Aggressive Divorce Attorney or Assertive Divorce Attorney?
What Type of Orange County Divorce Lawyer Do You Seek to Retain?
If you think you want to retain an assertive divorce attorney with a reputation for being ‘aggressive,’ you are most likely looking for an an aggressive attorney. This issue is nuanced, but significant. The terms are very different.
Aggressive Divorce Attorney
You Need a Lawyer Who Will Protect Your Rights
You may misbelieve that your rights will be better protected by retaining an ‘aggressive divorce attorney,’ without understanding the nuances and meaning of the term ‘aggressive’ in the context of a divorce. This article explains the differences between an assertive strategic divorce attorney and an ‘aggressive divorce attorney.’
If you are seeking to retain an ‘aggressive divorce attorney,’ you should ask yourself what that means to you. To most, the word “aggressive” means “scorched earth” or “junk-yard-dog” style lawyering.
Will You Play a Significant Role in the Outcome of Your Case?
Your actions will significantly impact most aspects of your own divorce. You will decide whether to settle your case or elect to have it tried in court, whether to demand an exact fifty/fifty property division or compromise borderline issues, whether to retain certain experts, and countless other issues. Your decision as to which Orange County divorce lawyer to retain may be the most important decision made in your case. You cannot control who your spouse retains but you can control your own selection. The decision as to who to retain, should not be delegated to someone else or minimized and should not be made by default or accident, which is how it is often made. A person often asks a friend, relative or co-worker (as opposed to a lawyer, other professional, or a court employee) for a referral, is given a lawyer’s name, is told that the lawyer did a “good job” in his or her case, and based on a 30 second conversation, makes the decision as to who to retain. Sometimes the decision is made by which lawyer’s office is geographically close.
Are You Looking for a Divorce Lawyer that Will Help You Get Revenge?
If you are seeking to retain an aggressive lawyer for revenge OR out of hurt, anger or spite, you will likely regret your decision. This logic will most likely significantly increase your attorneys fees and will most likely not achieve the results you desire. Judges often punish lawyers and clients who fail to act with civility. Courts may sanction clients who take unreasonable settlement positions. The courts take the issue of civility very seriously.
What Are You Looking For in a Divorce Lawyer?
Many people retain a divorce lawyer without performing any significant investigation or due diligence. Often people spend more time researching and thinking about the purchase of a car or even a refrigerator than they do in making the decision as to which Orange County divorce lawyer to retain. Deciding whether to retain a divorce lawyer is the first question. A question that is equally or more important is which divorce lawyer to retain. Retaining a lawyer is not a “one size fits all” proposition. All lawyers are different in the same way that all clients are different. Retaining ‘a’ lawyer is not the goal. The goal should be to retain the lawyer who is right for you.
Understandably, different people look for different things in an attorney. In making this decision, you should know what issues are important to you and understand what to look for in a divorce lawyer. See Selecting a Divorce Lawyer.
Strategic Divorce Attorney
What is a Strategic Lawyer in the Context of Family Law?
Being a strategic lawyer is more than calling a witness, making evidentiary objections, and delivering a closing argument. They should be attempting to develop creative and strategic solutions to the client’s problems from day one. A strategic divorce attorney is a strong advocate for his or her clients. He or she is assertive in their representation while at the same time following legal ethics. This lawyer’s objective should be to obtain an expedited and successful result taking into consideration the cost of litigation and risk.
Thinking and acting strategically is critically important in divorce negotiations and litigation. Being appropriately assertive and strategic can be a gamechanger in negotiation or litigation. Being strategic means employing specific tactics, practices, and philosophies effectively. Oddly, there are well known Orange County divorce lawyers who actually believe and even say that strategy in a divorce is irrelevant.
A strategic lawyer helps a client understand the impact of divorce litigation on minor children and knows how to deal with the opposition if personality disorders exist.
What Is A Divorce?
It is important to understand what a divorce is and what it is not. A divorce is not a simple fill in the blanks, formula driven 50/50 division of assets. Yes, there are formulas and there are forms but it is far more than that. An Orange County divorce is a business transaction—the division of a financial partnership. If the community owns assets, they must be valued and divided according to the law. If one party has separate property, there may be a community interest in the property or the community may have a right to reimbursement from the separate property. A divorce may be simple or complex but the level of complexity is often not apparent to a non-lawyer. One of a divorce lawyer’s most important functions is to ‘spot the issues’ which means identifying the potential contested legal and factual issues. Better lawyers spot more issues and spot them earlier in the case, which is critical in developing a strategic plan, propounding the correct discovery, retaining the right experts, and making the appropriate settlement offers.
