When meeting with a prospective divorce client during the initial consultation, after discussing the reasons for the breakdown of the marriage and obtaining the background information as to any financial and custodial issues, invariably the client will ask: How much in legal fees will this divorce cost me? I explain to the client that while I could only offer a ballpark range, there were too many variables to give a more precise estimate. Among these variables include the number and complexities of the issues involved, the level to which those issues are contested, the reasonableness of the other spouse and/or their attorney in regards to their positions, cooperation and/or course of conduct during the process, and the extent litigation or court involvement is needed to resolve these issues or whether they can be amicably resolved between the parties. What follows is a discussion of our firm’s fee arrangements in the handling of a divorce matter. I explain that unlike personal injury matters, the Rules of Court prohibit the handling of divorce cases on a contingent fee basis, except as to claims based on the tortuous conduct of another. R. 5:3-5 (b). Therefore, legal services are billed based upon the actual time spent working on the case at an hourly rate depending upon the attorney providing the services, and charged against an initial retainer amount to be paid by the client. These fee arrangements are detailed in a written Retainer Agreement as mandated by court rule. R. 5:3-5(a). Hence, in divorce matters when it comes to legal fees, time is truly money.
While the extent of legal services necessary to reasonably and zealously represent the client’s interests in a divorce action, and along with it the corresponding amount of fees, are often subject to the variables mentioned above which are beyond your control, there are a number of things which the client themselves can do which may save them significant legal fees in the process. The more the client does in assisting in the preparation of their own case, the less the attorney will have to charge them to do so. Again, time is money. The following are five such examples:
(1) Provide a Written Narrative or Summary.
After I am retained the first task I assign to the client is to provide me with a detailed written narrative or summary of their marriage. I want to know how and when they met their spouse, what each did for a living, their education and what assets and/or debts they brought into the marriage. I want to know about their interpersonal dealings with each other and the extent it changed during the marriage. If they had children, I want them to explain how they dealt with the raising of the children, any problems or how things may have changed or evolved as the children got older. More importantly, I want the client to detail the financial circumstances of the marriage including the acquisition and disposition of any assets, history of income and employment , and the nature and extent of lifestyle enjoyed during the course of the marriage. Receiving such a written narrative affords me an efficient means to obtain the background information of the marriage, potential issues in the case and the client’s perspective on those issues, and serves as a valuable resource in the preparation of future pleadings. Working on this narrative also forces the client to spend time focusing on the circumstances of their marriage, hopefully in a contemplative and deliberate fashion rather than under the stressful environment of their attorney’s office. Doing so has the benefit of saving the client considerable legal fees as opposed to trying to provide this information during a conference with the attorney – a process that is often lengthy and disjointed as the client attempts to recall things on the fly. There is also the inevitable “I forgot to mention” – leading to follow up phone calls or meetings, with their corresponding additional fees.
(2) Make Your Phone Calls to Your Attorney Productive Ones.
Invariably, there will be problems or questions that come up during the course of a case where a client will need to call their attorney for advice. Sometimes the need to call is prompted by a true emergency or a situation which requires an immediate response. However, more often then not, the client has general thoughts or questions or simply wants to talk about their case. While these calls are always welcome, clients may not realize calling less often, and when they do, making the calls more productive by addressing multiple items, will save them considerable fees during the course of the representation. Most attorneys bill their time based upon a fraction of an hour. Our office bills at a minimum interval of one-tenth of an hour (6 minutes). Hence, a one question, 30 second or minute phone call is billed at one-tenth of an hour – the same as if it had been a 6 minute phone call. A client making 6 one minute phone calls results in an attorney billing for six tenths of an hour, while 1 six minute call is only billed at one tenth of an hour. Hence, in the absence of an emergency, a client should make calls to their attorney which are productive by making an outline of points of discussions encompassing as many items as possible as can be reasonably covered in a single call, rather than multiple phone calls covering the same set of topics.
(3) Complete Your CIS As Much As Possible.
In most divorce actions in New Jersey each party is required to complete and file with the court a form known as a Case Information Statement. This CIS requests detailed information concerning that party’s income, expenses, assets and liabilities. We usually provide this CIS form to the client once this firm is retained and ask the client to fill it out and return as soon as possible. More often than we would like, clients return the form almost blank or half-heartedly filled in and expect the attorney to somehow complete the form for them. While sometimes this may be due to the fact that the client truly does not know and has no way of knowing details of the family finances, usually this is due to the fact that the client feels the form is too daunting and/or does not want to take the time or effort needed to complete it. However, as attorneys, we don’t know details of the client’s family finances. We are lucky if we know the details of our own family’s finances. Hence, we either have to sit with the client and go over the form line by line to complete it and/or have the client provide us with financial documents and records to review and hopefully obtain the information. Doing so results in the incurring of considerable legal fees, legal fees which could have been minimized had the client taken the time to do their best to fill in the CIS on their own. Given the importance of the CIS in the case, an attorney should always review the draft CIS with the client before it is finalized and filed; however, a client will save themselves substantial fees if they invest the time of doing the baseline work themselves rather than expecting their attorney to do so for them.
(4) Ditto With Respect to Discovery
In most contested divorce actions, the parties are asked to exchange “discovery”. One party will serve upon the other requests for information, generally in the form of written questions known as “Interrogatories” and/or requests to provide various documents known as a “Notice to Produce”. When we receive these discovery requests from the other side, we forward them to the client with a request that they review them, answer the Interrogatory questions to the best of their ability and compile any of the financial documentation requested to the extent they have it or is available to them. We ask that they provide us with their draft answers and/or the documents compiled so we can review them before they are finalized. Unfortunately, as with the CIS form, we frequently get back from the client discovery “responses” which are incomplete, if answered at all, or piles of unorganized records, with an expectation that we as their attorneys will answer the discovery for them. By not taking the time and effort to do so themselves, the client is looking at incurring thousands of dollars in additional legal fees as we either have to sit down with the client and go over each question/request item by item and/or go through and organize their documents and records. Not knowing or not having the information is one thing, not making the effort is another.
(5) Be Realistic
A break up of a marriage is a difficult and emotional time. That’s clear. For many there are feelings of betrayal leading to expressions of wanting to punish or get back at the other spouse. Sometimes these feelings translate to positions the client wants to maintain in the divorce action, regardless of how realistic they are factually or legally. Assuming that an attorney is ethically able to maintain these positions, the client must understand that doing so more often than not inflames the conflict, makes the matter more difficult to resolve and with it comes increased legal fees. Being able to temper positions driven largely by emotion is something a client can do to rachet down the level of conflict and hopefully reduce legal fees in the process.
While there are aspects of any divorce case which the client and their attorney may not be able to control, clearly there are things a client can do to help control the amount of their own fees. When it comes to legal fees, a client’s simple investment of time in their own case can save them money.