You decide to hire an attorney to represent you in a custody case that’s scheduled for January. You searched google for a local attorneys and called the first one that popped up. You met with the attorney (let’s call him Mr. Smith) and paid what you thought was a reasonable fee. The attorney told you everything he want to hear, and you leave there thinking your case is a slam dunk. Mr. Smith tells you “I don’t use email but call me anytime, day or night.” You think, “wow, my case is a slam dunk and I get 24/7 access to my attorney … JACKPOT!”
About a week after you hired him, you called the number he gave you to access him 24/7. You’re expecting it to be his cell phone but it’s the office. You think, “okay, maybe at night he forwards his calls to his cell phone, no big deal.” You leave a message with the secretary and a few days later, realized you didn’t hear back from him. So you call again. You leave another message and again, you don’t hear back from him. You had a few things to tell him that may help your case even more, but you didn’t think it was such a big deal. You already thought your case was a slam dunk, this would just be icing on the cake. No big deal. You go into Court feeling confident.
Then you watch as the Judge smacks down every argument of your lawyer.
YOU’RE SITTING THERE IN DISBELIEF THINKING
“HOW DID THIS HAPPEN?”
As you are watching this defeat play out, you realize Mr. Smith oversold you on the strength of your case and didn’t have the experience you thought he did in family law. You’re upset and when you speak with Mr. Smith after Court, he matter of factly tells you “I’m sorry but we did what we could with the facts we had. Unfortunately, we simply cannot predict what the judge will do. But if you want to appeal, we can discuss the cost for that.” The next day, you get a bill in the mail from Ms. Smith. You owe him another $1,000.00!
You are seeing R-E-D. Your hard earned money just went down the drain in less than 30 minutes and then he has the audacity to send you a bill for even more money. How did this happen is all you can think. While there’s no guarantee you will win your case, the reality is that you picked the wrong attorney for your case. Why was that attorney wrong for your case? How could you have known he was wrong for your case? Let me tell you!
Don’t be fooled, all attorneys are NOT created equal
Yes, all attorneys are attorneys. We all graduated from law school and passed the bar exam. But that doesn’t make us all equal. Why not? We have different areas we focus on, different approaches to working with clients, different ways we charge our clients, etc. Let me explain each one and how it caused you to lose your hypothetical case.
1. You didn’t ask Mr. Smith about his experience in family law.
You assumed, since he’s a lawyer, that he can handle your custody case. What you didn’t know is that for years, he focused primarily on real estate law, but business has slowed down a bit in the real estate area so now he’s accepting all types of other cases that come in the door. Why should this matter? He’s a lawyer, right?
Yes, he’s a lawyer. But hiring an attorney who does not practice in family law can affect your case. A lawyer that doesn’t usually practice in that area may not be familiar with the statutes and cases that govern family law cases. That means the lawyer is not making the strongest legal arguments when arguing your case to the judge. Judges are bound by the law, not emotion. Your lawyer arguing for you to have custody because its in the child best interest but not explaining to the Judge why or how doesn’t help your case.
Since Mr. Smith didn’t have a strong understanding of NJ custody laws, he told you “both parents have equal rights to the children, I don’t see any reason why we can’t get your residential custody of the children.” What he didn’t tell you, or didn’t know, is that, although that’s true, both parents have equal rights to the children, a few of the custody factors in your case weighed more heavily in mom’s favor because:
transferring custody to you would require the children to switch school districts in the middle of the school year (which Judges do not like to do)
Mom has a final restraining order against you which makes it more difficult, but not impossible, to get residential custody of the kids; and
You’re living in a 3 bedroom home but have 2 roommates, so the children won’t have their own bedroom, they’ll share a sofa bed in the living room.
Had your attorney been more knowledgeable of the laws, your attorney should have told you, “Look, we can try for it, but we have an uphill battle. Before we file this Motion, you should work on getting better accommodations because the children don’t have somewhere to sleep. Sofa beds are okay for weekend parenting time but for them to live there full-time, you really need better accommodations for them to strengthen your case. Also, the kids would have to transfer schools which the Judges don’t like to do in the middle of the school year. And since it’s only January, the Judge may not be willing to decide that custody will be transferred at the end of the school year, which is 5 months away. A lot can change in 5 months. So you may want to consider holding off on filing the motion until it’s closer to the end of the school year”
2. Mr. Smith told you what you wanted to hear to get the sale
There are some attorneys out there who will tell you what you want to hear to “get the sale.” Then if you lose your case, they cover themselves by telling you “we can’t predict or guarantee what a Judge will do.”
