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CHOOSING A (GOOD) LAWYER

I defy historians, heroes, lawyers, priests, to put a fact without some leaven of a lie.
Lord Byron.

(T)hey consider (lawyers) as a sort of people whose profession it is to disguise matters.
Sir Thomas More.

The first thing we do, let's kill all the lawyers.
William Shakespeare.

Why may not that be the skull of a lawyer? Where be his quiddities now, his quillets, his cases, his tenures, and his tricks?
William Shakespeare.

We lawyers are not, as a class, dearly beloved and never have been. But with all due respect to Will Shakespeare and his colleagues, it's a bum rap. On the whole, we are as morally upright as most other people. And there is absolutely no truth to the rumor that lawyers eat their young. On the other hand, lawyers have yet to corner the market on virtue. As in all other lines of work, there are good lawyers and there are bad lawyers. What follows may help you distinguish between them. I direct my comments mostly to divorce and real estate law because that is primarily what I do. But the points here are equally applicable to any other area of the law.

A Square Peg in a Round Hole

Most lawyers are competent at what they do. The trick is to find one who is well versed in that area of the law that's important to you. The attorney who did a whiz-bang job on your brother's speeding ticket may not have a clue about divorce law. Yellow pages ads often include a lawyer's areas of specialization. The yellow pages also list attorneys by areas of practice. Each county has a lawyer referral service in the county seat. They can lead you to attorneys who handle the type of case that interests you. Word of mouth is important, but only if the recommendation comes from someone who was involved in a matter similar to your own. Keep in mind that there are specialties and there are specialties. I can do a will for most of the people I know, but if Bill Gates came to me (I should live so long), I would refer him to someone with a background in wills and estates for the disgustingly wealthy. At that rarefied level, a lawyer needs a good knowledge of estate tax laws and trusts that is beyond my expertise. When you find a lawyer who may suit your needs, ask questions about your particular matter. Does he or she have experience in cases similar to your own?

Chemistry

You can have the most accomplished lawyer on the planet, but if you can't stand the sight of him, you'll regret the day you walked into his office. In most cases, and particularly if your business involves matters of a personal nature, insist on meeting with your attorney before you actually retain him. If he talks down to you, seems indifferent…if you don't like the color of his tie, you're probably in the wrong place.

Understanding the Lawyer's Job…and Your Own.

The most important thing a lawyer does is to give advice. We can tell you what the law is. We can project how your case will end up if it goes to a judge or a jury. If there's a settlement offer on the table, we can tell you if it's good, bad or somewhere in between. If the person buying your home wants you to fix the leaky faucet in the bathtub, we can give you a pretty good idea if that's a deal breaker. If you have questions, we can answer them. What we cannot do…or should not do…is make decisions for you. The certainty that comes with the settlement of a case has a price and the price is unique to each individual. Is it worth accepting low-end alimony to avoid the grief of a weeklong trial? Do you fix that leaky faucet on the off chance that the buyer will kill the deal if you refuse? I couldn't possibly substitute my judgment for the client's on such matters. We all have different thresholds of comfort. I can give you a good idea of the odds. Only you can decide whether or not you will place a wager.

Any attorney who guarantees results is (1) lying or (2) bribing the judge. Whenever you leave a decision to a judge, you're rolling the dice. This is one of the advantages of settling a case (See Settlement, infra.). In the meantime, ask your lawyer to describe the downside of your case. Insist that they play the devil's advocate. You can choose your course of action intelligently only if you know the risks involved. If your lawyer doesn't always tell you what you want to hear, he's doing you a service.

Having done this work for more than thirty years, I think I have a pretty good idea of what my clients want to know. But I'm not a mind reader. If you have a question, for God's sake, spit it out. The only stupid questions are the ones that are never asked. A lawyer's job is to answer your questions and, by so doing, to set your mind at ease. Indeed, many would say that that is a lawyer's most important job. I've been told many times that the worst part about legal affairs is not knowing what's ahead of you. If your lawyer can make the unknown known, your money's been well spent.

A client must be focused and they must be realistic in their expectations. One of the worst condemnations of the legal profession is that we lawyers tend to drag out the proceedings either for the sake of the almighty dollar or just to be nasty. I won't deny that there are lawyers who do just that. Fortunately, they are a rare breed. Far more commonplace are the clients who would use their lawyer to inflict pain on the other litigant. Obviously, this occurs more often in divorce cases. Once, I succeeded in having my client's husband removed from the marital home under New Jersey's domestic violence statute. Immediately after the trial, I was told that my services would not be required for the divorce. I was being fired because I didn't make the bastard bleed enough. If you want to use divorce litigation to wage a vendetta, (1) you will surely regret it and (2) please switch off this web site and find another attorney. Anger feeds on itself. If you see the infliction of pain as a desired goal, it won't be long before your spouse hops on board. When bitterness becomes the driving engine in a divorce, only the lawyers gain. I'll be delighted to take your money under most circumstances, but if you're looking for your lawyer to act as a mugger, you don't want me.

