet the divorcing litigant-consumer does not see it this way. This nonlawyer mindset coincides with research demonstrating that most people do not believe they have a legal issue, when, in fact, they do. When people do not perceive themselves as having a legal issue, they then do not believe they need a lawyer—hence the issue for the legal community.

A.  From the Litigant’s Perspective: A Bird’s Eye View

There is growing dissatisfaction with the family court system and family law community, as revealed by recent surveys, professional feedback, and client reviews of attorneys. To better understand some of this dissatisfaction, one only needs to review the current precarious statistics associated with recent changes in the family court system. The volume and complexity of cases are increasing in the family court, yet courts across the country are suffering from major budget cuts and are overwhelmed with cases. In 2009, the National Center for State Courts found that twenty-five out of thirty-six jurisdictions had more cases entering the court system each year than were being disposed of in that timeframe. Cases are also staying in the court system longer. The complexity of family court cases is difficult for the court system to handle, especially with the myriad of psychological and financial issues that often impact these cases. The length and complexity of cases, thus, increases the financial burden on families who are already struggling to split finances and support two households instead of one.

Common litigant complaints demonstrate the perilous problems that family law is currently facing, and these complaints are driving much of the impetus in the current changes to the marketplace. Some themes are as follows.

  1. Divorcing litigants are frustrated with court dates that they must attend, be billed for, and ultimately experience no fruitful outcome from. Often, there is no judge to hear a motion or the parties are forced into mediation services that are deemed by them to be unhelpful and unlikely to be successful. All the while, attorneys are billing by the hour.
  2. Clients often resent the billable hour model as they do not see all professional time spent by the lawyer as being equal. For example, when there is time standing around in court, a client does not want to be billed for a professional hour when something professional  is not happening and the lawyer’s skills and training are not being directly utilized.
  3. The Court process is too long and winding. Clients often do not know what to expect in terms of how long their court case will take to get resolved. They are often shocked at the length of time that is needed and the realization that this also signals a longer period of stress and higher legal costs.
  4. Divorcing litigants do not easily see the benefits that lawyers bring to this process, which is not surprising given they often see divorce as a family problem, rather than a legal problem. Therefore, litigants are frustrated when lawyers may not have immediate answers or good counsel for them on divorce and child custody–related issues. They assume that their family lawyer should have the expertise and knowledge base in all the various aspects of family law, including psychology, financial matters, etc. Expertise in law is no longer enough to demonstrate value because client expectations are much higher, as fostered by their access to free information and resources on the Internet.
  5. Family lawyers now also have a public relations problem in that their roles are often perceived in a negative manner by the litigant community. They are perceived as an essential evil in an already evil process. Family lawyers are no longer considered experts to be respected and valued. Instead, there is a growing belief that family lawyers may increase conflict and animosity between the parties. This is hardly a value proposition or public relations message that family lawyers want circulating to potential clients.
  6. The legal process is confusing and litigants often do not know what to do or what to expect. They know they should be working on their case, but they often do not know what to do or how to do it. They need help from their lawyers, but their lawyers are often busy in court or busy with general work on other cases. They also want to avoid increasing legal bills and may, as a result, not seek help when it is needed.
  7. The whole process is too reactive and crisis-driven. Litigants are already in crisis when they become “litigants.” They are frustrated when their case is not proactively managed and problem-solved to avoid last minute issues. They would like their lawyers to bring calm to the process, but the legal process rarely unfolds in a calm way. They are resentful when mistakes are made or when emotional, family-based issues are missed or discounted. They are especially impassioned when these mishaps have a negative impact on their children.
  8. Getting a divorce is unnecessarily expensive and having a lawyer is ultimately not worth the financial costs in the mind of the litigant. Overall, litigants believe the process should be easier and more affordable.

