EP 54: How do you choose a divorce attorney? Interview with Larry Sarezky, author of Divorce, Simply Stated

“It’s an easy mistake to make to think that an older lawyer is more experienced than a younger lawyer. It isn’t necessarily so.” – Larry Sarezky

In Episode 54, we interview Larry Sarezky, family law attorney who has over 35 years of legal experience. He is the author of the great book Divorce, Simply Stated, and he is going to teach you how to choose a divorce attorney. This is one of the most important decisions you can make as you go through divorce, and Larry provides a complete guide in this episode. This is one show you don’t want to miss!

For more about Larry Sarezky:

Buy Divorce, Simply Stated on Amazon. A must-read for everyone!

Visit http://divorcesimplystated.com and http://www.huffingtonpost.com/author/larry-sarezky

Thank you for listening to the Divorce and Your Money Show. We hope the show helps you through one of the most difficult periods of your life. Shawn Leamon is also the author of Divorce and Your Money: The No-Nonsense Guide. One-on-one financial coaching services are available at www.divorceandyourmoney.com.

If you enjoyed the show, please take a moment to leave a review on iTunes, as it will help other people discover this free advice. Also, a full transcription of this episode is below.

Transcription

This transcript has been edited for clarity.

Shawn: Today we’re welcoming a very special guest. I have with me Larry Sarezky. He is an experienced family law attorney. In fact, he was formally the chair of the family law section of the Connecticut Bar. He’s a Huffington Post contributor and author. I don’t say this lightly, he has one of the best divorce books out there, period. This is a book that everyone should get. Its called Divorce Simply Stated and it’s out now on Amazon, or wherever books are sold. Larry, welcome to the show.

Larry: Thank you Shawn. Thanks for inviting me.

Shawn: Larry, why don’t you tell us a little bit about your background.

Larry: Well, I’ve been practicing law for longer than I’d like to even think about. I’ve been practicing matrimonial law/ family law for about thirty-five years. Around fifteen years ago I turned my practice into a mediation practice. Up until then I had done mostly litigation and some mediation but became exclusively a mediator. This point in my career, what I wanted to do was share some of the insights that I had accumulated over all these years. That’s what I thought might help folks going through divorce and considering divorce, just like I think it helps my clients.

Shawn: You mentioned mediation a little bit. I want to give a little bit of an overview. You talk about this in your book Divorce Simply Stated. You say that there’s two critical decisions that you have to make when it comes to the divorce process. One has to do with the method of getting divorced, and the second, which we’ll talk about in a lot of depth, is choosing the right attorney. Can you speak, at a high level about what kind methods there are? You know, the traditional litigation versus the Alternative Dispute Resolution options that are out there?

Larry: An important point for folks who are considering divorce is that you actually do have a choice in many cases of what kind of divorce you want to have. Traditional or also called court-based divorce is what you’re used to seeing. People either with lawyers, or without, let the court system guide the process. The alternative is ADR or Alternative Dispute Resolution. And what ADR is, is a system of resolving issues and disputes cooperatively, that if done right, takes less time and cost less money, and poses less emotional and financial wear and tear on the spouses just as importantly, or even more so, on their kids.

There are two types of ADR’s that are most prevalent in divorce. One is mediation and the other is collaborative law, collaborative divorce. I can speak briefly about each of those if you want me to.

Shawn: That would be great.

Larry: Mediation involves a single, unbiased, independent individual usually, and I think should be a divorce lawyer who helps the spouses in meetings amongst the three of them. i.e. both spouses and the mediator. It helps them resolve all the issues that need to be resolved. So the mediator is the guide, and in facilitative mediation – that’s what most people do – the mediator is the facilitator. The mediator tells the spouses what the issues they need to resolve are. The mediator collects all the same kinds of information that are collected in a traditional or court based divorce, but does it quicker, more efficiently, and of course cheaper. Then, good mediators have a feel for personal dynamics. They have insights as to why a particular issue may be difficult to solve. With that knowledge and their experience in law, they help folks quickly resolve all the issues.

Collaborative divorce involves each of the two spouses having their own lawyer. It is also conducted in a series of meetings. There’s no mediator, so there are four people in the room; husband, wife, husbands lawyer and wife’s lawyer –they are both represented. The goal is to reach an agreement. If they don’t reach an agreement however, the lawyers have to withdraw from the case, then new lawyers have to be chosen, and the folks can go the traditional divorce route.

