Tag: reasonable

Should I pay my lawyer to talk to the attorney of the other party? He spent 3 hours last week responding to 12 emails from the other lawyer and I need to pay him for this time. At this rate I my lawyer will become a secretary and I will be bankrupt.

Should I pay my lawyer to talk to the attorney of the other party? He spent 3 hours last week responding to 12 emails from the other lawyer and I need to pay him for this time. At this rate I my lawyer will become a secretary and I will be bankrupt.

This is a great question.

Clearly, if the opposing lawyer is trying to run up the costs of the litigation by calling or corresponding with your attorney excessively, so that your attorney has to take the calls and/or write responses to all of the correspondence, that opposing lawyer is playing dirty.

Still, some cases are expansive and/or complicated and may require a great deal of back and forth between attorneys as a reasonable and necessary part of the litigation process.

If your case is the kind that doesn’t require anything close to the amount of calls and emails the opposing side is sending to your attorney, if it is clear that the volume of the opposing attorneys communications are excessive and engaged in in bad faith, you are not obligated to suffer it.

One way that your attorney and you may be able to remedy this problem would be by having your attorney send opposing counsel an email like this:

Dear opposing counsel,

It is clear to any reasonable person that the frequency and volume of your telephone calls and/or written correspondence with our office are unnecessary, unduly burdensome and oppressive, and engaged in in bad faith. My client cannot afford to have my staff or me take such calls and read and/or respond to every one of such written correspondence. Consequently, my client has now directed my staff and me to:

  • spend no more than five minutes per week taking calls from anyone at your office; and
  • read and/or respond to written communications from your office totaling no more than 250 words.

If in a given week you honestly believe you need more than five minutes to speak with me; and/or more than 250 words to communicate in writing to me, my client requires that you send me an email (no printed letters, no faxes) stating a clear and concise explanation why. No one at the office will read your email but I will forward it to my client to determine whether [he/she] authorizes me that week to speak with you for more than five minutes and/or review and/or respond to more than 250 written words from you.

If you have any questions regarding this policy, you are welcome to call me and discuss them with me for up to five minutes this week and/or email me with your questions this week, so long as your email is no more than 250 words in length.

Utah Family Law, LC | | 801-466-9277

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Should We Keep Our Divorce Struggles a Secret from the Kids?

Should We Keep Our Divorce Struggles a Secret from the Kids?

If a couple conceals their arguments from their children and divorce ‘amicably,’ does that send a message to the children that bad things can happen without any particular reason, even when everything seemed fine?

Yes, to an extent, but only to a certain extent. Keeping the trouble all hidden and bottled up inside until the powder keg blows is a recipe for disaster. divorce turns a child’s world upside down in the best of circumstances. The last thing a child needs is to be ambushed.

But do give these parents credit where credit is due. If they’re trying to shield their young, vulnerable children from serious marital discord, that’s admirable. Now it’s not good to be overprotective of children or mislead or deceive them, but sheltering children from more adversity than they may be prepared to handle? That makes all the sense in the world. how much or how little to disclose to the children is as much art as it is science. Each family and what the children can handle is different. parents are doing the best they can when they try to protect their children from their marital problems. The decent and reasonable thing to do is cut them some slack when they are trying to be decent and reasonable themselves.

Utah Family Law, LC | | 801-466-9277

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If losers pay winners’ attorney fees, why not hire the most expensive attorney?

If the losing side in a civil suit generally pays the winner’s attorney’s fees, why doesn’t everyone hire the most expensive attorneys?

First, because the U.S. generally does not follow the “loser pays” rule. Some states have such rules, and some cases have such a rule, but it’s not a universal rule in the U.S. (it should be, but I digress).

Second, because nobody knows in advance whether he/she is going to prevail in the law suit, so even if you were in a jurisdiction that followed a “loser pays” rule, that would not guarantee who the winner or loser of a particular law suit will be. So, hiring a very expensive lawyer “knowing” you’ll win the case and thus be awarded all of your attorneys’ fees is extremely irrational.

Third, the winner doesn’t necessarily get a judgment for all attorney’s fees incurred in prosecuting the case to completion, but only what the court deems to be “reasonably incurred” attorney’s fees. So, if you hired an attorney who charges twice as much as what the court deems reasonable, the judge would award you half of what you actually incurred, not the full amount.

Fourth, even if you were awarded most or all of the attorney’s fees you incurred, you’d still have to collect those fees from the losing party, which is often an expensive endeavor in its own right. Some people think that if you win a judgment against someone that the court hands you a coupon you can redeem for the money. Not so. And party against whom you obtained the judgment doesn’t have to just write you a check on the spot either. Worse, the loser could file for bankruptcy and just discharge the judgment debt.

Utah Family Law, LC | | 801-466-9277

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Must I engage in all-day divorce mediation or some other time period?

Must I engage in all-day mediation in my divorce action, or for some other specific time period?

No, there is no mandatory minimum period of time you must spend in mediation. You don’t have to stay in all-day mediation or for half a day or for any specific period of time.  All you are required to do is engage in mediation in good faith. Here’s the applicable statute:

Utah Code Section 30-3-39. Mediation program.

(2) If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.

If you want to attempt to reach a settlement agreement and spend half a day or all day trying, you certainly can, BUT you are under no obligation to do that. If after just a few minutes of good faith effort you conclude (in good faith) that you don’t believe a fair settlement will be reached, you can stop. You don’t have to keep trying to settle for the sake of trying to settle.

Indeed, one of the biggest mistakes you can make in your divorce case is placing way too much faith reaching a settlement.

Many people, including their attorneys, count on settlement (the prospect of going to trial is unthinkable to them), which then leads these people to value settlement settlement’s sake. In other words, litigants and their attorneys become so focused on reaching settlement — any settlement — that they lose sight of the fact that the purpose of negotiating isn’t just settlement, but getting an outcome as good as or better than what they reasonably (even conservatively) believe they could/should achieve at trial. If your settlement isn’t better than what you would get at trial, then your settlement (and all the time and effort and money you put into it) is a waste. Other people are so desperate to settle (out of fear of trial or for other reasons) that they engage in all-day mediation out of the mistaken believe they can somehow bring about a fair settlement by sheer force of will. Either way, it leads to fruitless and costly all-day mediation.

It is not lost on me that many people have to make lousy settlements in their divorce actions because they simply run out of money or willpower to keep fighting.

People who settle out of exhaustion cannot be faulted for making lousy settlement deals when a lousy settlement is the best they could hope for. What many divorcing people forget, however, is that their spouses are usually in the same position. If you can just hold on a little longer, outwork and outlast just that little bit more, that’s when the fair offer is finally made or accepted.

Finally, there are those who settle on unfair terms because they have no better option and they absolutely know it. These are the people who settle because their spouses’ superhuman levels of tenacity born of unimaginable evil and mental and emotional instability. These are people who know that their spouses will never abide by any agreement, never abide by any court order. Those who are married to such monsters reach settlement simply to bring the divorce litigation to an end (or more accurately, in the hope of bringing the divorce litigation to an end).

Utah Family Law, LC | | 801-466-9277

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