Your attorney cannot do what only you can do. Your attorney cannot answer questions posed to you until you provide your attorney with the information and facts needed to answer the question. Your attorney cannot produce your documents requested in the discovery process without you first producing those documents to your attorney.
If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.
Merely hiring an attorney does not give one an automatic advantage in a divorce and/or child custody case.
It can, but it’s not guaranteed. Why? Because some attorneys are incompetent. Being represented by a really bad attorney might even be worse than having no attorney representing you at all.
While there are some attorneys who will do anything to win at all costs for the client (which usually entails billing the client tremendous amounts of money to do so) and who may be able to win custody for a parent who otherwise not win custody that parent not hired the “win at all costs” lawyer, the law does not base child custody award decisions solely or even chiefly on whose lawyer is the more skilled or persuasive.
The purpose of child custody laws and their application is to ensure the child custody award first subserves the best interest of the child without infringing upon the parental rights of either parent any more than may be necessary to subserve the best interest of the child.
How likely a parent is to win sole custody of a child or children can often depend on how ruthless and unscrupulous a parent (and his/her attorney, if represented by ruthless and unscrupulous attorney) are, but fortunately most (most, not all) judges try not to be taken in by sneaky lawyer tricks and sensational stories that have little to no basis in any independently verifiable facts.
That stated, if the other parent hires a skilled attorney or a skilled AND unscrupulous attorney, your odds of succeeding in the case without you also being represented by an attorney who is at least as skilled aren’t good.
I am a divorce lawyer. You may believe, consequently, that my response to your question is going to be self-serving and that I am going to tell you that you should hire an experienced family law attorney. You are wise and prudent to be skeptical.
That stated, you can ask those of your circle of friends and family members whom you trust and who are as wise as or wiser than you whether hiring an experienced family law attorney for your divorce and custody matters instead of representing yourself. They will tell you, unequivocally and without question, that the answer is “yes.”
That stated, the benefits of hiring a divorce attorney are not as great as they were a generation ago. There are still many benefits to hiring a divorce attorney these days, but much of what an attorney—and only an attorney—could do for you in the past (due to the specialized knowledge your attorney, and only your attorney or other attorneys like him/her, is now possible to obtain and enjoy through sources other than an attorney. Almost any family law question can be answered by some diligent Internet research (be warned, however: there’s infinite supplies of misinformation, myths, and mindless drivel on the Internet too, so conduct your research with a careful and discriminating eye).
If you’re willing to put in the time and effort, you could become a fairly formidable pro se (meaning “self-represented”) family law litigant. Many jurisdictions are also starting to permit people other than lawyers, such as specially certified or licensed paralegals, to practice some limited scope legal services in family law cases. Candidly, when you opt to represent yourself or hire a non-lawyer, it should come as no surprise that you almost always get what you pay for. Otherwise stated, the amount of money you “save” by not hiring a skilled attorney is usually “paid” in the form of excessive amounts of time and effort you have to expend to gain the benefits equivalent to simply hiring a skilled attorney. There’s no free lunch, there are no shortcuts.
I will answer this question as it applies in the jurisdiction where I practice divorce and family law (Utah). Each jurisdiction has its own rules governing the fees attorneys charge.
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A licensed paralegal practitioner may not enter into a contingent fee agreement with a client.
(f) Before providing any services, a licensed paralegal practitioner must provide the client with a written agreement that:
(1) states the purpose for which the licensed paralegal practitioner has been retained;
(2) identifies the services to be performed;
(3) identifies the rate or fee for the services to be performed and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation;
(4) includes a statement printed in 12-point boldface type that the licensed paralegal practitioner is not an attorney and is limited to practice in only those areas in which the licensed paralegal practitioner is licensed;
(5) includes a provision stating that the client may report complaints relating to a licensed paralegal practitioner or the unauthorized practice of law to the Office of Professional Conduct, including a toll-free number and Internet website;
(6) describes the document to be prepared;
(7) describes the purpose of the document;
(8) describes the process to be followed in preparing the document;
(9) states whether the licensed paralegal practitioner will be filing the document on the client’s behalf; and
(10) states the approximate time necessary to complete the task.