I should just add very quickly that most divorces no matter what you choose, even traditional or court based divorce, are settled – the great majority of them. The difference is, in that ADR with a good skilled mediator, and spouses who are well intentioned, it can happen faster, and that’s a good thing for everybody involved. It saves money and emotional or financial wear and tear.

Shawn: So when you’re thinking about picking an attorney, if you’re thinking about going an ADR route, does that change what kind of attorneys might even be qualified to help you?

Larry: It does to a certain extent. Some skills you want all lawyers to have. You want them to be professional, you want them to charge reasonably – that’s a relative term unfortunately because all divorces are expensive, you want them to have experience. If you choose a traditional court based divorce, you also want a lawyer that’s experienced in litigation. I like to say “a lawyer who knows how to ask a question and how not to ask a question,” and what happens too often in the court proceedings and depositions is that lawyers ask too many questions, but that’s a topic for another day.

You also want in a court-based divorce, a lawyer who is a skilled negotiator. If you go the ADR route your mediator is not negotiation per se, the mediator is helping you negotiate, both for husband and wife. A litigation lawyer, one who is involved in court based divorce, has to know his way or her way around the courtroom, and also know how to settle a case. That’s critical because, as I said, family disputes ought not be resolved in court. They should be settled if at all possible.

Shawn: That’s great. In your book you provide a list of qualifications for choosing an attorney. I’m just going to read through the list and then I want to hone in on a few of these issues, qualifications specifically. So full list is, knowledge and experience regarding family law, power of persuasion, family law credentials and reputation, law firm affiliation – solo practitioner or members of a firm, compatibility, communication skills and empathy, toughness and practicality, professionalism regarding the opposing council, clients and clients’ children, reasonable fees, as you mentioned before. You said there was an X factor of wisdom as well, and I’ll include those qualifications in the show notes for the listeners just so they have a brief overview, and of course that’s all in your book.

Let’s dive into a few of them. So let’s start with knowledge and experience regarding family law, and also embedded in that question is, how does the age of your attorney impact whether or not they’re qualified to help you?

Larry: That’s a really good question because age is a factor that can cut both ways. When I choose a doctor it’s hard. It’s hard to choose any professional. I’ve got to do the best I can to choose one, and it’s the same with folks choosing lawyers. That’s part of what this book is intended to do, it’s to help them. The age of the lawyer is important, but more generally, part of this depends on your financial resources. Most divorce cases do not demand that you have the best lawyer in your town or in your county. What you want is an experienced lawyer, as I said, who knows how to settle cases and knows what’s important and what isn’t. Part of the knowledge and experience that is critical is to know the judges. The great majority of state divorce cases are resolved by judges, not the jury. There are some cases, in states like Georgia where juries have limited roles. They’re not even often used because it’s expensive. You need a lawyer who knows the judges. What I mean by “knows the judges”, is having experience with the judges. Judges like everybody else have a world view that can impact the case, so that’s critical. If you’re not in the income bracket where you’re not able to afford the most expensive lawyer, I’ll give you some minimum requirements that I think are particularly important.

First of all, you want a lawyer whose practice is in the dedicated, at least seventy-five percent family, for the last five years. That’s experience in your jurisdiction, and your state. You don’t want a lawyer who has come from out of state and has been practicing in your state for six months. They’re not sufficiently converse with the procedures and the judges and clerks, everything else, and other lawyers to be able to be effective for you. So, that’s one thing.

Second thing, you want a lawyer in a traditional court based case who has experience with cross examination, who knows the rules of evidence, and who has experience with contested matters. I want to point out that you may have to go to court even if you eventually settle your case. There are some proceedings that can occur even if you eventually settle. For example, you may need temporary support, temporary alimony, temporary maintenance, they’re all pretty much the same thing. You may also need temporary support for your children. You try to resolve that, but if you can’t it’s not something that can wait a long time. You may need to have a hearing to get a temporary order. That’s an order that’s in effect until your case is over. That can include going to court, having a hearing, and witnesses being cross examined. Those skills are important.

