Lawyers Behaving Badly –
Behind the Scenes at Connecticut Family Litigation Firms
Karen A. Stansbury, Attorney at Law
Founder and Co-Chair, Professional Women’s Alliance of Connecticut, pwa-ct.com
January 4, 2010
Divorce can drive a rational person temporarily insane. Divorce Litigation is an invasive and disgusting experience, whereby packs of strangers are suddenly nosing around in one’s personal affairs, controlling one’s actions, and barking orders in one’s face.
Regardless of the reasons for the breakdown of a marriage, the lawyers involved are largely responsible for whether their clients emerge from the process as balanced specimens of humanity, or traumatized wrecks.
Types of Divorce Litigation Lawyers
“Bread and Butter” attorneys practice in various other areas of the law, such as real estate, personal injury, or collections, and only take on matrimonial files to make extra money. The danger in hiring this kind of lawyer is that although s/he may have done a terrific job drafting your will, s/he knows very little about family law.
“Good Ole Boys” are the more senior lawyers in the Family Bar, and this group includes some female practitioners as well. These folks have been cranking out divorces together for thirty to forty years, and are stuck somewhere in the 1960’s, in terms of what is due to each party in a Connecticut divorce in the twenty-first century.
“Warriors” usually have the best of intentions, but their actions can be anything but helpful. These attorneys want to fight your fight, regardless of practicality, reasonableness, or cost, as long as you are able to pay their bill.
“Conveyor Belt” attorneys have so many open files, and so many hearings and trials scheduled, that their clients are helpless prisoners to their lawyers’ date books, and all the other files that take precedence to them in the line-up. Telephone calls and emails are rarely, if ever returned, and frustration levels are high.
“Sharks” are abusive and controlling bullies. They behave outrageously to each other, to their clients, to their client’s spouses, and even in front of judges in court. “Sharks” charge huge hourly fees, and people pay them.
Common Traits to All Categories
Regardless of type, divorce litigation lawyers all enjoy making money from drama.
They draw in prospective clients by talking loud and fast, thereby simulating confidence in areas they may know little about, such as financial planning, pensions, or tax.
They hook their retainers by promising the moon in terms of distribution of assets, but the reality of the judgment is often much less.
The emphasis is always on going to court. This is where they make their money, as much time is wasted waiting to see a Family Relations Officer, and then waiting again to be heard by a judge. It’s all billable, including round trip travel.
The larger the staff in the law firm, the more hours that are generated on a single file. Every lawyer, paralegal or intern who reviews a file is charging an hourly rate to do so. This means that if three or four different attorneys from one firm have been to court on a case, every one of them has been paid to learn the file.
There are often too many cooks in the kitchen: documents may be reviewed by secretaries or paralegals, and placed in the file, but the attorney(s) involved may have no knowledge of the item(s).
Due to their packed schedules, divorce litigation attorneys don’t do their homework until the last moment, thereby generating even more stress, and expense, for expedited transcripts, appraisals, tax calculations, etc.
Paralegals are utilized for important detailed work such as financial affidavits, as the law firm can then bill out the time. It is far more prudent to hire a certified financial planner to generate documents of this nature. Lawyers don’t make money by farming out work to other professionals.
Ego is often a huge factor. They want to appear to know it all: mortgages, taxes, pensions, estate planning, real estate, credit card debt, probate.
They do not make money from settling divorce cases quickly. They prefer to stir the emotional pot, file motions, conduct depositions, and fire nasty-grams back and forth. Maintaining attack mode generates fees. War is lucrative.
Equitable Distribution, or Popularity Contest?
Divorce litigation attorneys lecture their clients that “we have to make the judge like you.” Connecticut is a fact pleading state, and every case is fact specific. The statutes and caselaw give family judges in Connecticut wide latitude to determine what is fair and equitable in terms of alimony awards, and final division of the assets, based on the legal theory of equitable distribution. Therefore, much emphasis is placed on how clients “behave” at conferences, at hearings, at depositions, and especially at trial. In essence, each attorney is assessing her/his ability to shake up the opposition’s client in front of a judge.
The question here is obvious: are financial awards in Connecticut based on fairness, or is the emphasis on acting ability?
Knee-jerk Behavior Regarding Homemakers
Homemakers are easily the most vulnerable witnesses. Regardless of gender, a stay at home/care giving spouse has been out of the work force, often for years, and is terrified about his/her financial future. Fear and panic do not make for a balanced client on the witness stand. The wage earner spouse’s attorney is not only aware of this problem, s/he is basing her/his cross examination tactics on it.
The typical cross examination will consist of attacks, devaluing the Homemaker’s contribution to the marriage. The implication will be that s/he has depleted the assets by unreasonable spending, while contributing nothing. Opposing counsel will spend innumerable billable hours at depositions, reviewing bank and credit card statements line by line, pummeling the Homemaker with abusive questions, working on already fragile emotions, hoping that s/he will ultimately crack.
How does this sort of behavior have anything to do with fairness, or professionalism?
Proposed Solutions
Pre-Nuptial Agreements
Post-Nuptial Agreements
Marital Mediation
Divorce Mediation
Collaborative Divorce
Un-bundling of Legal Services (see below)
Change the Approach
The fact is that most Connecticut divorces are still litigated. Mediation and Collaborative Divorce are not viable options if one spouse is determined to remain in War Mode.
The best way to mitigate stress in a litigated case is to know from the beginning what kind of lawyer you are looking for. A good attorney will begin the initial interview with the following questions: What are you looking for in this divorce? What kind of new life do you want to pursue? What, if anything, are you afraid of? Ask her/him questions: Do you conduct four-way conferences? Have you had Mediation training? What is your firm’s ratio of settled matters versus tried matters? Is it your practice to file numerous motions?
Many Mediators are attorneys, who will still take on litigation cases. If you find that you and your spouse have to be divorced in the traditional court process, search for a lawyer who has had Mediation training. They will minimize stress and frustration, and almost certainly cost.
Another option is the “un-bundling” of legal services, whereby lawyers may be hired for specific purposes such as the calculation of child support payments, recommendations for the division of assets, or review of separation agreements. These attorneys do not file appearance forms with the court, and the parties represent themselves, pro se. As a result, the spouses remain in control of their divorce, and the lawyers are on the sidelines, giving advice where needed.
Conclusion
The Connecticut Bar Association oversees the behavior of Connecticut attorneys. Implementing changes in the rules regarding professional conduct is possible. The options proposed above call for carefully drafted changes in the ethical rules for Connecticut lawyers. Do research. Write letters. Attend talks. Ask questions. Maintain a proactive stance. Reclaim your power. Take charge of your life.
Lawyers Behaving Badly – Behind the Scenes at Connecticut Family Litigation Firms
©2010 Karen A. Stansbury, Attorney at Law