(g) A licensed paralegal practitioner may not make an oral or written statement guaranteeing or promising an outcome, unless the licensed paralegal practitioner has some basis in fact for making the guarantee or promise.
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COMMENT
Reasonableness of Fee and Expenses
[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (a)(1) through (a)(8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.
[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.
Terms of Payment
[4] A lawyer may require advance payment of a fee but is obligated to return any unearned portion. See Rule1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.
[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.
Prohibited Contingent Fees
[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
Disputes over Fees
[7] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the Bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer’s fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.
[8] This rule differs from the ABA model rule.
[8a] This rule differs from the ABA Model Rule by including certain restrictions on licensed paralegal practitioners.
Can you? Meaning: is it possible? Of course it’s possible.
Likely? That depends.
I had written over 500 words in my first draft of the answer to this question when I realized I could state the answer clearly with fewer words.
Here is one way of analyzing the question. There is generally an embarrassingly obvious and high level of sexual discrimination against fathers in child custody cases. In my experience, this is what I’ve noticed, if the child custody award is an all-or-nothing proposition*:
All things being equal, the mother’s odds of success are higher than those of the father.
If the father is represented by an attorney but the mother is not, the mother’s odds of success are still higher than those of the father.
If the mother has a history of substance abuse but the father does not, the mother’s odds of success are still higher than those of the father IF the mother gets in to treatment and gets favorable progress reports from the treatment provider before trial.
If the mother has a history of child neglect, child abuse, and/or other violence, but the father does not, the mother’s odds of success are still higher than those of the father IF the mother gets in to treatment and gets favorable progress reports from the treatment provider before trial.
If the mother is homeless, but the father is not, the mother’s odds of success are still higher than those of the father IF the mother gets the court to believe she now has decent housing for her and for the child.
—————
*When a child has two fit and loving parents who live in close enough proximity to make equal physical custody not merely possible or feasible but easily and pragmatically implemented, then the “best parent” is both parents. How could it be otherwise? Children of two fit, loving parents deserve to spend as much time in the care and under the tutelage of both parents, and that means the child custody award must be an equal legal and physical custody award.
What advice would you give to someone who has just become one of the parties in a divorce proceeding?
#1. Know this: divorce law and the divorce process are almost surely not what you think they are. They are scarier, more complex, more confusing, more time-consuming, more expensive, more disappointing, and more discouraging than you can imagine. Ignore my words at your peril.
#2. Don’t sign anything your spouse asks you to sign without reviewing it with a good divorce lawyer. Don’t let what your spouse tells you about “how it’s gonna be” upset or worry you. Don’t believe him/her when he/she says, “My lawyer says you must ______” or “I have the best lawyer in town.” Most of what your spouse tells you will be lies meant to intimidate, coerce, and dupe you.
#3. Don’t take friends’ and family members’ advice as as substitute for the advice of a good attorney. Your friends and family members usually mean well, but have no idea what they’re talking about.
#4. Keep an eye on your valuable things and information. They tend to disappear once a divorce is filed. Secure:
your financial accounts against your spouse draining them;
your important documents (this is not an exhaustive list):
tax records
loan/debt records, loan and credit applications
appraisals/valuations
bank/financial institution records
insurance records
birth certificates
Social Security cards
passports (for you and the kids)
pay stubs
account statements
certificates of title
estate planning records
business records
medical and health care records (for every member of the family)
photographs
your prenuptial or postnuptial agreement, if you have one
etc.