Formal surveys have been conducted to assess litigants’ divorce process experiences and the findings support many of these aforementioned professional observations. The Cases Without Counsel  (CWC)  survey on the experiences self-represented litigants have in U.S. family courts revealed that many self-represented litigants believed that they could handle their cases on their own because they considered them lower- conflict. In these situations, litigants did not perceive the value of legal representation in their case. Additionally, lawyers were more likely to be perceived as helpful in higher-conflict cases. For self-represented litigants who previously had retained counsel, there was a sense that the attorney did not bring meaningful value. In another survey, litigants reported that their attorneys did not provide adequate guidance, information, or quality of services. What these responses ultimately reveal is that litigants are making financial decisions about the need for legal services based on both affordability and cost priority.

A family law practice is a business that delivers the product of legal services. Litigants’ complaints about family law services represent the growing dissatisfaction that the family law customer base has with the services/product as delivered. In essence, the complaints can be organized into the product domains of cost effectiveness, expediency, and product value (i.e., value proposition). In other words, the product of family law services is too expensive, is inefficient, and does not bring the value    and solutions that the litigant desires. This is tantamount to the lowest Consumer Reports review available, a red bubble for “Poor.”

B. The Evolution of Family Law

As every family lawyer knows, litigants often blame their lawyers for ineffective and time-consuming court processes that ultimately do  not resolve their family’s problems. This is one part of the family law process that is unlikely to change soon. It is also one part of the process that family lawyers do not really have direct control over. On the other hand, family courts can do a lot to correct for some of these issues. In fact, many family courts have already established innovative programs to try to address some of the perpetual problems plaguing the family court system (e.g. the legal document preparer program in the Arizona court system). Nonetheless, family lawyers are ultimately being blamed for things like the long waiting time for court processes.

Family lawyers can contribute to meaningful change in the greater family law community by modernizing their practices as a way that helps address much of the growing dissatisfaction of their clients. Modernization through technology can be a fundamentally lean and agile approach that family lawyers do have control over and that they can use to proactively respond to family court system problems. Technological resources are available to help decrease costs, increase efficiency, and deliver higher value. Alternatively, new legal service delivery models have also been introduced, such as the unbundling of legal services or the provision of legal-related services by nonlawyer legal specialists.

If family lawyers want to retain their place in the legal marketplace, they need to adapt to meet the growing needs of their clients. It has been fascinating to observe how many lawyers and states have resorted to alternate legal service delivery models before considering implementation of augmenting, value-building technologies. Ultimately, unbundling  legal services and services by nonlawyers represent “displacing” models to family lawyers. These models could lead to a displacement of family lawyers or to a substantial decrease in revenue for them. As is, family lawyers have to take on more cases and work more hours to earn the revenue that previous family lawyers earned decades ago. In addition, legal services delivered in alternative forms really only addresses the cost-effectiveness part of the problem—these alternatives do not address expediency, effectiveness, or value. Furthermore, they fall deeply short of effectively serving the legal needs of the community. Being represented by a family lawyer would, in fact, be most helpful to the litigant and to the overall court process, even if the litigant may not believe that.

Technology solutions, on the other hand, can augment family law practices and address many, if not all, of the problem areas identified by divorcing litigants. For example, there are multiple technology solutions available to help family lawyers do their job more effectively, especially within the multidisciplinary areas of family law (e.g., online legal research sites, financial software, online child custody platforms, etc.). Because divorcing clients are in a state of crisis, they tend to present information in a disorganized fashion and that disorganization creates a  vicious  cycle of underproductive client-attorney meetings. Family lawyers can improve the cost effectiveness of their services by providing their clients with documents, forms, and guides that will assist clients in gathering, presenting, and organizing relevant information for their case. Automating this process with the use of technology subscriptions will decrease the unnecessary, low-value billable hours often associated with family law services.

