Chapter 8
HIRING AN ATTORNEY
An Excerpt from
SPLITTING: Protecting Yourself While Divorcing a Borderline or
Narcissist
by Clinician and attorney William
Eddy.
You
can also read more about the booklet by clicking HERE
To order, call 888-35-SHELL (888-357-4355).
Perhaps the single biggest decision in handling a court case
involving a Blamer is selecting the right attorney. Interview
at least three attorneys before choosing the one you want to retain
as your advocate.
Ideally, you will find an attorney who:
Has experience in your court: It helps to have
someone who knows what the various judges are like and what to
expect in their courtrooms. There is some variation between counties,
so it is best to get a local attorney who knows the local rules
and is respected by your judge.
Is easy to communicate with: You want an attorney
who is open to your input and concerns and will work closely with
you in handling the surprises and legal maneuvering common to
cases involving a Persuasive Blamer.
Understands difficult personalities in family court cases:
While you may not find an attorney with specific knowledge of
Borderlines and Narcissists, some are better than others at handling
the common manipulations and false statements of "difficult
personalities" in family court cases.
There are presently very few attorneys who recognize and understand
the patterns of Persuasive Blamers. Therefore, you should focus
on finding an attorney who meets the first and second criteria.
If you can find an attorney who is experienced in your court and
easy to communicate with, open-minded, generally accessible (returns
calls) and willing to share decision-making with you, you may
be able to educate them on the personality issues.
The booklet The ABC's of BPD published by the Personality
Disorder Awareness Network, is a short booklet designed to inform
legal professionals about BPD. Go to www.BPDCentral.com to see
when the booklet will be available. You may also want to purchase
another copy of this booklet for your attorney.
There are many attorneys out there now who have some understanding
of mental health issues and may be familiar with difficult cases.
While there are familiar patterns to many family court cases,
attorneys just do not see them as personality problems. They view
the Blamer as a jerk, a liar, or an incredibly frustrating opponent.
Yet many are familiar (from lots of experience) with what works
and what does not work in handling the "opposing party"
in a court case, even if they do not understand why. Ask about
their experiences with "difficult cases."
WHERE TO LOOK?
Following is a list of some of the people who may be able to help
you find useful information.
Mental Health Professionals
I suggest that you contact a mental health professional who frequently
works on legal cases who will be able to refer you to a good attorney.
For example, there may be a psychologist, clinical social worker,
or family counselor in your county who regularly testifies at
court or does assessments for the court. You could call your local
mental health organizations or referral lists for such a person,
or call a local psychiatric hospital or counseling clinic.
Explain your case and ask for referrals to three attorneys you
could interview. You are more likely to find an attorney you can
work with this way than to make cold calls through the phone booklet.
Family and Friends
These may be the next best source, as someone may have had a good
experience with an attorney who can give you a referral to an
attorney who regularly deals with the issues in your case. Ask
around, then interview the attorney yourself.
Referral Service
If necessary, call the lawyer referral service for your area.
Most County Bar Associations have one. They usually give out three
names and encourage you to call and interview the attorneys yourself.
Court Observations
If you have time, go to the court where your case will be heard
and observe attorneys interacting with each other and arguing
their cases. If you like the way one handles their case, go up
to him or her afterward and ask for a business card.
However, be careful not to assume that the most aggressive in
court will be the most beneficial for your case. Some attorneys
appear very aggressive, but do not have a good reputation and
may be presenting information that is misleading or wrong.
Just as you want to adopt an assertive approach, seek an attorney
who appears knowledgeable and respected by the court for being
assertive rather than dramatically aggressive. You will have a
judge, not a jury, so dramatics often fall flat in family court.
I remember one judge saying to a dramatically aggressive attorney:
"Now that you're finished venting, I'm going to look at the
facts of the case."
Clerks at court are not supposed to give legal advice. But they
are familiar with the attorneys who regularly come to court. Sometimes
they will give you hints about who is good and who to avoid. You
might ask a clerk, "If I had to choose between so-and-so
and whats-her-name, who would you suggest?"
WHAT TO ASK?
Keep in mind that you are forming a close relationship with someone
who may really help you or may turn out to be of little assistance.
There is a wide range of attorneys and you will want to find one
who fits with you.
Do not take an adversarial approach to interviewing and developing
a relationship with an attorney. It will only hurt you in the
long run, because the attorney will consider you a difficult client
and be less motivated to go the extra mile in handling your case.
Questions to ask a potential attorney:
Q. How do you usually communicate with your clients?
Look for answers that include usual response time on returning
phone calls of at least 24-48 hours, depending on the urgency
of the issue.
You don't want an attorney who will not speak to you, but will
have all of your concerns handled by an assistant, associate,
or secretary. (It's okay that they have staff, but don't let this
be a substitute for your contact with the attorney, when you want
it. On the other hand, it may save you money to speak with an
assistant or associate on issues you don't need to address with
the attorney. You just want accessibility; you don't always have
to use it.)