Inventory everything (take videos and photographs of it all) that you own (both jointly and separately);
make sure your password-protected accounts (e-mail, cell phone, social media, credit cards, bank/financial institution accounts, bills to pay, financial accounts, credit cards, etc.) cannot be accessed by your spouse without your advance knowledge and consent;
route your personal mail to a P.O. Box to which only you have access;
#5. Don’t act out of fear or anger or revenge. If you do, you may do your case irreparable damage. Keep a cool head. Get a good divorce attorney’s advice.
#6. Talk to a good divorce lawyer (not just any lawyer, not just any divorce lawyer, but a good divorce lawyer) now. Right now. Not next week. Now. Right now. Pick up the phone and make an appointment with a good divorce lawyer right now. Timing can and usually is crucial in divorce.
The longer you put off speaking with a good divorce lawyer the more you lose (possibly forever) the benefits of knowing what you can and should be doing right now to protect and preserve your interests and those of your children (if you have minor children).
Notice that I did not write “hire a good divorce lawyer right now.” If you can hire a good divorce lawyer right now, do it. The sooner you get competent legal representation the better. No exceptions.
But if you do not have (or falsely believe you do not have) the money to afford a good divorce lawyer, scrape together enough money to meet and confer with a good divorce lawyer for an hour. It will be one of the best investments you ever make.
A good divorce lawyer is not a bulldog. A good divorce lawyer is not a shark. a good divorce lawyer is not someone who is effective at cheating ( as the old Bosnian proverb goes, “He who will lie for you will lie to you.”) A good divorce lawyer is someone with experience, skill, and decency. These kinds of divorce lawyers exist, but are very hard to find. But they are worth finding. If you want your divorce to be less expensive, less time-consuming, and less miserable, find this kind of good divorce lawyer.
#7. Unless you are young, penniless, childless, and convinced your spouse won’t or can’t hang you out to dry in divorce, don’t go the DIY route. Hire a good divorce lawyer, if at all possible.
If you:
earn money or receive money from other sources
are self-employed
own property of any kind
have money in the bank, investment accounts, or tied up in a pension and/or retirement accounts
have debts and obligations
are financially dependent upon your spouse
have a spouse who is financially dependent on you (in full or in part)
have minor children
are married to a malicious or crazy-malicious person
have been accused of abusing your spouse or children,
then odds are high that trying to divorce without a good lawyer’s representation throughout the divorce case is going to be absolutely miserable.
Do attorneys ever have to represent relatives or is that a conflict of interest?
I will give my personal opinion (as a lawyer, but not as a lawyer giving anyone any particular legal advice) as it applies in the jurisdiction where I practice divorce and family law (Utah).
There is no inherent conflict of interest in an attorney representing a relative simply by virtue of the client being a relative. There is no inherent conflict of interest in an attorney representing a relative against another relative either simply by virtue of the client being a relative.
If you learn that the opposing party’s attorney is a relative of that party, that is not a conflict of interest that would disqualify that attorney from representing that party.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I am a divorce and child custody lawyer. I have a question that all of my clients ask me that I don’t have the answer to:
“Why does ORS and/or the court need my child’s Social Security Number in a child support case? I can see why they would need the Social Security Numbers for both parents, but why for the kids?”
It’s a good question. Do you know the answer why (other than “it’s in the rules”), and if you don’t, can you point me in the direction of who knows the answer?
We are unable to answer this question on behalf of the courts, but can provide you some of the reasons why ORS needs a child’s Social Security Number.
When ORS establishes legal paternity for a child, we are required to report the paternity establishment to vital records, and this process requires the child’s Social Security Number to be sent with the child’s other information (name, date of birth, etc.). On the enforcement side, ORS is required to enforce medical insurance in conjunction with enforcing child support. As part of this process we send the parent’s employer the National Medical Support Notice ordering the child to be enrolled in insurance. The form includes the child’s Social Security Number, because it is required to enroll the child in insurance. This is a federal form all child support agencies are required to use.
Thank you for your time and email.
Customer Service
Office of Recovery Services
Utah Family Law, LC | divorceutah.com | 801-466-9277
This blog is in response to a comment made to a video entitled How much should you trust your lawyer?
