In those years, while there was no shortage of work, there was a shortage of high-paying work. The huge “shopping center” solicitor cases and the major-loss car crash claims were few and far between. Those cases paid big money, but there was stiff competition for them, and I was new to the business. I soon found, however, that even though the big sought-after cases were in short supply, there was an abundance of family law cases and claims, and very few lawyers who were keen to do that work.
Now, 25 years later, the world has changed radically, but this aspect of the practice of law remains unchanged. Today, perhaps more than ever, there are thousands of families all across the continent with a variety of family law problems. And believe it or not, there’s a shortage of competent, caring family law lawyers who are willing to help.
Maybe young lawyers don’t go into the practice deliberately because divorce law isn’t really all that sexy. Aside from some interesting fictional insights offered long ago when L.A. Law romanticized the glitz and glamour of divorce practice, there’s never really been any doubt that divorce law is the least popular kind of work in the field. Really, no law student lies awake at night dreaming about being an advocate in a custody case. Instead, the law student’s dreams are focused on constitutional change in the Supreme Court, or winning a huge environmental challenge, or freeing an innocent person. Arguing over the daycare arrangements for Sally Smith just isn’t that glitzy. Tom Cruise would never have to do a case like that in a movie!
Moreover, if you are a young lawyer with $100,000 in student loans and a group of friends who have already been in the labor market for four or five years, you need to practice in a remunerative area, and recoup your expenses.
Although many films and series have depicted legal careers as easy pathways to exciting cases and the effortless accumulation of unimaginable wealth, anyone on the reality side of the room knows that family law is not like that. Most divorce lawyers work long, hard hours in difficult circumstances, with challenging clients, and earn a modest income. It’s a difficult job that requires special skills. Sometimes, it just doesn’t pay well. As a result, it’s not seen as an attractive kind of practice.
For that reason, family law is underpopulated by lawyers. That may be one reason why many litigants choose to represent themselves — there just aren’t large numbers of available divorce lawyers around, and those that are skilled and experienced are not inexpensive. Really, it’s the law of supply and demand.
As well, because family law cases are expensive and seem to arise at a time when a family is already experiencing economic (and emotional) turmoil, many spouses facing family law cases do so without any legal help whatsoever. It’s not that they want to act for themselves — they simply do not have the money for counsel. The erosion of legal aid for family law clients has caused even more warring spouses to act alone.
This trend cannot be seriously challenged. More and more, separating spouses are finding it impossible to pay lawyers for help. This creates challenges for society generally, and for judges and the development of legal precedent.
The number of unrepresented divorce litigants has been on the rise for some time, and in my jurisdiction at least, it seems unlikely to change any time soon. The result is that many family law cases are decided by judges who have not heard all the facts or all the arguments, simply because the parties are self-represented and lack the training necessary to explain their side of the story in a convincing and persuasive way. Not having an experienced divorce lawyer on your side can have disastrous effects which may last forever.
In the years that I have been doing this job, I have seen many self-represented litigants. Some have been surprisingly professional and persuasive. Most, sadly, lack the skills and objectivity to do a good job with their own case. You don’t need to be foolish to miss facts and destroy a case. Some very clever people have managed that.
By acting for yourself in litigation (and sometimes even during difficult negotiations) you can miscalculate. What matters in law or fact can be overshadowed by your concern over an insignificant detail. In court, presenting your own argument can often prove disastrous. You may, in the process, alienate the judge or destroy your own argument. When you act for yourself, you take the “arguing lawyer” who acts as a buffer out of the equation. Usually, your proximity to the sensitive issues and your complete lack of objectivity is enough to ruin your chance of a fair hearing.
What is really unfortunate about self-represented litigants is that most of them don’t understand enough about the system to appreciate which tasks they can safely do on their own and which tasks truly require legal advice.
Consider the following examples:
• Most lawyers will perform task-based assignments, and are willing to work on a piecemeal basis. Some call this “unbundling,” meaning the lawyer does not act for the client generally, or on all matters, but is only retained for a specific purpose. For instance, sometimes I am hired to review a separation agreement (and “fix it”), or for the purpose of opposing one part of a court case. Other times, I’m retained only to conduct a trial. In this way, the client has the benefit of counsel for part of the case, but does not suffer the expense of a general retainer.
• Some of the work that lawyers and their staff perform (and charge for) is work that the litigant can do without any risk and without any legal knowledge. For instance, the client can organize documentary materials, provide witness summaries (outlining the personal particulars of each helpful witness and providing a summary of what the witness will say, etc.). This can and should be done by the party — not the lawyer.
• Another alternative is to retain a lawyer to give advice, but to conduct the hearings yourself. I recently did this on a case involving a local father, and it worked wonderfully. The father was a sensible man and had a reasonably strong case. He was quite able to conduct the trial himself and only needed guidance with the procedure and the legal principles. He retained me for general advice, and I talked with him a half dozen times before the trial and every day during the trial. He succeeded, as I thought he would, in his claim for custody. By acting for himself, he probably saved $25,000. This is a risky prospect, and should be reserved only for certain scenarios, but it can always be considered and kept in mind as one option.
What I am suggesting here is that there are alternatives to the traditional lawyer/client relationship. It’s not an “all or nothing” proposition. Each case is different. What worked for your friend may not work for you. Many of my most reasonable clients would be disasters in court and would be easy prey for the most junior lawyer. Other clients can do most of the work themselves and need me only for specific tasks. Still others can negotiate and settle a case, and want me only to review their agreement or assist in drafting it. Gone are the days when every separating spouse needs $25,000 and an aggressive lawyer.
Still, understanding the concepts and putting them into play are two very different things. In order to achieve your separation objectives without breaking the bank and without nasty litigation, you need to be committed to the process. You need to understand that if you play your cards correctly, you can have a “happy divorce.” It’s not a result that is available to everyone, but you will never know unless you try.
1. Similar Cases; Extremely Different Results
I was quite a distance into my career before I realized that the concept of a “good” separation or divorce was realistic.
The event unveiled itself rather innocuously, on a rainy Tuesday morning in November. I had started early that morning, as I usually do, preparing for appointments, upcoming court cases, and answering electronic and snail mail. At about 8:00 a.m., my first appointment arrived. The client, a pleasant looking, middle-aged woman with a small briefcase and a quiet demeanor introduced herself and came to sit in my office. I’ll call her “Mrs.