Ask if is it easy to schedule an appointment with the attorney
if you want to discuss issues in the case. When you speak with
the attorney, notice if he or she is distracted by other matters
(phone calls, papers to review, etc.).
Does this person seem attentive? Are they a good listener, or
do they interrupt and take over the direction of the conversation
before you can explain your concerns? Do they jump to conclusions
about your case? Are they honest with you about periods when they
will be unavailable, about the weaknesses your case, and about
their experience?
If you are not comfortable with the attorney's answers, interview
another attorney. However, keep in mind that attorneys can be
tied up with all-consuming court cases for a few days at a time.
They may return your calls, but a day or two later. They may have
a staff member contact you.
But if the communication feels good when you do talk with the
attorney, then the relationship may work well. Remember, when
your case is going to court you will want your attorney to be
just as absorbed in it and less available to others at that time.
Q. Do you prefer to negotiate or go to court? About how many
cases have you settled this year? About how many cases have you
taken to court for hearings or trials?
Generally, you will want someone who will attempt negotiations
at first. Negotiation efforts may be able to keep a case from
dramatically escalating into a huge prolonged, unnecessary court
battle. This works, even in some cases of Blamers as discussed
in Chapter 3.
On the other hand, if negotiations fail you want someone who is
comfortable in court and knows the ins and outs of court procedures
in your county. If they routinely take all cases to court without
sincere efforts at negotiation, then they may be less likely to
care about the outcome of your case.
You want someone who is committed to solving their clients' problems
using whatever methods are appropriate, rather than someone who
applies the same approach to all cases as a matter of unconcerned
routine, whether its negotiation or court.
Q. Have you ever handled a case like mine before?
Ideally, they will say yes. Some attorneys may have had lots of
experience with your type of case, and others will be relatively
new. Experience matters a lot in the law, as there are so many
details, rules, and tools that can be used. It is often helpful
if the attorney is familiar with your judge and how your judge
handles cases like your.
If you like an attorney but they do not have much experience on
issues like yours, see if they have a colleague or mentor with
whom they can consult. Sometimes a new attorney will spend a lot
more time on your case just for the learning experience. This
can benefit you if they have a more experienced attorney available
for consultation who can point them in the right direction.
On the other hand, an experienced attorney does not have to reinvent
the wheel. A more experienced attorney will know what tools they
can use in handling your case and may have some legal research
and documents they can use from similar cases recently handled.
Q. What steps would you take in handling a case such as mine?
There is no right answer to this question. Mostly, you want to
see if their steps make sense to you. See if they explain things
to your satisfaction. This will give you an idea of whether they
are familiar with the common problems of a case like yours or
if they seem to be guessing. You will also get an idea of whether
you feel comfortable with their approach.
The response to questions you ask about their proposed steps will
also help you decide how you feel about the potential attorney.
Q. Do you believe that most abuse allegations are true or
false?
You want an attorney who does not have presumptions that abuse
concerns are always true or always false. You want a skeptic who
will do some research, ask lots of questions, and seek corroborating
evidence. You want someone who will remain open-minded and will
stick with you even if new issues and information arises.
You also want someone who will be honest with you if they think
that you are mistaken or misperceiving events.
Beware of attorneys who readily accept any abuse allegations made
by you or against you without question. They will often turn against
you in the middle of the case when someone else makes a damaging
statement against you - however false.
If they are easily emotionally persuaded, they might suddenly
change their mind on one strong statement rather than weighing
all the evidence. They also may have a reputation for jumping
to conclusions.
Q. What is your reputation in this legal community?
This question will give you a good idea of how the attorney sees
himself or herself and what is important to the attorney.
If the attorney brags about being ruthless, you may want to consider
looking elsewhere. Judges tend to have the most respect for those
attorneys who are oriented toward problem-solving and helping
clients resolve their disputes. They do not necessarily like or
respect the attorneys who like to keep fighting, escalating fees
and controversy.
On the other hand, you want to avoid an attorney who sees him
or herself as great at settling all of their cases. They may try
to get you to settle a case that should be fought for and decided
by a judge.
Find an attorney who is known for both settlement and court experience,
so that they will apply the approach that is most appropriate
to your case.
Q. Ask if you can have 2-3 names of current or former clients
to talk to?
This is a delicate question and you may not want to ask it if
you already feel comfortable with an attorney. Some attorneys
will feel offended by this request, while others will want to
protect their clients from unnecessary intrusion.
However, if you are unsure which attorney to hire after interviewing
two or three, talking to other clients may be the way to make
your decision one way or the other. The attorney's response to
this question may tell you enough without even calling anybody.
