Choosing a lawyer is one of the most important decisions you will make in dealing with your divorce.
For most of us, and certainly those in higher financial net-worth brackets, a lawyer is essential. Take the time to research all options. You should seriously consider one of the following three alternatives before you hire a family law lawyer: mediation, collaborative law, and arbitration.
My advice is to compile a list of three or four family law lawyers and spend the time and the $300 to $500 hourly fee to interview each of them. It will be worth the investment to get one who is a good fit for you. Don’t commit to the first lawyer you talk to. As an aside, it is worth knowing that any lawyer with whom you have discussed your case is legally barred from further involvement in the proceedings – unless, of course, you hire them. Your spouse now cannot.
For each interview go with a list of questions already prepared. Some of these will be about your particular case and the issues of divorce, custody, access, child and spousal support, and property it will involve.
What are the possible outcomes? Even worst-case scenarios; it is always best to have a clear idea of what might be coming your way. In my view, you will want a lawyer who is willing to discuss your case in a frank manner; one who is not afraid to tell you things you might not want to hear.
Are there alternatives to litigation? Do they recommend mediation or arbitration? Is collaborative law an option? Get them to tell you about their experience in family law, and whether they have handled cases similar to yours.
How do they intend to handle your case? What kind of approach will they take: aggressive and uncompromising, or will they work toward a reasonable settlement?
Who will be doing most of the work? Most lawyers have assistants and legal secretaries that do much of the leg-work on your case. While that is necessary, and helps with the fees since their hourly rates are lower, you do want a lawyer who is actually there for you, not one who will hand your file off to a junior lawyer who will do all the work.
How accessible are they? How long you might have to reasonably wait before they might return your call or answer your email. Poor communication is one of the chief complaints law societies receive about lawyers.
Do they provide progress reports? Michael Cochrane, in his excellent guide Surviving Your Divorce, recommends that you ask your lawyer to supply you with regular progress reports – what he calls written reporting letters —something I never got. As Cochrane – a lawyer himself – says, “a good lawyer will not only report on the status of the matter but also summarize what happened, what options were open, which course was recommended, what the client’s instructions were and any other considerations.”
What is it going to cost me? One of the big questions you need to ask. Most good lawyers will offer you a retainer form to sign, which is a contract that outlines the hourly rates they charge, the expenses they bill, the billing policy and the work they are contracting to do on your behalf. If the lawyer does not offer you a retainer agreement, or won’t show you one when you ask for it, don’t hire them. Would you hire a home contractor to refurbish your kitchen without an idea of what it would cost?
The bigger money question is, of course, the ultimate cost of the whole process of getting to a fair and equitable settlement. This is difficult to answer accurately, but it is fair to ask for a ballpark figure. Also, ask for an estimate on how long the case may last.
It is important that you feel comfortable with your lawyer, that you trust and respect their opinion, and that they respect your opinion in return. I think you need to get personally involved with your lawyer, so that you understand every step you are taking. I am certain that some of the problems I had in my case, which prolonged the process, was because my spouse did not keep in close contact with her lawyer and he did not tell her clearly what was going on.
Are Legal Fees Tax-Deductible?
In Canada, with a few exceptions, legal fees paid during the process of obtaining a separation or divorce are not tax deductible. The exceptions include legal fees paid by a recipient spouse to obtain an order for child or spousal support, to enforce or vary an existing order for child or spousal support, or to defend against a reduction of child or spousal support.
Ways to Reduce Your Legal Fees
From day one, try to come up with cost-effective strategies you can use to your advantage to save you money in legal fees. Work with your lawyer to try to figure out what the most important issues are and don’t respond emotionally to everything. Try your hardest to focus on the big picture. Pick the battles that make sense. Spending $3,000 to fight a $5,000 issue doesn’t cut it, especially if you might not be successful.
Tips on keeping those legal bills down:
- Make meetings with your lawyer more efficient.
Don’t call or email your lawyer every time you have a question or concern. Bundling them together is substantially more efficient and will save you a considerable amount of money. When you meet with your lawyer have an agenda. Make a list of your questions and concerns. Organize them into issues or topics that you would like to discuss. It will help keep both you and your lawyer on task. Limit the amount of casual chit-chat with your lawyer. Remember the clock is ticking and every six minutes is costing you another $50 or more, depending on your lawyer’s hourly rate. Lawyers often count billable time in tenths of an hour. In every meeting with your lawyer, take notes. Find out what the expectations are. What is going to be the strategy to move forward?