It’s an easy mistake to make to think that an older lawyer is more experienced than a younger lawyer. It isn’t necessarily so, and that’s for several reasons. First of all, there are lawyers who have become lawyers as a second profession, and I know a number of lawyers in their fifties who have been practicing for just a few years, so they don’t have the experience that the grey hair around the temples might suggest. Second of all, with respect to young lawyers, it depends on where they practice. If they practice in a firm that has a matrimonial law department, i.e. other experienced lawyers there, or what we call a small boutique law firm that dedicates itself only to family law, they’re likely to be mentored by very good experienced matrimonial lawyers. If they’re in the family law department or in a boutique law firm, family law is all they do. In five years they’ve attained more experience than a general practitioner may have accumulated in twenty years because the general practitioner does real estate, bankruptcy, and all sorts of things besides family law. The other thing about young lawyers is they do have exuberance, and they do have high energy, and in fact, I came up with something that I call –and stop me if I’m going too far off field…

Shawn: No, this is great.

Larry: I came up with what I call the quality lawyer bargain table, because it occurred to me over the years that there is a way to find top notch lawyers who aren’t charging top dollar. Here’s who they are. You may not have access, depending on where you live, to these kinds of lawyers. If you live in a kind of suburban or an urban setting, you will. So the quality lawyer bargain table consists of lawyers who have practiced exclusively in the field of family law for at least the last five years. They had to have been trained at either one of the small boutique family law firms I mentioned or a matrimonial department of a larger law firm, and they have not yet become partners. They’re still associates in the firm, and the significance of that is they’re not charging partners’ hourly rate. When you combine those plusses with what I mentioned before about youthful energy, and often a more caring relationship with the clients than you get with some of the grizzled veterans, you’re going to get as close as you can find to a bargain lawyer. That is a really good lawyer who is not charging top dollar.

Shawn: That is awesome advice. One thing you mentioned a few times, or several times that’s kind of run through this thread is, the reasonableness of the cost and the fees. There’s a perception that the most expensive lawyer in town is the best one, can you tell us if that’s a true perception? How does that really work, and how should people think about that?

Larry: Well it’s not true. Most divorce lawyers charge by the hour. They’ll tell you what their hourly rate is. What you need to know besides hourly rate, and I just wrote a piece for the Huffington post on this, is what’s called the “increments”, in which they bill. Lawyers don’t write down every minute they spend on a phone call with you or meeting with you. They write down either one tenth or two tenths of an hour. If they bill in increments of one tenth of an hour, that means that one tenth of an hour, one tenth of sixty minutes being six minutes –if my arithmetic is correct. I went to law school so I wouldn’t have to do arithmetic, I think I could do that much. Two tenths of sixty minutes is twelve minutes. So a lawyer who charges in point one, that is one tenth of sixty minutes, is going to charge you a minimum six minutes for anything. A lawyer who charges in point two increments is going to charge you for twelve minutes no matter what it is. It could be a three minute phone call.

So, the results of that is, if you go to a lawyer who charges three hundred and fifty dollars an hour, who charges in increments of point one, that is a tenth of an hour, and you have a three minute phone call with that lawyer, that lawyer will cost you less than a lawyer who charges only three hundred dollars an hour, but charges in point two increments. So that’s a very important key when you’re looking for lawyers.

The other thing I like to say about the cost of lawyers is it’s based on a lot of things, including location. Where I practice in Fairfield Country Connecticut, there are a couple of towns known where the good divorce lawyers are, and they tend to be the more affluent towns. Those lawyers are paying a lot of overhead. Their offices are more expensive and everything. You don’t want to be paying more just because your lawyer has fancy things. There are things a lot more important, and hopefully we’ll get to that. So yes, to a certain extent the better lawyers charge more, that’s a matter of common sense. You also have to look at why they’re charging more.

One other thing I’ll say about that is, if you’re looking at two lawyers and you’ve looked at their hourly rate and the increments at which they bill, and they seem to be pretty close, take a look at how far their office is from the courthouse because lawyers charge for travel time. All things being equal, you don’t want the lawyer whose office is half hour away from the courthouse, you want the lawyer whose office is five minutes from the courthouse. If you have a court proceeding you’re going to be charged round trip for an hour of time for that first lawyer and ten minutes for the second lawyer for the travel time.

