Locking the barn doors after the horse has escaped

Posted Sunday, November 27th, 2016 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants

There are a half dozen critical moments in each family court case when having an experienced attorney is critical: motions for temporary relief; contempt actions; mediation; when trial is scheduled; trial; and when post-trial motions are due.

A motion for temporary relief is often outcome determinative. The party obtaining favorable results can likely keep those results until trial, and use those results as the status quo at trial. The losing party will likely need the expense of trial to overcome those results, will likely be fighting the status quo at trial, and will be living with those results for a period of 6 to 18 months.

A successful contempt action can provide that party leverage in settlement negotiations and at trial. In extreme cases it can even lead to an alteration of the temporary order or foreclose certain relief for the contemptuous party. Successfully defending a contempt petition removes that potential leverage.

Being prepared to advocate a reasonable but favorable outcome at mediation may enable one to avoid the expense and risk of trial. Being unprepared for mediation almost always leads to an unfavorable settlement or trial being set.

Having an attorney begin trial preparation when the case is set for trial enables that attorney to conduct discovery and develop witnesses who increase the likelihood of success at trial. Lacking diligent counsel at this juncture leads to a less considered, more ad hoc, approach at trial.

At trial a good attorney can frame winnable arguments on contested issues, insure that favorable evidence is presented, and mitigate unfavorable evidence. A good attorney can also make sure that all favorable factors are presented to the trial court (which preserves these facts for appeal). No counsel or inadequate counsel generally means that these things are not done at trial, vastly increasing the likelihood of a bad result at trial, and also reducing the chance of overcoming a disappointing result at trial on appeal.

Finally, having an attorney handle the post-trial motion means that all issues raised at trial are preserved for appeal. A lack of experienced counsel generally means that some favorable issues raised at trial many not be preserved for appeal.

Every year I get contacted by prospective clients shortly before one of these critical junctures, who either lack at attorney or lack confidence in their attorney. Typically they want to know whether they should hire or change counsel now or wait until later.  My advice is always to hire/change counsel now. Often they reject this advice and contact me after they’ve received unfavorable results at that critical juncture. Occasionally, it’s too late to help them in any manner.  Frequently, their likelihood of achieving their goals is now lower. Always I am unable to help them achieve the same results for the same budget.

A belief that it is relatively immaterial when in the process one hires an attorney is absurd. No one would think it is immaterial when one first sees a doctor to treat a serious medical problem. Folks understand that delaying medical treatment can cause easily treatable issues to turn dire and that failure to seek treatment can even be fatal. It is no different for the law.

At each step in the family law litigation process failure to employ competent counsel makes the possibility of achieving successful results both more expensive and less likely. With the hope of saving money, such litigants actually court disaster. It’s always disheartening to hear back from litigants who I could have easily helped when they first contacted me, but who have now made their situation vastly more complicated and less amenable to a successful resolution. They hope I can get them the same results at the same cost that they could have achieved when they first contacted me. However that horse has left the barn.

3 thoughts on Locking the barn doors after the horse has escaped

  1. A half-dozen critical moments? Every moment is potentially critical. An incorrect financial declaration may omit critical property or debts and may result in impeachment. A motion to amend or strike allegations may determine the relevancy and admissibility of evidence. Critical language, such as non-modifiable, can create horrendous results for the unknowing and unsuspecting pro se litigant acting in good faith to resolve issues (Maxwell v. Maxwell, 375 S.C. 182, 650 S.E.2d 680 (Ct. App. 2007) which still leaves me bitter nine years later). A negative pregnant in a pleading may admit allegations the litigant thought he or she is denying. The list is endless. Read the poem from law school about “The Jolly Testator Who Makes His Own Will.”

    The cost of a lawyer may be outrageous but the cost of not having a lawyer may be much worse.

    1. Every moment is potentially critical but I typically only get contacted shortly before these six moments. And those six moments are almost always critical.

  2. David Smith says:

    Gregory, I think the majority of what you said is dead-on. However, I think your message was most accurate when you switched and said “good” attorney in the place of “experienced” attorney. Most attorneys will need to at least experience these different parts of a family law case to understand them. Family law is certainly its own animal. However, It has been my experience that often client’s may hire an attorney because of “experience”. Those same clients may later either lose to a newer attorney that put forth more effort, or fire that experienced attorney and hired the more dedicated attorney. Too often people believe experience alone makes someone good. Instead, I believe hard work and dedication can beat experience. Now, if a person finds an attorney with experience and that same level of dedication, then unless they have the worst facts imaginable, they will probably be just fine :)

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