That’s not what a good attorney will do. A good attorney will tell you where your case is weak at. What Mr. Smith should have told you was we have some weaknesses to our case and some hurdles we have to overcome (see the bullet points above). So we will be fighting a bit of an uphill battle but let’s gather all our evidence and put on the best case possible. That’s what a good attorney would do.
3. Mr. Smith was difficult to reach after you hired him.
You expect you may not always reach your attorney when you call but at the very least, you expect a call back within a reasonable time. Mr. Smith never called you back but instead, peppered you with questions the morning you arrive at Court for your hearing. Some of those questions are new, but many of them are questions he asked when you first met with him. You’re also given a copy of the Certification he filed for you. You remember signing a page when you met but expected to be able to review it before it was filed. You didn’t get that chance. And it’s full of incorrect information.
This happens more often than it should. I’ve seen and heard it from new clients. I hired my attorney and didn’t talk to him again until Court, or the night before. He never returned my calls or emails. Your case should be just as important to your attorney as it is to you. p.s. Failure to effectively communicate with clients is one of the leading causes of malpractice complaints against attorneys.
4. You were not clear on the billing structure for your case.
You thought you were getting a great deal. You made a payment up front and thought that was it. You weren’t expecting a bill after Court. What happened? You didn’t realize you were being charged an hourly rate instead of a flat fee. You’re probably thinking, “well, what was that payment up front?” That was the retainer. Think of a retainer as a down payment. That’s billed against by the attorney at a rate that is probably between $250-$500 per hour depending on your attorney. The retainer probably covered most of the work done before going to Court and the bill after Court was for the work that exceeded the cost of the retainer. Many attorneys charge hourly rates. That’s why many people do not hire attorneys, the fees can skyrocket, and you can find yourself with a legal bill you can’t afford.
So what should I have done differently?
Ask all attorneys you meet about their qualifications. Not simply are you an attorney but how long have you been practicing in family law. There’s a lot at stake in family court, you want an attorney who is very familiar and experienced in that area of the law. Think of it this way, teachers specialize and limit their teaching to a particular grade or subject. You wouldn’t ask a 2nd grade math teacher for help with an 8th grade history assignment. They’re both teachers but you want someone who has experience and knowledge in your particular issue. Keep in mind most attorneys don’t keep track of wins and losses. So that’s not the best question. How long have you been practicing law? How long in this particular area? Can you briefly explain what I am required to prove under the law in order to get what I want? Questions along those lines are the most helpful for you to determine if this attorney is even qualified (in your eyes) to represent you in this matter.
Ask the attorneys you meet with point blank “what are the weaknesses in my case?” While most cases carry some weaknesses, even if minor, you should be wary of an attorney that says “oh, you don’t have any at all” or that tell you “it’s a slam dunk.”
Ask “how am I being billed for this?” You want to be clear if it is a one-time flat fee, a flat fee plus an additional fee (i.e. flat fee plus filing fee or flat fee plus additional court appearance fees) or an hourly fee. Be sure you understand exactly how you’re being billed and what your cost includes and does not include.
Hire someone that you are comfortable with. An attorney-client relationship involves trust. As attorneys, we trust our clients will tell us the truth (no matter how ugly it may be) and will pay the fees they agreed to. As clients, you should be able to trust that your attorney is doing what’s best for you and with your consent. If you feel like the attorney is dismissing your concerns, ignoring you, talking down to you or otherwise makes you feel uncomfortable speaking with, then that’s not the attorney for you. Every attorney is not for everybody. It really depends on what you need.
So before you meet with any attorney, think over these things. And don’t be afraid to ask these questions at the meeting! Also, before you meet with an attorney, or decide to hire one, vet them first. A few suggestions:
And our trusted friend, the internet. Enter their name in a search engine and see what pops up. Now, not everything online is accurate so keep that in mind. And inevitably, during a career, an attorney may get a few negative reviews. Maybe the attorney did something wrong or maybe the person just had unrealistic expectations. So keep that in mind as well. But if you’re seeing a ton of negative reviews, you may want to consider that.
Do your homework! Be selective with who are trusting to help you protect your must treasured asset: your family.