A Divorce Lawyer Acts Somewhat Like the CEO of a Divorce?
A strategic divorce attorney sees decision making in a divorce transaction as a series of business decisions. When a skilled CEO evaluates a problem or issue, what steps does he or she follow? What resources does the CEO allocate to the project? What tactics does he or she employ in executing the plan to solve the problem or address the issue? A divorce lawyer is the project manager or the CEO of a divorce.
CEOs and divorce lawyers must make decisions relative to priorities, strategies, and the allocation of resources. They each have to pick their battles with the ultimate goal of achieving the best result at the lowest cost. A CEO must decide which consultants to hire and at what cost. A divorce attorney must decide whether to hire and how much to spend on a forensic accountant, a vocational expert, a compensation expert, etc.
A CEO must decide whether to make an acquisition, hire a new advertising agency, or expand into a new geographic area. A divorce lawyer must decide whether to depose third party witnesses, whether to serve discovery, what discover to serve and when to serve it, whether to make the first offer and when to make it, whether to file a request with the court to seek a support order or other relief, whether and when to ask for a trial date, and on and on.
Problem Solving is a Critical Skill for a Divorce Lawyer to Possess
The “Harvard Business Review Idea Cast” broadcasted an interview with Carey Phelps, a professor of strategy at McGill University, and the author of Cracked It! – How to Solve Big Problems and Sell Solutions Like Top Strategy Consultants.
The program topic was problem solving in business, a core skill that he says is in great demand. He noted that problem solving involves critical thinking and strategy and is a skill that generally cannot be recruited for.
He suggested that there are many reasons why people think problem solving is easy, but in fact, it isn’t. One of the reasons that people think it is easy is because we all do it every day. The reality is that doing it and doing it well are quite different.
There are many reasons why people fail at effective problem solving. Sometimes problem solving is unsuccessful because the individual is not skilled in the field in question and fails to engage an expert. Other times, various intellectual biases take over, the specific problem is seen through a filter or the individual jumps to a quick decision without thinking it through. When problem solving, people often allow their brain to work too fast. There are other times when an individual has seen what he or she believes is the exact same problem in the past and believes the exact same solution as was utilized the last time will be successful this time. In this situation the individual fails to distinguish the two situations which causes the problem-solving failure.
A strategic lawyer has mastered critical thinking and problem solving relative to divorce related issues. This lawyer understands the nuances of the law, distinguishes the various scenarios that appear in divorces and can develop creative solutions.
The casual observer of a baseball game sees a different game than does a sophisticated fan. He simply sees the pitcher throwing a ball to the catcher while the batter attempts to hit the ball before it is caught and run 90 feet to first base before the ball is thrown to first base. The sophisticated baseball fan sees multiple strategic decisions and options in each and every play. This is somewhat analogous to a divorce. Almost every decision or action in a divorce has a strategic component that is unseen by most clients and most lawyers.
There Are Significant Differences Between Negotiations in a Divorce and Negotiations in Other Areas of Business
Although many parts of a divorce are, in fact, a division of a partnership, a divorce should not be analyzed exactly as one would analyze a typical business transaction.
When negotiating the purchase of a house or a company, if the buyer does not like the positions being taken by the other side of the deal, he or she can simply walk away from the transaction and commence negotiations on another house. One cannot simply walk away and divorce a different spouse. In most negotiations the potential price and terms of purchase do not have a ceiling or a floor. A buyer of raw land may be successful in negotiating an amazingly low purchase price from an unsophisticated seller.
Family law has extensive statutory and case law that provide specific guidance on the general parameters and structure of a settlement. Experienced divorce lawyers know the range of likely results of a trial and negotiate deals that fall within those parameters.
A judge is essentially a referee who makes the final decision if the parties cannot solve the conflict. Business deals do not have an individual who solves disputes and keeps the terms of the deal in the zone of fair and reasonable.
Lastly, in a divorce, one party may be ordered to pay the other party’s attorneys fees and costs. The longer the process takes the more it may cost the higher earning party, even if that party is the reasonable and rational one. This fact may play a role in settlement positions and the negotiations.