“The biggest problem I’ve encountered with attorneys isn’t legal competence but the “to a hammer, everything looks like a nail” problem. Emotions not motions is often the answer.”
I hear that frequently. And it is a good point, but 1) it means different things to different people and 2) it’s not as good a point an many people (particularly clients of lawyers) think.
Yes, there are attorneys who stir up trouble and litigate either because they know no other way or because it’s lucrative for them. But there are also attorneys who aren’t afraid to get their hands dirty and do the necessary and difficult work of making the sausage once a dispute is submitted to the court’s for resolution. Many clients find they don’t have the stomach for seeing how the sausage is made. They come to realize they didn’t understand just how difficult, time-consuming, and costly litigation is. Rather than admit that they made a mistake, they will often claim that the lawyers and the legal system are the problem.*
Many clients want to believe that “if we’d just talk it out, the opposing side and I could work it out.” This is true in some, but not all, cases. If “we can work it out between us ourselves, without involving attorneys and the courts” were true, most people who hire lawyers wouldn’t hire lawyers because they would have no reason and no need to hire lawyers.
The fact is that many people can’t or won’t resolve their differences voluntarily between them. They take positions that they feel are irreconcilable, and when that happens, one or both of them resorts to litigation.
Subsequently, the clients who hire lawyers get frustrated (and many times justifiably so) with how needlessly and/or inexplicably expensive, slow/inefficient, and nerve wracking the legal process is. That’s often when the parties on both sides of the dispute suddenly “see the light” and “wonder why” they are engaged in litigation when all they need to do is speak from the heart.
Experiencing the miseries of litigation often motivates the parties to believe it’s better for them to settle out of court. Somehow they come to see that a dispute that the parties thought was irreconcilable becomes something they can and should quickly and simply compromise.
*I personally believe that many court procedures and systems are either outright designed or at least administered in such a way as to make the process miserable, so that the parties will settle their case out of court (thus relieving the burden on the legal system). This is wrong, but that doesn’t mean it doesn’t happen.
Utah Family Law, LC | divorceutah.com | 801-466-9277
The more power to be entrusted, the higher the stakes, the less I trust anyone under such conditions.
Many of us find or will find ourselves in a situation where we must retain an attorney’s services. Essentially, it must be done, we have no real choice. Not retaining an attorney is worse than going it alone.
Even then, hiring a lawyer does not relieve you of responsibility for your own case, of responsibility for protecting/advancing your interests. A good lawyer is a means of improving and augmenting your ability to do this, but only as long as you remain vigilant personally. If you don’t understand what your lawyer is doing or advising you to do, but “trust” that your lawyer is doing right by you, you’re just being lazy. If and when you fail to make informed decisions, you’re needlessly risking disappointment and failure, and that’s on you. You are responsible to find the best lawyer you can. I consider a good lawyer to be someone who is as honest and fair as he/she is skilled as a jurist and litigator. Don’t hire a mercenary, a shark. This calls to mind the proverb “He who will lie for you will lie to you.”
Remember: a lawyer you can and should trust is not a lawyer who is infallible. Even the most trustworthy, skilled attorney cannot control the opposing parties, witnesses, law enforcement and court personnel, or the judge(s). Sometimes an attorney’s best advice fails. Any choice as to how to handle a legal matter is not without trade-offs and risks. That’s not a matter of how trustworthy your lawyer is.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Is there anything illegal about a previous lawyer wanting to charge their ex client for a copy of their case file?
I can’t answer for all jurisdictions, but in Utah the answer is:
If you were previously given your case file or previously given a copy of your file—and lost those—so now you want another copy of your file (and assuming your lawyer still has a copy of your file), then it’s fair for your former lawyer to charge you a reasonable fee for the cost of making you another copy of your file. You’re not entitled to a free copy or copies.