Shawn: That makes a lot of sense. You do have to do a little bit of basic arithmetic but you did it right. I think those are all pretty practical ways to think about the cost of your lawyer. Can you also speak a little bit as to certain family law credentials that someone should look for?

Larry: Again, I always liken this to a doctors’ office. You’re sitting in the doctor’s office before he or she comes in and you look up on the wall and there are diplomas and you see an Ivy league school and you go “Whoa! That’s impressive!”, and I have friends who have on their walls very impressive diplomas. I know this because I’m impressed by them. The further you get out from your law school days, i.e. a lawyer has been practicing ten, fifteen, twenty years, those credentials mean very little. What’s much more important is the kinds of experience they have as a family law practitioner.  That’s what I was talking about before.

There are some ways to evaluate a lawyer’s credentials. First, you’ve got to do a little research. Nearly all lawyers have websites and most of what’s on there is self serving. You’re not going to go on there and find out that they’re not so strong a litigator but pretty good at this. They’re all going to say “I’m great!” Some things you might be able to find is what their specialties are. If a lawyer has five or six types of law mentioned such as real estate, civil litigation, criminal, and then at the end of the list you find family, that’s not a lawyer most likely who is concentrating or specializing in family law. That’s something to take into consideration. Of course if you don’t see family law at all in their qualifications, then it’s not somebody you want. So that’s one thing.

There’s also an outlet called Martindale-Hubbell. You can go online Martindale-Hubbell and look up the lawyer by name, and you can find out when they started practicing law. I think AVVO.com and some of these other online directories may also have that information as well. Generally speaking, Martindale-Hubbell is a much more authoritative source but just to get that information. So you can find out when they first became members of the bar. Basics like that. And I should say one other thing. Some states have certification for family law specialists. In those states that’s an important credential. In California or Ohio, Florida, Indiana, New Jersey, and a few others have that. That’s something that you want. I think the very best credential a family lawyer can have although (and I hasten to add this). There are plenty of top notch lawyers who are not members. Membership in the American Academy of Matrimonial Lawyers or AAML. Generally, the lawyers in the academy are top flight. That’s not always the case but ninety, ninety-five percent of the case, that’s so. They’re not cheap. Again, you have to balance what your ability is to pay these lawyers with their credentials, so that’s the research.

The other thing you can do is ask around. There are two sources of information. I learned early on as a lawyer that one of the best research tools is the telephone. This is true of clients seeking lawyers as well. The first group to seek information, from whom to seek information, are professional. What you’re looking for is what this lawyer’s reputation is with the family bar and bench –which is not by the way, a restaurant, one of my clients thought it was. A family bar being the lawyers in the area and the bench being the judges. If you know a lawyer who lives in your community, but who doesn’t do family law, he or she is likely to know who the better lawyers are, so that’s always a good source. You’ve got to be a little bit careful. If you ask a lawyer you don’t know that well, you want to make sure that this isn’t just someone who routinely refers cases to this particular family lawyer and gets back clients in his or her specialty in return. You want someone who is making a legitimate recommendation, and that can be a dicey question to ask, but there’s a lot on the line here. There’s a lot of professionals as well such as school guidance counselors who sometimes know good lawyers. Mental health professionals who are sometimes called as witnesses in custody cases, sometimes also know who the better lawyers are.

So when you start hearing the same name two or three times, that should mean something. I didn’t mention clients or former clients as a source of information. They are important sources of information, but I separate them out for two reasons. One is, some clients have either an unreasonable low regard for their lawyer. These are generally clients who have gotten a result that they’re not happy with. Then there are clients, who, believe it or not, think the world of their lawyers and see them as knights on white horses and that kind of thing. That’s understandable. Divorce is so emotionally laden that people sometimes think emotionally rather than logically about their own lawyers. You kind of have to take what they say and listen to what they say, as it’s important. Just keep that in mind that their idea may be skewed. What clients can tell you that professionals often can’t is how responsive the lawyer was to them. Did he or she return phone calls or emails in a timely manner? That’s not next week, that’s today or tomorrow. About their billing practices, did they bill for things like clerical stuff that their legal assistants did, which is the name that lawyers are now giving secretaries. Are they billing for some of these times to photocopy documents and things you could have done yourself? That kind of thing. Clients get a pretty good idea after going through a divorce, whether they felt fairly dealt with in terms of billing.

