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“The early bird gets the worm, but the second mouse gets the cheese.” — author unknown.
I once had a client who became outraged that I was being courteous toward my opposing counsel. “This is a war, and you will conduct yourself accordingly,” he said heatedly. “No,” I responded, staying cool. “This is a dispute, and I will conduct myself professionally.” The client suggested that if that was so, perhaps he would have to decide whether he still wanted my representation. I agreed with him.
When you fight with a sword (and I do, sometimes), success in battle is all about what you can understand and control: the capabilities of your own weapon and how far you can strike with it, when to close with your opponent and when to retreat, where to block and how to avoid. The fencer learns to see the pathways an opponent can use to attack, and how to manipulate that attack to his or her own advantage. Lose your cool, and you’ve lost the battle. The same thing is true in front of a judge; and the higher the stakes, the more complex the dispute, the more critical it becomes to keep a sharp mind in a cool head.
For some lawyers, the best client is an angry one.
Why? Money, that’s why. Lawyers make most of their money from the fights, and some are less particular than others about how they earn it. It can be music to the ears of the more mercenary among us to hear a client say that he or she wants a “bulldog” or a “spitfire” for an attorney. They are out there, and they will gladly take your money as you pay them (and pay them, and pay them) to turn every little disagreement into a major fight. I feel compelled to point out to clients that it doesn’t have to be your fight that pays for my next vacation, unless there is no better alternative. I never shy away from a fight, and I will use every tool and weapon at my disposal to win it, but even war has its rules. Below are some suggestions for getting the most out of your lawyer’s professional services (and the best bang for your legal buck) when the fight becomes necessary.
Use your own judgment.
This is your case, and not your lawyer’s. At the end of the day, your lawyer goes home and gets on with his or her life, but this is your life, here and now. You, and not your divorce lawyer, have to deal with the consequences of the choices that you make. Your child, and not your custody lawyer, will grow up in the aftermath of your litigation. Your family law attorney looks at a situation in terms of leverage and advantage: dollars to be won or lost, odds of success to be maximized, goals to be achieved. It is not for him to say what is best for you, and he can never understand your children’s needs the way that you do. A good rule of thumb when working with a lawyer is: your goals, his strategy, and a good lawyer will discuss and explore those goals with you to help you set them based on reasonable expectations. A good lawyer will listen to you, and try to understand and clarify your priorities.
Gather your information and documents, knowing that the more organized you are, the less organized you have to pay your family lawyer to become. Ask your attorney what he or she needs from you, and supply it as soon as you can. Become your lawyer’s partner and clerk, and ask what legwork you might be able to do yourself to reduce your legal costs. Documents and information are the ammunition of the courtroom battle, so make sure you stop throwing them away if they might have anything to do with the dispute that is bringing you into court. Incidentally, you will make your lawyer much happier by not writing on documents that might be submitted to the court as evidence.
Weigh your risks, choose your battles.
Disputed issues often turn into games of “chicken,” and if no one veers off the crash happens in a courtroom. You no longer have exclusive control of your situation, even if you once did; instead, control belongs either to you and your spouse or co-parent reaching agreement, or else it belongs to the judge. If agreement is not an option, the rule is the same in a courtroom as it is in a casino: never gamble what you are not prepared to lose. People do not always get justice just because they deserve it, and there are certain forms of justice that a court is simply not equipped to offer. Every case has its strengths and its weaknesses, and needs to be managed with that in mind. Also, make sure that the possible rewards of a fight are worth the cost of achieving them; fighting just to fight is a good way to drain your resources and exhaust yourself, and even if you win it might only be to become king or queen of the rubble. A good lawyer will advise you where to push and where to back off to maximize your advantage, and will try to save you money and aggravation by narrowing the scope of your dispute so that you only have to fight where you and your spouse actually disagree.
Avoid both negative return, and false economy.
When I was in college, I once stood in line for eight hours for tickets to an Eddie Murphy concert. It isn’t that I like Eddie Murphy that much, it’s just that after waiting in line for two hours I didn’t want to put the time to waste by walking away. After four hours of waiting there was no question of leaving. After seven, a cyclone couldn’t have torn me out of line. That ticket was mine, and that was all there was to it. The same thing can easily happen in a court battle, when good money begins to go after bad. I once worked on one side of a civil matter where the two parties had already paid their lawyers more than the value of the thing they were fighting over, and by that time they were fighting just to break even! Always ask yourself — and your lawyer — whether you risk the same thing. On the flip side, there are times when an ounce of prevention really is worth a pound of cure. I handled a case where two parties decided to save some money on lawyers by drafting their own settlement agreement, and then found themselves deep in expensive litigation (with over a hundred thousand dollars at stake) over their different understandings of some of the provisions. Money that should have been spent is all too likely to get spent anyway, along with much more. A good lawyer will try to keep you out of trouble before it is necessary to get you out of trouble.
Learn to see through a judge’s eyes.
There is a famous story in baseball, about a pitch at which a batter chose not to swing. When the batter got impatient over the umpire’s silence, he said, “Well? Is it a ball or a strike?” The umpire replied, “Son, it ain’t nothing until I call it.” Meet your judge. Passion won’t impress. One of the most dangerous things you can bring into a courtroom is an unshakable sense that you are right, and that if only you can get the judge to see things the way you do, all will be well. The judge doesn’t know you and your opponent from Adam and Eve, but knows the angles and has seen situations like yours play out time and time again. Your judge’s kingdom is a small one, but within it he or she is an absolute monarch. A judge doesn’t need nor want to know every little aspect of your situation, just what seems most necessary to let him or her make a decision that is both fair, and consistent with the law. Your case does not have to be perfect, but it does have to be both well-organized and well-supported, and presented in a way that allows someone with little or no prior knowledge of the situation to gain a rapid understanding. Conduct yourself respectfully in the courtroom, and discuss in advance with your lawyer what to expect, how to dress, and what to avoid during the proceeding.
What price for closure?
A case can be settled at any time, even on the day of trial (and you might be surprised at how often that happens). There is no such thing as a “slam dunk” in front of a judge, no matter how strong your case might seem, and it is sometimes that very uncertainty that leads people to consider settling their cases instead of letting a judge decide them. Whether to settle a case, and when to do it, is often not so much a legal decision as it is an intensely personal one. In the family court, closure often has a dollar value: what you are giving up that you might not have to, or what you choose not to go after that you otherwise could. If you reach an agreement with your spouse or co-parent, it is your lawyer’s job to make sure that you understand the consequences of that decision, and that you actually get the closure that you seek.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my office to set up a personal consultation with a Pittsburgh child custody lawyer, or to learn more about Pennsylvania family law representation. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
Greenstein Family Law Services, P.C.
1789 S. Braddock Avenue, Suite 590
Pittsburgh, PA 15218