WHAT IS A REASONABLE FEE?
Rates vary greatly around the country, but it is not unusual today
for Family Law attorney's fees to range from $100 to $400 per
hour, depending on your geographic area, the years of experience
of the attorney, and the number of hearings involved in the case
(which is often determined by how driven the Blamer is to bring
large and small issues to court).
Have access to at least $5,000 to $10,000 for a retainer to start
a very assertive approach to handling a case with a Blamer.
Keep in mind that an entire case involves several hearings, experts,
many delays, and responses to ever-escalating abusive conduct
and/or false allegations. This can range in cost from $5,000 to
$50,000, and sometimes higher.
Also, keep in mind the future potential costs if the Blamer is
back in court several times over the years.
If you get a good court order, you may have to bring the Blamer
back to court to enforce it. Additionally, if you get a good court
order, the Blamer may repeatedly bring you back to court in an
effort to get a different decision.
If you get a bad court order (such as finding you guilty of actions
you never did or the Blamer innocent of all real misbehavior),
you may need to bring the case back to court again (although there
are many restrictions about this and it is not always possible).
Ask your attorney if there are tasks you can do to save money.
They may suggest research and gathering of information and documents.
However, this is limited, as the attorney is responsible for your
case once you hire him or her, and has requirements about what
tasks they must do (which will explained further in the next chapter).
Be financially prepared. You do not want to be in conflict with
your attorney about money in the middle of a difficult case. However,
you should be able to discuss money openly with your attorney.
Many attorneys do not charge you to discuss questions about their
bills, and some will delete a charge if you think it was excessive.
Find an attorney you can work with, not against.
The cost of the attorney should not be the deciding factor in
your selection. Just because an attorney is very expensive does
not mean that he or she will pay the most attention to the needs
of your case - or that he or she is the best for the issues you
are facing.
On the other hand, just because an attorney may charge less than
average for your area does not mean that he or she is less qualified
for your case. Realistically, you want the person who has the
best combination of experience, understanding of the specific
issues in your case, and the ability to communicate well with
you.
TWO TYPES OF ATTORNEYS
In looking for an attorney, it is helpful to consider common differences
in their approaches - especially to cases involving difficult
personalities.
The following is my non-scientific analysis of those attorneys
I have dealt with in and out of court over the past ten years.
They address the same legal issues, but advocate for their clients
very differently.
1. NEGATIVE ADVOCATE ATTORNEYS
As described throughout this booklet, anyone can be a Negative
Advocate if they assist a Blamer in promoting their cognitive
distortions and negative, often abusive behavior.
Some attorneys are habitual Negative Advocates. They try to take
most of their cases to court. They represent whatever their client
says as true, with little or no skepticism or investigation. Essentially,
they are representing their client's cognitive distortions or
"negative thoughts."
This is comparable to representing a drunk while they are still
under the influence - and accepting what they say as true.
Negative Advocates focus their attention on the judge. They treat
each issue as a win-lose contest, with the goal of winning the
most at court. Time is spent primarily preparing for court, waiting
at court and presenting ("arguing") the case.
They generally do not have close client relationships. They often
impress their clients, especially at the beginning of the case
with their tough talk and seeming support for their clients' allegations
and excuses.
The methods of Negative Advocates are adversarial from the start.
They are focused on advocating for their client's "position,"
rather than understanding and solving their client's "problems."
They focus on gathering negative evidence about the other party
because the negative usually weighs more in the adversarial process.
Subpoenas are routinely issued, depositions routinely taken, and
other forms of "discovery" pursued, often with no real
goal to gather information.
Intimidation tactics are common. They treat their client as "all
good" and the other party as "all bad." They often
consider themselves as all good (or smart) and the other attorney
as all bad (or stupid).
Negative Advocates seem to minimize contact or negotiations with
the opposing attorney (or unrepresented party), as they prefer
the threat of going to court.
In court, their goal appears to be to split the parties into "good
spouse" and "bad spouse" in the eyes of the judge.
They will raise minor issues and make them sound highly negative.
They will minimize major issues and make them sound insignificant
or untrue.
There is an appealing strength to their presentations and aggressive
manners. They can be charming--or hostile and deceitful --to win
a point. However, their tone, lack of empathy, and all-or-nothing
manner may eventually be turned against their clients.
Client Relationship
For Negative Advocates, the client appears to be a minor part
of the process. Client information may be obtained and used without
question. Clients may be minimally counseled about the law, how
to help themselves, or how to reflect on their own behavior. Clients
may primarily meet with support staff.
Negative Advocates do not seem to encourage mediation or negotiation,
although they may give lip service to these approaches.
Cost
Negative Advocates tend to cost the most because court takes so
much time--preparing documents, numerous hearings, and waiting
around. The more issues taken to court, the higher the cost and
the more money made.
