HOW YOU CAN INCREASE THE COST OF DIVORCE LITIGATION

Most clients are very much interested in saving money on attorneys' fees. As lawyers will tell them, the ways to serve a client economically and reduce fees and costs have all been carefully thought out, and the lawyer operates by these guidelines ­p; but saving money is a dubious proposition when you can't control the other side. Perhaps what clients really need to hear is what kinds of things they may choose to do that will have just the opposite effect, and to run the costs up.

NOT LISTENING

Given the fact that talk is cheap until you talk to a lawyer, you would think that all clients would listen carefully when getting advice from the lawyer they have paid to serve them. But of course this is not so. Many clients are so interested in expressing themselves, conveying a well-defined idea of exactly what they desire, or making other important points for the lawyer's edification, that they do not even hear this highly expensive lawyer advice they have paid so much to get.

They don't take notes, and they seem to lose the prepared notes that the lawyer gives them. This means that they continue to ask the same questions over and over again, to ask questions that clearly indicate they weren't listening, and to make demands that they have already been told, politely and patiently, why it is useless to make.

LISTENING BUT STILL WANTING TO UNDERSTAND EXACTLY, PRECISELY, AND IN INFINITE DETAIL.

The lawyer can certainly explain things over and over, especially at $100 to $500 an hour. The lawyer will gladly re-explain, but very soon, since it manifestly appears you are not listening, the lawyer will start putting it in writing. And the more times you want it re-explained, so that it looks like you cannot read or have a nasty habit of playing dumb for some ulterior purpose, the lawyer's letters will get longer. As a client you should remember that if you are not paying for these letters by the hour, you are surely paying or by the line, or by the word.

LITIGATION AS RECREATION

For God knows what reason, there are clients out there who are more intent on displaying their talents at playing a grand role in a memorable dramatic scene than they are in winning their cases. Striking the kind of pose that people will remember, doing something they think no litigant has ever done before, and no spouse or offspring will ever forget, is far more important to some clients than listening to the lawyer's advice about how not to lose credibility with the judges and lose the case entirely.

Even worse than this, some clients apparently see things on TV, probably in soap operas, or find them out on the Internet or at the Women's Counseling Center, which simply do not fit at all into the sensibly-run divorce case. They want to see the lawyer's time spent on these things, but probably feel that the lawyer is getting so much entertainment out of it that he or she should not charge for the experience. They cannot seem to grasp that all this extra activity, plus the fruitless explanations of the lawyer as to why it is a bad idea take time ­p; lawyer time ­p; and thus cost money.

LITIGATION PERFORMANCE AS REVENGE, ETC.

Closely related but even more common is the client's desire to make decisions and do things in litigation for reasons of vengeance, vindication, validation and similar delights. Often the client will explain that this should be done in order to show the kids something about the other parent, poison the new marriage, or to exact punishment. The conscientious lawyer tries to explain that all that is all very well, and as a value-neutral modern person he wouldn't think of being so judgmental as to condemn it, but (A) it isn't helping the kids one bit; (B) it will cause the other side to do some exceedingly troublesome things, all of which will have to be responded to by counsel; (C) it is highly likely to cause loss of credibility with the judge; and (D) because it doesn't accomplish anything useful in the conduct of focused litigation, it does amount to a waste of lawyer time and the money that it represents. Clients who don't want to hear that will soon be into some really serious expense.

PAYING AN EXPERIENCED LAWYER FOR EXPERT ADVICE AND THEN DISREGARDING IT

To a lawyer this seems like crazy behavior, but it is popular with clients, no matter how much they are paying for a lawyer's advice and judgment. Perhaps it is because of the widespread degradation of the legal profession today, to which lawyers have certainly contributed. Clients of course have the right to feel that their lawyer's advice is worth nothing, but then why did they pay for it ­p; or at least contract to pay for it ­p; in the first place? People seem to have a fatal disposition to get their legal advice at the gym, at the support group, at the Women's Center. at cocktail parties, and to an astonishing degree, from their estranged spouses. And now of course they get it off the Internet. And as they all know, the Internet is where the law comes from. Whatever you read on the Internet is the law, and whatever you read on the Internet is correct.