To replace this lost revenue, family lawyers can utilize expert knowledge and services to enhance their overall value. For example, clients are willing to pay for helpful research and expertise on their child custody and family issues and they are more likely to pay for a client meeting where their family lawyer shares wisdom and knowledge on the subject of child custody. Basically, clients expect a counselor at law. Within this role, family lawyers can highlight their expertise in information gathering and problem solving. Clients perceive the counselor-at-law role of the family lawyer as professional time that warrants a billable hour. They are paying for an “expert” and, therefore, expect expert, professional time. It is important for family lawyers to replace low-value billable hours with high-value billable hours. The availability of online knowledge bases and expertise as a result of technological advancements offers family lawyers a path to this transformation. This particular subset of technologies often offers the three-pronged solution that is needed to address the key problems of cost-effectiveness, expediency, and value.

C. Imagine If: The Current Modernization of the Family Law Practice

A family law practice can no longer rely on previous business processes, as they are no longer effective and, in fact, can be detrimental to an individual practice and to the practice of family law in general. Family law practices need to modernize so that they can better address their clients’ concerns and complaints. Fortunately, technology solutions now provide an opportunity to turn imagination into reality. From client intake to case closure, modern family law firms can utilize such new processes to improve cost effectiveness, enhance expediency, improve effectiveness, and increase high-value billable hours.

  1. Client Intake
    A good intake can be likened to the foundation of a house. Intakes  that are oriented towards gathering all the relevant information about the family would include information about the parents, children, schedules of all family members, parenting history, and more. This critical information can then be used to craft a parenting plan based on the best interests of the child that will serve the family well. Similarly, clients should be given informative, expert, resource guides to help them deal with the ubiquitous issues of conflict, such as overnights with young children, shared parenting plans, blended family and stepparent issues, domestic violence, relocation, addiction, and more. The elegance of technology is that it allows litigants to organize and prepare this information for their lawyers in a budget- sensitive, comprehensive, and useful methodology so that the family lawyer can issue-spot, plan, and implement client-centered outcomes.
  2. Discovery
    Regardless of whether the case will head to  trial,  family  lawyers must do their due diligence in gathering discovery and being prepared  for potential trial. Of course, this process is also an area where clients may feel considerable frustration around cost, since many litigants may not see their cases as contested or complex. Therefore, family lawyers need to offer cost-effective, efficient documents and forms that clients can use to gather, present, and organize relevant information for discovery. Discovery forms naturally flow out of an intake that covers the A-to-Z of child custody issues. As an example, if a client is considering relocation, the client can complete a form that asks for relevant information and evidence to address the psychological and legal risk factors associated with relocation. The client then can present this document to his or her lawyer so that the lawyer can subsequently utilize professional expertise to better plan the case. With this approach, there are no costs to the client at the information-gathering stage, and the lawyer will later engage in high- value, case-planning billable hours on behalf of the client.
  3. Client Management
    Clients’ expectations have changed considerably over the decades, and they now expect more for less. They want a counselor at law in their family lawyer, but many clients may struggle to pay for their lawyer’s time with them. Therefore, family lawyers must find innovative ways to educate and guide their clients while keeping legal costs down. Currently, clients spend hours researching information regarding their concerns for their children and how they relate to both a temporary and final parenting plan. When divorcing parents are fighting about a consistent bedtime for their four-year- old, they may turn to the Internet for an answer. When one partner starts dating, the question may arise about when is the right time to introduce   a new partner to children. Providing clients with expert information is reassuring to them and adds the “expert” professional value that clients expect in their family lawyers. Clients expect their lawyers to be experts in everything family-related, rather than expert only in law. They also do not want to pay for experts in other fields unless it is absolutely necessary. To remedy this, cost-effective business processes (like client resource guides on common child custody issues) could be provided to clients to help educate and guide them. Expert answers and expert information in other specialties such as finance, child custody, business, and real estate would also be particularly valuable to clients, who often expect practical solutions to their problems in addition to answers to their questions. These time- and cost-effective methods bring forth considerable value to the client and can greatly improve the lawyer-client relationship.
  4. Drafting and Settlement
    Most cases settle, thereby making drafting an important part of the family law process. A final parenting plan is ultimately the final product by which a family lawyer will be judged by his or her clients. Problem areas that are ignored or overlooked often turn into post-judgment issues, increasing litigants’ legal costs and frustrations. In addition, parents believe that the final parenting plan will represent their children’s best interests. However, without a customized plan that truly addresses the unique needs of the family and children, the final parenting plan often does not truly represent the best interests of the children.