The last thing that I think is important to ask someone who has gone through a divorce is how is your relationship with your co-parent now? Is it better or worse than it was at the beginning of the divorce? If it’s worse, do you lay any of the blame for that at your lawyers’ doorstep? Was your lawyer overly aggressive? Did your lawyer fan the flames of conflict rather than trying to put them out? That’s pretty critical. The kids of my clients have always been important to me.

In my book you’ll see that throughout. I think lawyers have a responsibility not only to their clients, but to their client’s children. That’s an important question you can ask somebody who’s going through a divorce. You’re going to have to co-parent, those of you with children. You’re going to have to continue to co-parent your kids with your ex spouse for a number of years to come. You don’t want a lawyer who’s going to make that more difficult. You want someone who’s going to help make that easier.

Shawn: That’s extraordinarily helpful advice. I want to ask one more question related to choosing an attorney. There’s a perception propagated by the media. I know there’s some new shows on their way out on this very question. You want the super tough, hard charging divorce attorney. Is that right?

Larry: Not necessarily. Often it’s wrong. I used to be asked this question by new clients. I’d have an initial consultation with a client and I’d get the question, “Are you going to be tough?”, “Are you going to fight for me?”, which I think is a question they saw in the phonebook. You know, “We’ll fight for your rights!”, kind of thing. My answer would be obvious. As tough as the circumstances requires. I think there’s an important difference between a lawyer being assertive, i.e. telling the other side what your position is, and explaining why, and letting them know that this is an important issue. There’s a difference between that and being needlessly aggressive. There are lawyers who are needlessly aggressive for any number of reasons. Sometimes they’re just trying to impress their clients –tough guy or tough gal they are. Sometimes they kind of use it as a default attitude. I think we may even know some politicians who do that kind of thing. I know because I’ve watched judges react to lawyers in my community who are always aggressive no matter what. I know the judges don’t respect these lawyers and I know that they make cases more difficult to settle. I said before, often it’s not true. You don’t want the battler; you don’t want the barracuda or the toughest with a briefcase. You want someone who can be appropriately assertive and tough, and understand what’s important to you, what your priorities are, and get the job done. Often that means not fighting over every little thing. When you do that you waste money and time, for one thing. Beyond that, it hurts your prospects for settlement. The other side will just say, “Well we might as well just go to court to fight over everything.”

Shawn: I think this is all excellent and important criteria that’s giving the listeners some ways to help choose an attorney. Once they’ve kind of listened to and followed your advice and done the research, I want to start moving towards the initial consultation. A few questions related to that is, ultimately how many attorneys (if I’m thinking about choosing one) do I need to meet with and have an initial consultation? Also, can you tell us a little bit more about the process? Does the attorney charge for that first consultation? How do we prepare?

Larry: Let’s start with how many lawyers you want to interview. Once again, that’s a function of expense. If you possibly can, interview more than one lawyer. I often say interview three lawyers. Here’s something you can do. When you call up to make the appointment, ask the question as to whether the lawyer charges his or her regular rate for an initial consultation. Some lawyers don’t. When I meet with new mediation clients, and I generally don’t –unless I know enough about the case already and we’ve had extensive contact by phone prior, I consider the first half hour of that meeting, a meet and greet. They’re getting an idea of me and I’m getting an idea of them, and I don’t charge for that. Most lawyers do charge, because they can, their regular rates. Not all do. If you ask the question, you might get an answer that you wouldn’t get. In other words, if you ask the question they might say, “We charge a little bit less” or “We don’t charge for the first half hour or fifteen minutes.” If you don’t ask the question you’ll get charged the full boat. That’s a little tip that may save you some money. As far as what you should be looking for. There are a lot of things.