ARGUING WITH YOUR ATTORNEY ABOUT LITIGATION DECISIONS

Yes, it is your money, your case and your life, but the lawyer is not going to do something that all of his or her training and experience indicates is wrong, simply because an amateur says so. The lawyer may do it once in her career, but if the career doesn't end right there, it will be swiftly followed by the realization that it is the stupidest thing an attorney can do.
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PLAYING LAWYER AND SECOND-GUESSING EVERYTHING THE LAWYER DOES OR SAYS

This of course disregards the fact that it is the lawyer's business, and has been for years, to know everything about the applicable state's law, the local court and the local judges. Comparing everything the lawyer says and does with what the Women's Center says and what one can read on the internet is a fascinating diversion, sometimes for the lawyer as well as the client, but it does take vast amounts of time. The lawyer who resists doing it by ignoring the client's demands and questions of this kind altogether or just brushing them off is trying to save the client money without getting into an exhaustive explanation of why the lawyer is trying to save the client money. The lawyer who reacts in thorough and careful fashion, in writing, is certainly warranted in doing so, and deserves and expects to be paid for the time wasted in this manner at the client's behest. Many of the best lawyers strive for a balanced middle approach which can't be called dismissive, but still endeavors to cut the nonsense short and save the client money in the form of lawyer time. But some clients will have none of that. And usually it is exactly this kind of client who won't take yes for an answer, and every explanation is unsatisfactory and generates demands for re-explanation more satisfying to the client.

Actually, three years of law school do teach lawyers something, and a lawyer's years of experience and practice teach much, much more. Clients do not begin to know what the law is, where it comes from, where it goes, what you can do with it and can't, and what is law and what is not. These truly basic things are what you learn in law school. Among the many things the lawyer knows by experience is what the local judges absolutely won't do, and perhaps a little bit about what they will; and especially what they really don't want to hear and what they really don't want to see. The latter includes behaviors that waste the court's time, hurt other parties and innocent children unnecessarily, and for which the judges exact, sooner or later and in some form, an appreciable measure of punishment.

The lawyer knows about these things, and disregarding that advice is about as stupid as a client can get. Even if the lawyer has only a vague feeling about these things and cannot cite chapter and verse to back up the advice, it deserves listening to and the money spent on it is money well spent.

TELLING YOUR LAWYER YOU DO NOT WANT HIM/HER WRITING YOU LETTERS, BECAUSE IT COSTS MONEY

This will simply cause the lawyer to write more lawyers explaining why letters have to be written, or it will terminate the lawyer-client relationship. That may sound like a good thing to you because you are replacing a lawyer who won't do everything that you demand. However, you are going to have a very difficult time finding a lawyer who will do everything you demand, even if it looks like it will go that way at the initial interview, before the lawyer really gets to know how demanding you are and before your demands change from the plausible to the impossible.

You are likely to go through quite a lot of lawyer-shopping time and money before you find one who even gives the illusion of being ready to stand at attention, salute and instantly execute all your demands, and the process of changing lawyers necessarily entails some substantial expense because of the time it takes a new lawyer to get read into your case, tell everybody that a new lawyer is on the job, and make certain formal changes with the court which many of the courts demand.

"COMPLETED STAFF ACTION"

The all-time dumbest thing a client can do is to start preparing the legal papers and correspondence for the lawyer to sign and send out, in a perverted form of what bureaucracies call "completed staff action." Lawyers aren't going to accept that, because of the huge responsibility that they bear for the client's case and welfare, and the ethical rules that require them to use their professional training and professional judgment fully and independently. Vast amounts of lawyer hours will be spent explaining ­p; and it will be in writing, you may be sure ­p; why each thing the client wants signed and sent out is not exactly right. If the explanation is swift or gruff it may enrage the client, but the more patient, polite and sensitive it is, the longer it must be and the more it will have to cost.

TELLING THE LAWYER THAT IN ORDER TO SAVE MONEY YOU WILL NOT COMMUNICATE WITH HIM, BUT ONLY COMMUNICATE WITH YOUR SPOUSE

This one would hardly seem to need explaining, but it is amazing the number of clients that think it is a smart thing to do. It always ends up in an arrangement that is very disadvantageous to you, or in some off-the-wall arrangement that will not work, can't be accepted and administered by the court, or ends up disadvantaging both sides in some other way. At the very least, it ends up in voluminous amounts of attorney time spent explaining why these goofy things won't work, why a deal that seems so neat is very disadvantageous to you, and why the lawyer has to tell you all this. And no, the lawyer's initial estimate, or wild guess, as to how much the process would all cost, did not include all this extra time spent explaining the basics to somebody who, as the original bargain went, was going to leave the details and the means of accomplishing the ends entirely to his lawyer. And when the lawyer is lucky enough to be able to pull the client's botched deal out of the fire somehow, going through many costly iterations back and forth with the court or opposing counsel or both, it can easily double the costs of the whole thing.

SIGNING AN AGREEMENT, MEDIATED OR NOT, THAT YOUR ATTORNEY HAS NOT LOOKED AT

Believe it or not, some clients think they are oh so clever when they think of doing this. Think of the money it saves! Well, of course it doesn't work that way, for just the reasons explained above. And you have the additional factor of the lawyer having to explain to the judge, the other side and everybody involved that he or she is not responsible for a deal that you would ordinarily think the lawyer's fingerprints were all over. It will probably mean the lawyer's having to part company with the client, with all that that entails.