When Should a Divorce Lawyer and a Client Do a Cost-Benefit Analysis of Trial vs. Settlement?
A strategic Orange County divorce attorney knows whether to stand their ground, concede an issue, settle the case or when taking a case to court will serve their client’s best interest. This lawyer has the knowledge, experience and skill to evaluate the economic worth of an issue, the cost to litigate the matter and the likelihood of prevailing in trial. This analysis requires a critical thinking skill that, like logic, common sense and business savvy are not possessed by all attorneys. For example, why contest the date of separation if the litigation itself will cost the client more in fees than would be gained by achieving the desired outcome. Spending $15,000 to litigate a $10,000 issue is simply not a good business decision unless there are other considerations. Why hire an accountant, pay a lawyer to propound discovery and spend a day in court to argue over a $15,000 credit/reimbursement issue, when a win would result in a client receiving less than $15,000? Surprisingly, many Orange County divorce attorneys do not perform this seemingly obvious analysis at all or not until significant fees are incurred. Many attorneys see a goal line and think of nothing other than getting to the goal. The goal should not be win for winning’s sake. Many lawyers fail to focus on the value of the win in relationship to the cost of achieving it. In short, a strategic lawyer does a cost-benefit analysis of settlement vs. trial relative to each issue and does it early.
Some Orange County divorce attorneys settle 95% of their cases. Other Orange County divorce attorneys try 95% of their cases. Neither of these approaches will generate the best result for most clients. Retaining a divorce attorney that has a reputation for settling all of his or her cases, by itself, often prevents a favorable settlement because the opposing attorney knows that he or she can force an unfavorable settlement on the settling attorney by pushing for a trial date. A divorce attorney needs to be capable and willing to skillfully take a case to trial if the circumstances warrant it.
Likewise, retaining an Orange County divorce lawyer that has a reputation for trying every one of his or her cases, sends a signal to the other attorney not to waste his or her time attempting to reach a settlement. Trying every case means that the divorce attorney has walked away from many very favorable settlements and forced his or her client to run the risk of a poor result in trial (going to trial is often like Las Vegas). Had the divorce attorney been a skilled negotiator and taken the time to negotiate a favorable result, the client would not have been forced to spend his or her time in court, would not have incurred the fees necessary to prepare and try the case and would not have run the risk of a disastrous loss in trial.
A strategic divorce attorney has the experience, skill and judgment to know which path each case should follow. Being in either of the 95% categories means that the lawyer is simply not focused on a client’s best interests, is afraid to go to trial, is motivated to litigate the case to generate fees, is too busy to give the case the time it needs or fails to understand the concepts of being a strategic divorce lawyer.
What is the Real Cost of Divorce Litigation?
Often clients do not fully comprehend how expensive it is to actually go to trial. Before a trial date is requested, a lawyer should have completed most or all of the needed discovery and have fully explored all settlement options. Before the trial, the lawyer should have prepared all trial exhibits, worked with the client regarding his or her testimony, prepared pretrial motions, drafted the trial brief, prepared testimony outlines, reviewed the discovery, taken any needed depositions, hired the experts, reviewed the deposition transcripts and completed all other trial preparation. The costs to try a case almost always exceeds a divorce attorney’s good faith cost estimate due to continuances, unpredictable and unforeseeable events. Most individuals see a divorce as a dispute with their spouse that should be easily resolved and fail to understand that a divorce is litigation. Unlike most civil or business trials where there is only one issue being tried, a family law case often has multiple issues which increase the variables and unpredictability of the litigation. Events occurring after the case is filed and before the trial is concluded may greatly alter the landscape of the litigation in many areas (custody, controllable cashflow, business valuation, etc.) which may increase attorney fees and accountant fees due to necessary updates or additional discovery.
What Does it Mean to Prioritize Issues in a Divorce?
Divorces often involve issues with competing considerations. For example, it may make economic sense for a party to sell the family residence, but it may also be important to retain or attempt to retain the residence relative to a custody fight to ensure that the children remain in the same neighborhood and continue in the same school. A strategic divorce lawyer sees and evaluates these types of issues early in the case. Prioritizing and analyzing the problems and conflicts that exist in a divorce can be somewhat like assembling a crossword puzzle.