If you were not previously given your case file or previously given a copy of your file, then Rule 1.16(d) of the Utah Supreme Court Rules of Professional Practice – Rules of Professional Conduct provides: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.” Thus, if you have not requested a copy of your file, you are entitled to your file (not a copy, the file itself).
How long must your attorney keep your file after representation terminates? I’ve been told no less than three and no more than five years. Rule 1.15(a) provides, “[O]ther property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” So if representation terminated more than 5 years ago, your old lawyer is not required to keep your file any longer, and so if you want a copy of your file then, you are likely out of luck.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What do you think would be the rate of divorce in marriages if psychologists were to be consulted in court by couples before proceeding to see the lawyer for divorce?
Your intentions are good, your proposal won’t work.
Short answer: forcing people to consult a psychologist as a prerequisite to obtaining a divorce would A) likely cause no appreciable reduction in the divorce rate and B) would surely not justify the costs associated with it.
You appear to base your idea on several false assumptions:
First, that professionals are infallible. They are not. That includes psychologists. Merely consulting a psychologist does not mean you will get competent care or advice from any and all psychologists. And the purpose of psychologists isn’t to talk people in or out of anything anyway, so forcing people to speak with a psychologist with the goal of reducing divorce likely would present some ethical conflicts that would cause many psychologists to balk.
Second, that nary a professional (including psychologists) is motivated by self-interest. Plenty are. Some psychologists know that if they advocate for more psychologist involvement in the court systems, then that means more work for psychologists through the court systems. And so they do and say what they need to do and say to keep the work flowing, regardless of whether they feel that what they do and say is what is needed or warranted.
Third, that most divorces are due to mental illness or other mental or emotional pathologies or disorders. While many divorces can be traced to mental and/or emotional problems in one or both spouses, not every divorce can be. Thus, requiring everyone who files for divorce to consult a psychologist would be a waste of time, money, and resources.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Is the percentage of married people getting a divorce still about 50%, or is it now higher?
It’s actually a bit less than 50% currently and for the past few years. This is likely not because fewer people are divorcing as it is because fewer people are marrying in the first place.
Addendum: I’ve seen claims that the COVID-19 pandemic has caused a spike in divorce filings. That makes sense, but I haven’t seen it personally. That may be due to the bulk of the spike consisting of divorcing couples handling their divorces without a lawyer. I don’t know, but that makes sense too.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Law from a legal assistant’s point of view, week 48: Personal Statement for Law School
By Quinton Lister, legal assistant
My time as a legal assistant to attorney Eric Johnson has served the exact purpose I was hoping it would. I wanted to gain experience in the legal field before starting law school. I have now been accepted to Arizona State University Sandra Day O’Connor College of Law and will be attending starting this fall. In honor of that, my blog post this week will be my personal statement I used for my law school applications:
The serenity prayer, attributed to Reinhold Niebuhr, says, “God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.” I have needed each part of this prayer at different times in my life. As I have applied the three elements of this prayer, I have found healing for myself, and I know that other people deserve to experience the same. I can help bring this healing to others by practicing law.
First, “grant me the serenity to accept the things I cannot change.” This was difficult for me to accept because I did not like to think I could not change certain things. I am an American, and I have been taught from my youth that my choice is paramount in everything I do. And I believe that I have the power to make whatever choice I want. However, I have had to learn that even though I always have my choice, I cannot eliminate the consequences of my choices. For instance, I regret not playing hockey when I was younger. I love hockey, and I am one of the few American boys born in the 90s whose favorite athlete was Joe Sakic and not Michael Jordan. I cannot go back and choose to play hockey now and accepting that helps me change my mindset. Instead of dwelling on what could have been, I can now focus on enjoying things like acting, singing, and dancing. Things I did as a youth, and that enhance my life now. That acceptance brings healing, and I think that by helping people see they cannot always change the consequences of the law, I can bring this essential healing as a lawyer.