    Modern families are quite different from those of decades past, and today’s children often have more complex needs and their families have more difficult pragmatics. Therefore, parenting plan templates that promote more customization around the unique needs of individual children and families are necessary for better serving clients and truly meet the best interests of the children involved. For example, if there is a young toddler, an automatic parenting plan template to address the unique needs of    this developmental stage is necessary. If a child has special needs, the parenting plan will need more specificity around decision making, given the more complex needs of the child. Once again, child custody-related technology can assist family lawyers in producing a final product that is truly consistent with the best interests of the child and family, while still controlling costs for clients.
  5. Litigation
    Litigation only occurs in the rarest of cases, but when it does, it requires an unprecedented amount of preparation, time, and cost. Lawyers and experts must be armed with the most current expert information and well- organized, case-specific information. It is typical to use subject matter experts and nontestimonial experts in preparing for the cross-examination of testimonial experts. However, unless you are engaging a true academic expert on a particular subject matter, most forensic practitioners will have to review the latest research. This takes significant time and incurs equally significant costs. If the testimonial expert could be provided a dossier of research and information on a particular subject, it would allow the expert to focus mainly on his or her testimony, thereby decreasing litigation- related time and costs to the client. Litigation is already expensive, but having access to cost- and time-reducing technologies will help to control some of these costs. In particular, technology-based expert knowledge bases will assist in this domain. In addition, having smaller expert engagements that are not based on retainers of thousands of dollars will also help. Sometimes a small discussion or engagement with an expert will be particularly helpful in a more budget-conscious case.

 

V.  Embracing Change versus Being Displaced

Technology is here to stay, although only in the sense that today’s technology will be obsolete again in a few years or probably even sooner. Technology companies directly servicing divorce litigants are receiving unprecedented amounts of research and financial investment. They are there to replace legal services and remove the need for a lawyer. In other words, their sole objective is to displace family lawyers. Unfortunately, much of this recent investment in displacing technologies  emanates  from the resistance that lawyers have shown in adopting augmenting technologies. Legal technology was a sector that was highly invested in and then, unfortunately, did not demonstrate the financial successes that investors expected. The laggard adoption of technology in the legal industry ultimately brought forth what family lawyers most feared— displacement. Legal technology moved away from serving lawyers and, instead, now directly targets lawyers’ clients, which is the utmost example of technology displacement.

Fortunately, there are many technology companies that are focused on augmenting current family law services by helping family lawyers respond to the new needs of their client marketplace (i.e., to the fact that clients want more affordable, yet also more valuable, services). Family lawyers need to revamp their value proposition in a way that allows them to stand out and ahead from the ever-increasing technology solutions directly available to potential clients. This is critical to avoid professional displacement. The majority of divorcing litigants will follow standard economic trends and engage with a service that they deem is affordable and will “do the job.” Technology innovation has made it impossible not to believe that jobs typically performed by people can now be better performed by technology platforms. This is the ideology that all human service professionals are facing. The question needs to be reframed to determine how one will compete with these growing market forces and new technology services and still be able to succeed.

We now exist in a knowledge economy that places a premium on instant access to result-driven information. However, a recent Harvard Business Review article discusses the concept of the human economy, which reminds us of the intrinsic value we must place on the people who are the clients. Family lawyers have the unique advantage of being in a position to leverage both of these economic principles. This is most optimally accomplished by using technology to efficiently deliver the high-value child custody and family information the client is seeking. The family lawyer is already the expert best-positioned to educate and counsel his or her client and, when armed with multidisciplinary, expert information, the family lawyer can augment his or her professional services, reputation, and client-centered outcomes by being a modern version of the counselor at law.

