Monday, June 3, 2013

Why an Aggressive, Mean Lawyer will Cost More Money

The other day, I was visiting with a highly educated man who started to tell me about his experience with divorce.  That's not an unusual situation.  Everyone has stories from their own experiences or their family or friends' experiences.

Anyway, as it turned out, he was happy with the second attorney he used.  It seems the second attorney was a "barracuda" and the man is now convinced that's the way to go.  The first attorney wasn't aggressive enough.  I know and respect both attorneys, but I would rarely ever agree that the barracuda approach is the best.  Let me explain.

1.  Reasons for wanting a mean lawyer.  The most common reasons I have heard are the following:
  • For revenge or out of anger:  In a divorce, emotions can be raw and revenge is quick to appeal to someone with hurt feelings.
  • To get a more favorable result:  Some people think the only way to get a great result is to "beat up" or overwhelm the other party.  Those people assume that the aggressive lawyer will have the client's goals in mind and will attain them.
  • To counteract the lawyer on the other side:  Many people believe that it takes fire power to fight fire. That may be true if the other attorney is a mean, aggressive attorney, but there's no need for that approach if the other attorney is just a regular, reasonable attorney.
2.  How does it work?  The mean, aggressive lawyer will be constantly attacking.  The attorney will file motions and set numerous hearings.  Conducting a war in discovery is a common tactic.  The aggressive lawyer demands a lot of information and is very stingy in giving out information.  The attorney tries to focus on what the other side has failed to produce or failed to do.  The idea seems to be to batter the opposing party and wear them out so that they will settle on terms favorable to the aggressive side.

3.  What are the results?
  • Many times, a party will get some revenge and work out some of the anger.
  • Almost always, there will be a smaller pot to divide.  The constant battling is very expensive, which means the attorneys get a good share of the community property and the parties divide a significantly smaller amount.
  • The process will take extra time.  Fighting takes time.  To do a good job, the aggressive attorney will generally set the case for trial, about a year away, and spend the interim time whaling away at the other side.  Plenty of attorneys' fees get earned in that year.
  • The fighting is pretty stressful on you.  At first, it might seem wonderful, but after a while, it just feels tiring and stressful.  Keep in mind that the other side will always fight back.
  • Financial pressures rise.  So much time and effort are devoted to the fight, that the attorneys' fees keep rising.  In almost every divorce, there are financial problems because suddenly there are two households trying to live on a budget that often barely covered one household.  Then, add two attorneys and various experts, and you will really begin to feel financial pressures.
 4.  Consequences
  • Cost -- at a time when cash is in short supply, it gets burned quickly in attorneys' fees and the estate to be divided between the parties is greatly reduced in size.
  • Destruction of relationships -- if there are children, there will be future occasions when both parents need to be near each other and be civil or even friendly.  That can be hard to do if really nasty things are said and done during a divorce.
  • Lost opportunities -- oftentimes, people will cooperate and sacrifice voluntarily in a divorce if they are treated respectfully.  Working with the other party, compromising and listening to the spouse can all lead to cooperative efforts to settle a case and try to salvage relationships and assets.
5.  Are there alternatives to going into battle mode and using a really mean, aggressive lawyer?  Of course! Almost every case ultimately settles.  There can be direct 1-on-1 negotiations between some parties. In most litigated cases, a court will order mediation at some point.  That's usually successful, but it often occurs late in a case, just before trial.  Finally, there's Collaborative Law, a relatively new process where the parties agree to not go to court.  Instead, they have a series of direct discussions with the help of a lawyer for each party and a neutral therapist and neutral financial advisor who work with both parties.  Collaborative is my preference, but if we can't do that, mediation is certainly a good option.

If you are facing a divorce and someone tells you that you need to hire the meanest lawyer in town, think about whether you want to spend that money and whether you want to further damage or destroy relationships.  You owe it to yourself and your family to at least talk with a trained Collaborative lawyer to find out if Collaborative might work in your case.

Just so you know, in my opinion, Collaborative Law could work in almost any case, as long as there are two trained Collaborative lawyers representing the parties. For more information, see my Texas Collaborative Law blog.