Second, “courage to change the things I can.” To me, this means I have responsibility when I want to see a change in my life. For instance, when I served a two-year mission for my church in Hungary, I did not speak Hungarian well at first. I would say that I was like a child, but even Hungarian children can communicate with words instead of pointing and acting out what they mean to say. Despite the struggle, and because of my love for my faith and the people of Hungary, I did everything it took to improve my language skills throughout my mission. I worked at it every day and persevered until I could confidently hold a real conversation with any Hungarian I met (even the children). The work I put in to get better at the Hungarian language helped create closer relationships with others and built my confidence. These things are examples to me of the healing that comes when I accept responsibility for what I can do for myself. People need good lawyers to help them do what they can for themselves in a lawsuit, and I can offer people this necessary healing through practicing law.
The final principle of the serenity prayer, “and wisdom to know the difference”, has been crucial to me in my relationships with others. I have learned that I cannot control how other people react to me or what they think about me, but sometimes I forget that I cannot control these things and I need wisdom to keep myself from trying to manipulate other’s reactions and emotions. For instance, I used to work with my brother at a company he started in college. We did not have the healthiest dynamic as kids and I could tell this was playing out in our professional lives together. I had to quit, but I was scared to tell him because I thought he would “freak out.” I needed wisdom to tell him I was quitting while allowing him to have whatever reaction he wanted. It turned out, he felt the same way I did, and it helped bring healing to our relationship. A good lawyer helps their client find the same healing by helping them exercise wisdom to know how they should or should not act, and that’s why I want to pursue the law as a career since I know other people would benefit from that.
The serenity prayer has been a guiding influence in everything I do, and I have been blessed with healing by choosing to follow these principles in my life. I am immeasurably grateful for this healing, and I want to share this with others because it will help them. I know these principles paired with law degree can help me be a “healer” for other people in my own way.
Utah Family Law, LC | divorceutah.com | 801-466-9277
One thing my boss, attorney Eric Johnson, has told me that has had an impact on my view of law is the idea that law was traditionally supposed to be a healing profession. I myself will be starting law school soon and will be learning more comprehensively the ins and outs of the legal profession, and I think that the best lawyers that I have seen seek to bring their clients healing.
There is an important distinction I need to make here. I am afraid that there are some out there who would think that what I am saying is that good lawyers get their clients what they want or avoid conflict. That is not what healing is in my opinion. You would not want a doctor who only performs you the procedure that you want at the expense of the procedure that you need. To truly bring about justice and appropriate mercy, a good lawyer must uphold the law, and that means not just giving the client what the client wants. It also means not running from conflict every time it arises because conflict is part of life (and some conflicts can be resolved only by confronting and overcoming them, not avoiding or compromising them). The healing comes from doing what is right by your client but also what is fair to the opposing party. Healing comes at times through conflict, but keeping an eye on what the absolute truth of any given situation is, at least when it comes to the law.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?
It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately.
I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous.
A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them.
If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task).
Utah Family Law, LC | divorceutah.com | 801-466-9277
What should you do if you represented a client in a divorce who should not have gotten the kids, but got them due to your ability?
We have a word for those who do such things, who compromise their principles, who devote their talent and effort to an unworthy purpose for personal gain.
Prostitute.
Many lawyers (more than you likely comfortably believe) come up with all kinds of ways to rationalize and justify it (“everyone deserves a zealous advocate/defense,” “it’s not my place to judge,” “I was just doing what I was trained and paid to do,” etc.), but it’s all prostitution, pure and simple.
I went through a phase when I sincerely confused being clever with being a “skilled” attorney. There’s a great line from the movie adaptation of John Grisham’s “The Rainmaker”:
Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross… it just happens… And if you cross it enough times it disappears forever. And then you’re nothin’ but another lawyer joke. Just another shark in the dirty water.