The Lawyer-Client Team
You and your divorce attorney should work together as a team. You should collaborate with your lawyer as the case progresses and should be on the same page from day one. A strategic divorce lawyer should share his or her strategies and tactics with you in order to obtain your input relative to your objectives and to better understand the motivations and objectives of your spouse.
Our firm’s lawyers collaborate as a team multiple times weekly in formalized meetings. Our clients hire one lawyer but benefit from over 295 years of combined legal experience. Having the input of a team of lawyers who limit their practices to Orange County family law matters enhances the quality of client representation in strategic decision making, issue analysis, negotiations, and litigation tactics.
Solution Oriented Lawyering
A strategic divorce attorney has the experience and creativity necessary to take the lead in putting the case together, developing creative solutions and resolving the case. Something is quite wrong if the client is running the case and developing the game plan with the lawyer serving in a reactive passive role. It is relatively common for a potential client to call us seeking to retain us to replace their existing lawyer, with the complaint being that nothing is happening in their case, they have to come up with all of the ideas, their lawyer does not seem to have a strategy and/or their lawyer does not seem to care about ever resolving the case.
Strategic divorce attorneys focus on performing work that is, in fact, necessary and will move the case forward. They have a clear ‘bang for the buck’ mentality in preparing the case, negotiating a deal and moving the case expeditiously to a successful result. You can play a significant role in expediting the resolution of your case. See How to Minimize and Manage Your Orange County Divorce Lawyer’s Fees and Speed the Process.
Being strategic is not intrinsically beneficial and by itself does not lead to a favorable result. Strategy is an overlay on the issues in a divorce. In order to benefit from strategic thinking, the divorce lawyer must have an accurate understanding of the applicable law, the rules of evidence, practicality, common sense and logic. A divorce lawyer needs to be able to use these skills to move the case forward to a conclusion. Being strategic without more, may take the client very efficiently—to the wrong place. For example, In a recent Orange County a well known divorce attorney was attempting to set aside a prenuptial agreement, when a set aside would mean the loss of a house and a substantial amount of cash that the party would not have but for the existence of a valid prenuptial agreement. Determining whether to attempt to set aside a prenuptial agreement requires an analysis of what the party would receive in the way of property and support in a divorce without a valid prenuptial agreement versus the overall result with a valid prenuptial agreement. A divorce attorney could succeed in convincing a court to set aside a prenuptial agreement—only to learn, after the fact, that the net effect of the ‘win’ was a disastrous overall economic loss caused by a failure on the part of the divorce attorney to understand the financial ramifications of a “win.” There are Orange County divorce lawyers who do not ask that type of question, do not do the analysis or do not do it well. Many lawyers handle cases in a manner that is very straight forward, simplistic and seriously lacking in legal analysis. They employ a cookie cutter approach to the practice of law. They go through the motions and treat every case in the same way.
Why is Being a Proactive Lawyer Significant?
A strategic divorce attorney is proactive and practices law with a sense of urgency. This attorney understands that the more time required to resolve the matter, the higher the fees. This divorce attorney also knows that failing to move the case forward as fast as is reasonably possible may result in a less favorable result. Consideration of timing is another strategic issue. Timing can be very significant relative to many issues like derivative social security benefits, length of a spousal support order, the representative time period for the determination of cash flow available for support, valuation of a business, vesting of stock options, etc. Often times a substantial delay in the resolution will benefit one party or the other but rarely both. A proactive lawyer generally understands that for most clients the fastest divorce in history still takes far too long.
Filing for divorce is a life changing decision and one of the most significant and important decisions you may make. The selection of a divorce attorney will impact the process and the result dramatically. You should be looking for a divorce lawyer who has expertise, experience and the ability to execute his or her plan. All divorce attorneys are not created equal and it should be clear that no two divorce attorneys are alike in the same way that no two clients are alike. There is not any one divorce attorney who is the perfect match for every client. It is critical to find the divorce attorney that will meet your needs and one who will be motivated to achieve your objectives as opposed to his or her own. Having ‘a’ divorce attorney is not the objective. The objective is having the ‘right’ divorce attorney. Researching a divorce attorney before retaining him or her is time incredibly well spent. Hiring a second or third divorce attorney in the middle of your case is time consuming, costly and may have a negative impact on the results of your case. Retaining the right attorney the first time prevents the costly event of having to retain a new divorce lawyer in the middle of the case.