As we approach the holiday season of giving, many of us are tasked with a list of what presents we need to get for our loved ones, friends, neighbours, and perhaps colleagues at work. In family law litigation, it may seem like it is Christmas all year long because their clients always ask family lawyers to give them “a guarantee.” Of what, you may ask? They are looking to guarantee what they want when they want it and how much it will cost. By these standards, family lawyers are looked upon more like Scrooge, or the Grinch, as opposed to jolly ol’ St. Nick himself.
We are regularly the purveyors of bad news and realism, especially at a time in people’s lives when they need hope and optimism. To avoid disappointment, I, along with many family law lawyers, must explain to our clients that we will give our best efforts to get them the results they want in a timely and cost-effective manner. The smart ones put it in writing, usually in the form of a retainer letter and in reporting letters throughout the case. We must temper their expectations with the realities of what we can deliver. This blog will deal with why family lawyers do not, or at least should not offer guarantees of any of the factors underlined above, and why we must undertake this exercise at different points in the life of a family law file.
Over the past two years since I resumed private practice, I have lost a few clients due to my inability to offer them a guarantee. They tell me that personal injury (p.i.) lawyers do it – we all see ads like “you don’t pay if we don’t win.” That might work in p.i. law, and in other quick and dispositive legal transactions, such as wills and residential real estate matters. So why not family law? There are a few reasons why not.
When we initially meet our clients, they tell us their background story and then tell us what they want. We want to please our clients, and in doing so, we tell them what we can do. But we need to be candid with our clients by giving them what I refer to as “real-world advice,” i.e., what are the concrete results we can deliver to them when the case is over? For example, I have many clients who come in and say they want a 50/50 time-sharing routine. At first blush, a lawyer may want to guarantee that result because the prevailing trend in family law would seem to allow for that (given the concept of the “maximum contact principle”). But we need to look at the facts of the client’s actual case – Has the client always been in the child’s life? What has been the status quo? Is the client-facing any allegations of domestic violence? Does the client live in the same city as the other parent? Are the children old enough to say want or do not want a 50/50 time sharing? The client may want certainty regarding the amount of child and spousal support they will receive. Can we prove that the other side makes what the client believes they make? Will the other side comply with an order for financial disclosure? Or will they up and quit their job or get paid under the table once a support order is made? Not as certain, is it?
So, after a second sober thought, a pragmatic lawyer will advise the client of what they believe is possible to obtain. To do otherwise would set your client up for disappointment and yourself up for being fired (or worse, claimed to be negligent). In personal injury law, a lawyer will only offer the client an assurance of success once they have all the facts of the case and determine that the case is likely to result in an award of damages in a certain range. As a family lawyer, we must do likewise and tell the client what they need to hear and not what they want to hear.
Next, let us look at who the opponent is in the family law case. Unlike personal injury law, where the personal defendant is joined in the litigation by an objective, powerful and well-funded insurance company, the family law client must face a former intimate partner who may or may not have a lawyer. We ask our clients a series of questions about the former partner and what motivates them. For example, who ended the relationship? Why did it end? Was there any infidelity, and if so, with whom? How long ago did it end? Have they emotionally moved on from the relationship, or are they still in the denial stage of grief? Do they have a new partner in the picture? Where do they live? Who is helping to pay for their case, i.e., are they privately well-funded, or are they hanging on by a financial thread? Are they on legal aid, or are they going to self-represent? Even after asking these standard questions, the lawyer usually needs to see for themselves what they are up against instead of dealing with a no-nonsense seasoned insurance defense lawyer who must litigate within the parameters of the law and the rules of legal practice. We may be dealing with a bitter, angry, and vindictive former partner of our client who may be committed to making the life of our client as difficult as possible. It is even more challenging if the party does not have a lawyer. I will address the issue of dealing with self-represented litigants in a future blog. Still, it suffices to say that a case that ought to be simple and easily resolvable can easily go off the rails from the outset if the other side is unreasonable, unprepared, unstable, or unethical.
With the factors I have just mentioned, it is practically impossible to offer a client any guarantee of the result, the time it will take to get the result, or the cost in finalizing their matter. That is why an experienced family lawyer will give a client an outcome range, a cost range, and a time range, usually in accordance with the stages of the case, e.g., to get to and complete the case conference stage, it should take 3 to 4 months and cost between $2,000.00 and $3,000.00 (for example only).
Finally, let us now assume that the lawyer has followed the “best practices” referenced above, and after a year or more of being in court, we are poised to achieve the result that the client is expecting. When we are at the final settlement stage or the trial stage, we tell our clients what to expect as we near resolution. This is the most critical point of the case, and it is where most clients need a lawyer who is well prepared, experienced, but most importantly, practical. We give our client the realistic options: do we settle/compromise before trial, where the client retains control of the cost, timing, and outcome of their case? Or do we take the matter to a trial, where we leave the decision to a judge, a human being who comes to the courtroom with their own conscious and unconscious biases and trends, and who may or may not have any particular expertise in family law? We review the evidence to be given – is it solid, is it acceptable, is it relevant, and is the client and the other witnesses able to withstand the scrutiny of cross-examination and judicial questioning?
Putting those legal questions aside, let us add-in the other usual unknowns:
- How long will it take? – many a three-day trial has gone on for three weeks; can the client get that time off work? Who will watch the children? Will the witnesses be available at a moment’s notice?
- How much will it cost, and can the client pay that cost? –the client may have budgeted and paid for a three-day trial, but can they eventually pay a legal bill of $30,000.00 to $50,000.00 if it goes much longer than expected through no fault of the client? Can they count on the other side paying their legal bill in a costs order? What if the other side is impecunious?
- Will the final decision be enforceable? – some clients are elated to succeed at trial, only to be met with the dismal prospect that the other side will never pay the support ordered or will be fighting with the FRO in court for the next 10-15 years? Will the other side frustrate any meaningful access or time-sharing provisions by making claims of harassment or abuse? Will they alienate the child against the other parent to where the child no longer wants to see the parent? Will the court force them to go?
- What is the human toll of going to trial? – did it emotionally and financially bankrupt the client? Did it leave their family unit completely fractured and beyond repair? What will be the long-term impact on the well-being of the child? Did they feel like they had to choose between mom and dad? Were they made aware of all the fighting and hostility through the case?
As a client, you now have a better understanding of why a smart family lawyer will hesitate when you ask for a guarantee. Unlike making a list for Santa, and having only to wonder if you are on the “naughty” or “nice” list, asking for a guarantee of an outcome of your family law case can result in you getting a “lump of coal” in your stocking. Usually, in the form of an unpayable legal bill, an unfavourable decision you have to live with, and/or an unenforceable monetary award. Sadly, you will not be able to return any of these items to “the North Pole,” nor can you get a refund or in-store credit note after the holidays are over.
So make your list, check it twice, and then after a consultation with your family lawyer, you must decide whether looking for a guarantee of success in your family case is worth the price.