Fortunately, I quickly realized the error of my ways and just as quickly corrected them as well. I’m not perfect, but I aspire as best I can to do what is right and let the consequence follow. What Hugh Nibley had to say about God’s law applies equally to earthly law:
The legal aspects of are not what counts — the business of lawyers is to get around the law, but you must have it written in your hearts (Jeremiah 31:33), to keep it “with all thine heart, and with all thy soul,” because you really love the Lord and his law, which begins and ends with the love of God and each other (Deuteronomy 6:5). It must be a natural thing with you, taken for granted, your way of life as you think and talk about it all the time, so that your children grow up breathing it as naturally as air (Deuteronomy 6:7-9).
I have believed/believed in a client and won cases for clients who I have later learned was in the wrong, who was lying, who shouldn’t have won. I was just as duped as the court in cases like those. I don’t feel guilty or ashamed (I can’t), but I do feel used and demoralized.
“I’m not upset that you lied to me, I’m upset that from now on I can’t believe you.” – Friedrich Nietzsche
“One lie is enough to question all truth.” – Unknown
Ethical rules prohibit a lawyer from prostituting himself/herself. To cite the two most relevant:
Rule 3.1: Meritorious Claims & Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.3: Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There are many websites with lots of free information that is good. The problem is being able to tell the good content from the bad. This is why, whether you intend to hire a lawyer to handle some or all parts of your divorce case, you need to read a lot to get a solid understanding of how divorce works—and not just the general concepts of divorce, but also how divorce works specifically in your jurisdiction (i.e., the state and county and city where you will be filing for divorce).
As for the best DIY divorce sites, I do not know of any completely free of charge sites, and I do not know which ones, if any, offer a free trial (if they did, most people would use the free trial and never pay). Again, you will want to review many of them to get a feel for what features they offer, how well these sites function, and how much they charge. You’ll want to find the site that caters to your skill level and budget without sacrificing the quality of their forms.
I worked closely with (but I am not employed, or paid by, or an owner of) the people who created ourdivorce.com, which I think is one of the best DIY divorce sites for divorce in the U.S.A. (not worldwide) because it was created from the ground up around the non-lawyer DIY divorce site user. It’s designed to make the process of divorce and the choices you and your spouse make along the way understandable and clear.
Remember: just because you are not a lawyer and just because you prepared your divorce forms yourself does not give you a “do over free” pass if the DIY forms you prepared were prepared incompletely, mistakenly, erroneously, or in any other a way that does not do what you wanted or intended. DIY divorce websites and forms are getting better and easier as technology advances, but they are still not a perfect substitute for a skilled lawyer’s help. So no matter which DIY site and forms you choose to use, BE SURE TO REVIEW THE FINAL PRODUCT WITH A SKILLED, EXPERIENCED LAWYER to ensure your forms are as you want them to be and as they need to be before you sign anything and before your file anything with the court.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Law from a legal assistant’s point of view, week 34: Electing judiciary officials
By Quinton Lister, legal assistant
I mentioned in a previous post that if I were to build my own legal system that I would make all judiciary officials publicly elected officials. However, I recognize there are pros and cons to electing judges.
PROS (as I see them):
Having elected judges would increase the accountability judiciary officials have to the public. In Utah, we can vote to retain a judge, but we do not vote them into office, as they are appointed by the governor.
Electing judges allows the people to have a greater voice in the justice system. What better way to ensure that the judges represent the people then allowing the people to elect the judges?
A judge who is elected has more incentive to act in accordance with the voice of the people, especially if they face re-election. They cannot “rest on their laurels” so to speak.
CONS (as I see them):
Elected judiciary officials are more susceptible to the influence of special interests. As is the case with any publicly elected official, big money can and will throw its funds behind the candidate they believe will represent their particular interests, even when those interest are contrary to the public interest.
Publicly elected judiciary officials have more incentive to “legislate from the bench” to appease their constituents
* Electing judges can result in inexperienced judges, if the same judge can’t get re-elected. Electing judges can result in a revolving door of new judges coming in and out of the judiciary each election cycle.
*This could be a potential pro in the eyes of some.
Utah Family Law, LC | divorceutah.com | 801-466-9277