I think I'm a good attorney, but I can't pull rabbits out of a hat. I can only work within the confines of the law. The judge who will decide your case can only render decisions based upon those same laws. In New Jersey, a child of divorced parents has a right to expect mom and dad to pay for a four-year college education. That's something of an oversimplification of the law. There are many factors that go into each case, one of them being the child's obligation to defray his or her own expenses. Still, as a general statement of law, each parent will contribute to the child's college, to the extent that they are able. It has been said that this imposes a burden on the parents that would not exist were they not divorced. If you and your spouse are still married, who's going to tell you that you must send your kid to college? That's a perfectly good, common sense argument. Problem is, it is not the law. Unless you are ready to take your case up on appeal, possibly up to the New Jersey Supreme Court, you have to be realistic and accept the fact that judges and lawyers are bound by the law, as it exists. And that leads nicely to the next point.

Settlement

Your attorney must be ready to go to trial, if it comes to that. But good lawyers like good settlements. Existing laws may hamstring attorneys and judges. The clients are not nearly so limited. You can agree on a solution that no judge could order. Recently, I was representing a woman who was clearly entitled to spousal support. We had conferenced the case before a panel of lawyers who agreed that she was entitled to permanent alimony. But my client had serious misgivings about her soon to be ex-husband honoring his alimony obligations. There was substantial marital property and she preferred to take more than her share of it and, in exchange, to give up her claim to alimony. We discussed the pros and cons of this notion. In the end, that's what everyone agreed to do. It was a solution that no judge could have imposed. Because the law is what it is, a judge would have awarded alimony and given her far less of the marital property. As the law defines these things, it would have been a fair and reasonable conclusion, bit it would not have been the solution that my client wanted. Before you retain an attorney, ask about his or her views on settlement. How creative have they been in the past sculpting agreements that could not have been achieved by a judge? Most importantly, ask yourself what is really important in this case. A settlement involves a package. What parts of the package are most critical to you? Would you swap a greater share of your husband's pension if it meant you and the kids could remain in the family home until your youngest graduates from high school? Set your priorities. Pursue settlement. Be creative.

Accessibility

A good lawyer is accessible to clients. Some attorneys will give out their home telephone number, but that may be too much to expect in most cases. If a client dials my office number after hours, the call is forwarded to my cell phone. As a rule, a lawyer should return a phone call by the end of the next business day. As with all rules, there are exceptions, particularly if your attorney does not have access to your home telephone numbers, as sometimes happens in divorce litigation.

Fees and Costs

Make sure you understand your obligation to pay your lawyer's fees. In some cases, divorce being one of them, an attorney is required to give you a contract setting forth his fees and the projected costs of your case. Even where such contracts are not required, you may ask for one or, at the very least, a written statement of the fee arrangement. You should also understand your obligation to pay for costs, that is, expenses paid to someone other than your attorney. It may be the cost of filing divorce papers with the court or the price of an expert to appraise the value of your pension. If you are selling or buying a home, be aware of the fact that there are costs beyond the price of your lawyer, more so for buyers, but for sellers, as well. In some instances, the costs may be nearly as much as the attorney's fees. Make inquiries. Often, the wisdom of pursuing a particular course in litigation may well depend, at least in part, on the attendant costs. If you're buying a home, from the beginning you should know how much it will cost you to be sure that you're not getting in over your head.

Speak Up

Don't be intimidated by your attorney. You're paying good money for these services. If there is anything, anything at all, that troubles you in the course of your dealing with your attorney, speak up. What may, at first, appear to be an insignificant problem can easily mushroom into a major crisis that will impact on the attorney-client relationship and, ultimately, on the outcome of your case. Don't be concerned about insulting your lawyer. If there's trouble brewing, your attorney will want to know about it. If there is any class of people who hate surprises, it's attorneys.

Conclusion

I hope that the insights gained over thirty-plus years of practice may be of some help to you in selecting and dealing with your lawyer. If you have any questions either of a general nature or pertaining to your own case, I would be happy to discuss them with you. Please feel free to call or to e-mail your inquiries to me.

I. Jacob Weingarten
P.O. Box 251
10 Park Place
Butler, NJ 07405
Phone: (973) 838-4898
Fax: (973) 838-5245
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Providing knowledgeable real estate law and divorce attorney services to clients throughout New Jersey including the communities of Butler, Kinnelon, Bloomingdale, West Milford, Wayne, Pompton Lakes, Riverdale.