I have the appendix to the book. There is a list of questions to ask a lawyer and I hasten to add that you can’t ask a lawyer all these questions. There must be twenty-five questions or so, and you’ve got other things to do besides the questions. What you should do is go down the list and find three or four questions that are most important to you. You might want to ask, “Do you prepare you clients before a court hearing or a deposition? How do you do it?” If you’re in a high conflict case this could be an important question. Clients go into court poorly prepared at an alarming rate. I see it all the time. If you ask judges, as I have (I’ve gotten this answer consistently), what bothers them the most when they hear a case, they say it’s unprepared lawyers. Part of that is having unprepared clients. When a lawyer puts the client on the stand and asks them a question and the client clearly has never heard that question before, that client has not been properly prepared. So that’s one thing in a highly contested divorce. You also want to ask more general questions about experience like how long the lawyer has been practicing family. A lot of lawyers have been practicing family law for twenty to twenty-five years but they do three cases a year. That’s not who you want. You want to know what percentage of their practice is devoted to divorce. Not only right at the moment but for the last five or ten years. I say that because I’m thinking of one in which I was asked to advise the client who had a lawyer who had recently moved to her community and was in a boutique. That is a law firm that does just family law. Of course if you asked him how much family law he does he’d say one hundred percent. But he had come from a year earlier, a law firm in which he didn’t do any family law. So you have to ask those questions. You may want to know what percentage of cases they settle. That’s really important. Lawyers who have trouble settling cases may not be what you want, if you are someone who prefers to try to cooperatively resolve issues. Before when I was talking about mediation and other ADR techniques I said that most cases, even traditional cases where each side has a lawyer and they negotiate, most cases are settled. So you want someone who’s good at that. Not somebody who tries fifty percent of the cases they take. That to me means you have a lawyer who either doesn’t know how to negotiate, or is not good at it.

You want to know, if you go to see a lawyer who’s in a law firm, that’s the lawyer you want handling the important parts of your case. That means hearing that there’s something on the line as opposed to status conference where a lawyer goes down to court and the judge says, “When can we schedule a trial?” or “How far long are you?” or “What’s going on in your case? An associate lawyer can do that. There are plusses and minuses going to a law firm as opposed to a solo practitioner.

The plus of going to a solo practitioner is what you see is what you get. A solo practitioner is the only lawyer in the firm, so if that’s the lawyer who you’ve researched and that’s the lawyer who in the initial consultation, feel like you got some simpatico with and you can get along with them then that’s important. In the law firm the advantage of having associates around is that they can do some of the less important stuff, and they’re charging you at lower rates. So that’s some balancing that you have to do. You want to have the feeling in that initial consultation that this is a lawyer who is listening to you. That’s why it’s important to ask questions. When you ask a question listen not only to the answer. Listen to how the question is being answered. Is it being answered fully? Or is the lawyer answering some question that was rattling around in his or her brain, but not what you actually asked?

At that initial consultation you’re going to see a lawyer at his or her touchy feely best. They’re not going to get nicer. They’re going to get busier as the case goes on. If you see the lawyer checking his watch or looking out the window or whatever, that’s a warning sign. Again, if you ask a question and you’re not getting the question answered or the lawyer is not responding completely, or didn’t understand what you asked, or you don’t understand what he or she is saying, test that. Say, “You know, I heard what you just said but I really didn’t understand that. Can you explain that a little better?” See how they explain things because its so critical for clients to really understand what their lawyers are telling them. Those are the kinds of things. Again, I’ve got like twenty-five questions that you can ask. I strongly suggest you don’t ask all twenty-five; you pick a few. Those are the types of things that are important.

One more I’ll add is I also have a concept called “be your own paralegal”, there are lots of things that you can do as a divorcing spouse that you don’t have to pay a lawyer or a lawyer’s paralegal to do. That includes copying documents or scanning documents, or more than that. You can organize checking statements or putting them in order. There are lots of things you can do. It won’t happen if you don’t ask your lawyer. So ask the lawyer at the initial consultation. Say, “Listen, I’ve got a limited amount of money to spend on legal fees, I’m wondering if there are things I can do myself?” If you have a lawyer who responds positively to that, that’s a good thing. If you have a lawyer that says, “Well, no. We handle all that.” That may not be such a good thing because while they’re handling all of that, they’re going to be charging you for all of that.

Shawn: For those who want to get more information about you. I know we have just scratched the surface in terms of how to choose an attorney and that’s a small segment of your book, Divorce Simply Stated. What’s the best place to get more information?

Larry: We have a website called, strangely enough, DivorceSimplyStated.com and there’s more information on there, and you can contact me on there as well. There’s a contact page.

Shawn: Thank you very much for your insights Larry. This is excellent as I said. You have some of the best knowledge of any family law attorney out there, and you’re able to communicate it very clearly and descriptively for the people listening.

Larry: Thank you Shawn.