Prevalence
Negative Advocate attorneys appear to be about 10-20% of all attorneys.
However, they appear in a much larger number of high conflict
court cases. They seem to be the attorneys who often represent
Blamers without question.
Negative Advocates can be some of the meanest people you will
ever meet. However, sometimes they are the nicest people - perhaps
too nice to their clients in accepting and advocating for their
cognitive distortions.
2. PROBLEM SOLVER ATTORNEYS
The focus of attention for Problem Solvers appears to be that
of solving problems rather than rigidly advocating for a position.
Hearings may be set at court, but Problem Solver attorneys generally
make a good attempt to settle issues first based on the legal
standards.
Methods
Their goal is to gather information that will help solve the problems
the parties are facing. They often counsel their clients to be
reasonable and to tone down their negative views of their spouses.
They encourage them to consider alternatives for possible settlement.
There may be subpoenas, depositions, and other discovery. But
often there is no discovery until the Problem Solver determines
it is needed.
Secondly, the attorney makes an effort to negotiate with the other
attorney (or party without an attorney) and attempts to settle
issues along the standard laws and guidelines with some give and
take. They do not try to intimidate, but rather persuade and find
areas of compromise.
If negotiation efforts fail, then discovery may be pursued and
the process becomes adversarial. Yet Problem Solvers can
remain generally friendly and do not try to unnecessarily escalate
problems. They tend to be sincere and interested in solving their
client's legal problems.
Client Relationship
Problem Solvers may educate their clients about legal standards
and generally communicate more with their clients than Negative
Advocates. They may support the use of mediation or negotiation
outside of court.
Sometimes they may act as consulting attorneys for those who represent
themselves. They expect their clients to act reasonably and give
them feedback when they do not.
Cost
In most cases, Problem Solvers cost less than Negative Advocates
because they settle many issues without a hearing. However, they
can cost as much as Negative Advocates if negotiations fail and
the adversarial process is pursued.
Collaborative Law
Many Problem Solvers have adopted the philosophy of the Collaborative
Law movement described in Chapter 3. I like this approach
and attorneys using it fit into this category in my opinion.
However, since Collaborative Lawyers will not take a case to court
by signed agreement, you need to evaluate whether to close the
court option when a Borderline or Narcissist is involved. The
chances are good that you will end up in court on some issue,
at least once.
Counseling Knowledge
Some attorneys have taken a mental health class or training program.
They focus on solving their client's larger problems, which often
include some need for mental health information or treatment as
well as legal assistance.
By addressing the mental health issues, they help their clients
resolve their legal issues. This can range from recognizing a
substance abuse problem to helping them cope with a spouse with
a personality disorder.
These attorneys generally educate their clients on how to help
themselves and how to handle the legal problems and personal problems
related to their case. They encourage mediation or negotiation.
Court may still be used as needed--especially in cases needing
control of abusive behavior.
Prevalence
Problem Solvers are the vast majority of attorneys. However, they
do not get the attention that Negative Advocates seem to want
and get.
Which Type is Best For You?
While Negative Advocates seem to be very appealing, they often
escalate their cases unnecessarily and costs can be very high.
Problem Solvers seem to be more concerned about their clients
and resolving their problems. They can be highly assertive when
necessary, but reasonable at the same time.
Ideally, find someone who feels comfortable and can work with
you through all the ups and downs of your case.
***
Sarah's Case
Sarah seems to have found a Problem Solver attorney, referred
through the therapist she started seeing. Her husband also seems
to have a Problem Solver who is open to negotiations. They may
be able to work together to minimize the conflict and do what
is right, even though they may not understand Blamers.
Thomas' Case
Thomas has been fortunate to find an attorney who is familiar
with abuse and false allegations of abuse. He also knows about
Blamers in family court cases.
It appears that Tammy has found a Negative Advocate who is uninterested
in communicating with Thomas' attorney and who has done nothing
to check out Tammy's claims. He expects a difficult year.
CONCLUSION
Hiring an attorney is often a worrisome task. Yet they are necessary
to the success of your case, since they know the law, know what
is important, and are respected by the courts, which helps in
these emotion-based, limited-fact cases. Asking for referrals
and personally interviewing several attorneys is best.
You are in charge of your case. Change attorneys if you feel uncomfortable.
If necessary, find a new attorney before dropping the one you
have, just in case you decide not to change.
Sometimes potential clients meet with a new attorney to discuss
dissatisfactions with their current attorney. After a brief discussion,
they often realize that their attorney is actually doing a good
job under the circumstances. It is better not to change attorneys
a lot - it tends to look like you are a difficult personality
and may negatively impact your case in the eyes of the court.
Interestingly, while attorneys have a generally negative stereotype
in our society, in surveys most clients report having a favorable
opinion of their own attorney. Find one who fits for you.
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