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Lawyers, courts and litigants encounter various levels of criticism and complaints about how courts handle divorce, custody cases and support matters. Criticisms often include the time it takes to litigate, the costs of litigation, the multitiered levels of decision-making that impede a speedy decision (such as forensic reports) and the fact that obtaining resolution of a dispute has a structure that is foreign or unexplained to litigants. The problem is compounded by the misinformation that is often provided by friends or associates of the litigants who are not themselves trained in the legal process and is fueled by the horror stories that people read and see in the media. Courts throughout the country are struggling with high caseloads because family law matters often constitute the highest percentage of cases on the civil calendars. Nonetheless, our clients are entitled to be treated with dignity. They need their day in court and courts must have sufficient time and resources to give litigants comprehensive and thorough consideration for the issues they bring before them. A multidisciplinary Matrimonial Commission was established in New York state in January 2004 by the state’s chief judge, Judith S. Kaye. The commission was asked to look at the processes utilized in handling divorce and custody cases. A report was recently issued by the commission (the report and the appendices with suggested forms can be found on the Internet at www.courts.state.ny.us under the designation Matrimonial Commission). First step: demystify the process for clients The commission’s report and many of the complaints that were considered involve basic problems with divorce and custody litigation. In this column we will touch upon some of the areas where we, as practitioners, can assist our clients in better handling litigation, including suggestions about how we can streamline and demystify some of the processes. In our next column, we’ll discuss some of the concerns raised in the commission report that are more appropriately addressed by changes in court rules or legislation. It is incumbent upon those of us who represent clients in divorce and custody processes to demystify the court process. This should start from the time we contemplate accepting representation and provide a prospective client with a written retainer. Many client complaints are premised on the misunderstanding that clients have with respect to retainers. Unfortunately, clients sometimes believe that the initial retainer paid to the lawyer will cover the entire fee. Attorneys should be very careful to make sure the retainer document specifically refers to what happens when the retainer becomes exhausted and additional fees are due and owing. If there is an additional trial-preparation retainer in your agreement, make sure it is in terms that are comprehended by the prospective client. Make sure an “evergreen retainer,” where the client is expected to pay the bills on an ongoing basis with the retainer being used to pay the final bill, is also explained if you use that in your fee agreement. The retainer should also explain that in the event of unpaid fees an application will be made to court for permission to withdraw if litigation is pending. It also may be important to obtain a guarantor for legal fees, especially if you believe the client will not be able to fully fund his or her own litigation. If you request a guarantor, that agreement is a guarantee for fees only and the guarantor cannot be privy to details about litigation unless the client specifically so authorizes you to make that information available. If there is such an authorization, it should be in writing. The entire litigation process should be explained to the client both orally and confirmed in writing. If you chose to provide the client with written information about the litigation process, perhaps an outline that sets forth the basic steps involved in the litigation would be helpful. In addition, any articles you have authored that describe the specific litigation process or matters that are relevant to the client’s issues should be provided. There are a number of good pamphlets and books that explain the litigation process. For instance, the American Academy of Matrimonial Lawyers has a book called Divorce Manual: A Client Handbook. The Family Law Section of the American Bar Association also has published a number of pamphlets that describe the litigation process. Clients should be provided with as much written information as possible or a list of various written sources available to them. It is particularly important that clients promptly receive copies of all information that relates to their cases. Copies of letters received from the court or opposing counsel should immediately be forwarded to clients. When forwarding such letters, either include a handwritten note on the copy to the client or a cover letter from you or a paralegal setting forth any additional information, including any request from the client to provide information. It is also important to send standard memos to a client following any telephonic or in-person communications with opposing counsel and/or the court. Clients who feel that they are left “in the dark” and that their case is lingering end up with continuous complaints. Answering a client’s telephone calls in a prompt and courteous manner is an absolute necessity. If you cannot return a call make sure that your office staff informs the client and sets up a time for a communication between you and the client. A high percentage of client grievances filed throughout the country involve unanswered client inquiries. When the client asks how long a divorce or the resolution of a contested custody dispute may take, do not underestimate time. Don’t give the client the answer you know they want in terms of the timeliness of a resolution. If you decide to provide a less than realistic time assessment, the client’s expectations will be such that anxiety will start early and continue during the litigation. Recognizing that it is sometimes difficult to predict the amount of time a process will take, if pressed it is better to overestimate rather than underestimate. If by chance you finish earlier you may just have a happy client. In terms of demystifying the process and keeping legal costs as reasonable as possible, if your office situation permits it, assign a paralegal or an associate to the case to provide status information to the client. Advise the client that contact with the paralegal or associate will be transmitted to you, and that you may or may not (depending on your office procedures) be billing for time spent with the paralegal. Explain the different hourly billing rates for you and your staff. Some jurisdictions, such as New York, require that those rates be set forth in the written retainer. Discuss with the client at the appropriate juncture the possibility of any alternative dispute resolution procedures if such would be appropriate or if your jurisdiction requires it. Voluntary alternative dispute resolution may reduce the time and the costs of litigation. Situations involving domestic violence are often not appropriate for informal processes and clients should be so advised. To reduce costs, determine if there are areas where issues can be refined and perhaps settled in advance of trial. For instance, if custody is at issue but only the issue of future relocation is disputed, utilize a parenting plan (such as that created by the American Academy of Matrimonial Lawyers) to set forth an agreement on schedules and the decision-making aspects of custody. The issue of relocation can be left to be addressed by the court. Many ways to streamline the litigation process There are many ways to try to streamline the litigation process. For instance, either court-imposed standard temporary restraining orders at the commencement of divorce litigation or agreed-upon temporary orders preserve marital property and assets for future distribution. This obviates the need to make preliminary motions to preserve the marital estate. Of course, if there has been a “rush to the banks or brokerage houses” or if your client tells you that there are safe-deposit boxes or accounts that have been “mishandled” by the other spouse, then you will need temporary restraining orders, which usually are the subject of ex parte applications. Also there are many aspects of the discovery process that can be addressed to reduce time and costs. For instance, if you and opposing counsel can agree upon neutral evaluators, do so, reserving each of your rights to ultimately obtain your own evaluation if you wish to challenge an agreed-upon neutral appraisal. That agreement should be reduced to a written stipulation. Resolve as many procedural issues as possible with opposing counsel by means of written communications without bringing a motion. Courts in many jurisdictions require an attempt to resolve the matter amicably between counsel before a motion for discovery can be brought. If you need to schedule a deposition of one of the parties consult with your opposing counsel regarding the possibility of scheduling both parties for the same day. If you and opposing counsel have busy court schedules, see if there can be agreement to hold depositions on a weekend day, taking as much time as necessary to finish both depositions even if it runs past customary hours. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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