In our view, family lawyers will change and adopt new technologies as long as the technology is easy to use and generates new revenue or augments existing revenue. In particular, family lawyers should adopt technologies that enhance their brand and deliver a kind of value that aligns with client expectations about time, cost efficiency, and effectiveness. We assume that, if you are in the family law business, part of your brand includes being known for successfully resolving child custody disputes for your clients. If you need to elevate this aspect of your professional identity, there is no better time to do it than now. It can be done affordably and effectively and can expand your portfolio of services. It requires building in new, high- value billable hours and also creating a more positive emotional experience for clients by providing the efficiency and effectiveness they are seeking.

Practitioners within a family law practice should meet annually to develop a strategic plan that includes the implementation of technology, a line item in the annual budget for it, and how technology will elevate the firm’s market presence and customer experience with the firm. Relationships with clients will remain the most relevant currency for future services. As expert information continues to become more precise, instantly available, and customizable to the individual family, clients’ demands will further increase. They need to be met where they are, and that can only occur if the firm possesses adequate technology-driven knowledge resources to compete with the larger online legal services market. This online legal marketplace is poised to become the largest disruption in the history of the practice of law.

VI. Conclusions

The legal industry is a profession built on tradition and stability. Change is not a principle that is valued in the law or in daily practice. Technology is one of the most aggravating forces that family lawyers have had to contend with in modern history. Its impact is widespread and carries with it dizzying consequences. The rapid rate of technology change makes it difficult for lawyers to stay abreast of new technology developments and their associated impacts. The “laggardness” of the family law community is understandable, even if it is detrimental to their own best interests.

Family law is at a profession-changing crossroad. The traditional model of delivering legal services to parents who are separating or divorcing is no longer working. If family lawyers continue to resist technological change and keep doing everything as they currently are, they will substantially increase the possibility of becoming displaced by disruptive technology and more affordable, innovative legal service delivery models. In essence, what they fear most, they will ultimately create. Alternatively, family lawyers can embrace the positive changes that technology has brought forth and use these augmenting technologies to address the growing market pressures of their consumer base.

The affordability, efficiency, and value of legal services must be prioritized by family lawyers to help preserve their professional dominion in the marketplace. A key direction that family lawyers can go is to enhance their counselor at law role, especially in the area of child custody. They need to move beyond advocacy and integrate the additional roles  of teacher, problem solver, and counselor at law. A multidisciplinary approach can be helpful to the separation/divorce process, particularly in the area of child custody. However, when funds are limited, the use of other specialists becomes more unlikely. Technology provides a unique approach to addressing the multidisciplinary needs of separating and divorcing families. For example, an interdisciplinary knowledge base is requisite for family lawyers to be able to take on these additional roles in a more regular manner. Augmenting technology solutions, especially ones that fill this multidisciplinary need, can help address the often-ignored child custody issues in a case. The expert counselor at law will now be able to provide knowledge, expertise, answers, and solutions to his or her clients on ever-present child custody issues. Family lawyers will be able to more effectively serve their clients and reshape separation and divorce to truly be in the best interests of the child.

The current technology chasm must be crossed by the family lawyer. Not doing so will have devastating consequences, such as the family lawyer becoming obsolete, displaced, and financially undermined. In a knowledge economy, technology provides the affordability, efficiency, and effectiveness of the answers and solutions that litigants expect. Law firms that augment their practice with technology will continue to thrive in the changing family law marketplace. Those law firms that resist will be replaced in Darwinian style. The future of family law rests on its members and is in the hands of the area’s professional leadership who must, as a whole, encourage the continued elevation of the practice of family law. As presented earlier within this article, an answer to one critical question will determine the fate of family law: Will family lawyers listen and appropriately respond to the current tidal wave of market forces? We hope the industry’s answer to this fateful question is resolutely affirmative.

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    Linda S. Smith

    Ph.D, Co-founder, Child Custody Analytics, LLC

    Eric Frazer

    Psy.D., Co-founder, Child Custody Analytics, LLC