- Try to do as many things as you can on your own.
A good example of that would be the Form 8. I had to do five of those financial statements; it would be very costly if my lawyer had to walk me through all of them. It was expensive enough just to have her review them.
- Don’t keep changing your mind on positions you’ve already agreed upon.
If you do, it’ll only cost you more money.
- Concentrate on the big issues.
As a popular books says, “Don’t sweat the small stuff, it will only cost you more money.”
- Don’t waste time and money venting to your lawyer.
Divorce is a highly emotional process, but complaining about your soon-to-be ex-spouse to your lawyer is probably not a good idea. It will only run up your legal bill. Find a friend or relative who will lend a sympathetic ear, because one thing is certain, you will need to vent.
Checking your Legal Bills
Discuss openly all billing matters with your lawyer while honoring the original agreement for services. Lawyers can be intimidating by nature. Be strong and don’t be afraid to ask questions.
Make sure you understand your legal bill. Look at the time allotted to each entry on the bill and try to figure out in your own mind whether or not you think that is reasonable.
Don’t assume that your bill is right. People do make mistakes with math. Get out a calculator and check the addition every month.
You should insist on a fully itemized statement of account. A list of tasks performed, with no time allocated to each task, followed by a large dollar figure, is not good enough.
Ideally, the bill should be broken down by date, a description of the service performed, who did the task (in many cases, lawyers use associates who should have lower charge-out rates), the time taken and the amount charged. Disbursements, both taxable and non-taxable, should be itemized below.
When you interview a prospective lawyer, ask to see a typical bill. If it is a laundry list of tasks followed by a total, either insist on receiving properly broken-down accounts – or find a different lawyer.
Example of a GOOD Legal Bill
Example of a BAD Legal Bill
Disputing Legal Fees
If you are unhappy with the fees charged by your lawyer you have some options.
First of all, I recommend that you talk it over with your lawyer, go over the details of your bill and ask for explanations for any charges that you feel are unfair. If you and your lawyer cannot resolve the disagreement there are several steps you can take:
- In B.C. the Law Society of British Columbia offers a Fee Mediation Program for disputes involving fees up to $25,000. It is a free, informal process for dealing with fee disputes quickly and efficiently without having to go to court. Both you and your lawyer have to agree to participate.
- You can have your legal fees reviewed by the BC Supreme Court registrar. This is a formal hearing conducted in the same manner as a trial, with each party giving evidence under oath and subject to cross examination. Be aware that if the legal bill is not reduced by at least 1/6th, the applicant will have to pay the costs of the hearing.
- A third option is to file a lawsuit in either the BC Provincial Court (Small Claims) or the BC Supreme Court.
At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including:
- the complexity, difficulty or novelty of the issues involved;
- the skill, specialized knowledge and responsibility required of the lawyer;
- the lawyer’s character and standing in the profession;
- the amount involved;
- the time reasonably spent;
- if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable;
- the importance of the matter to the client whose bill is being reviewed; and
- the result obtained.
Firing Your Lawyer
If you’re going to fire your lawyer, fire your lawyer early. Don’t agonize over it countless times like I did. There are some upsides to changing lawyers if you have good reason to do so. Sometimes bringing in new blood can alter the chemistry; the change in personality and approach may work better with the other side to resolve matters. And perhaps it might save you money, either by finding someone who will settle the case quickly, or someone who does not seem to find endless activities to bill against your file.
The question is always, how much energy and money will it take to hire a new lawyer? If the new lawyer is good, he or she will catch up on the case in no time. You might have to pay a few thousand dollars extra, but for many costly divorces, it’s peanuts.
I have found that it’s not unusual for divorcees to misuse this option. They may go from lawyer to lawyer until they find one that tells them what they want to hear. Some people going through divorce are grieving so badly that they have very unrealistic goals that cloud their logic, and when their lawyer doesn’t achieve them, they find another one. If you’re on the other end of this situation, it’s going to cost you dearly.