An Open Letter from Your Divorce Lawyer
(This letter was written by one of the most recognized and prominent divorce attorneys in Baltimore. It was meant to be a humorous expose about his professional life and the realities of being a divorce lawyer. The irony this letter is that the contents of it are sarcastically true and factual. It was reprinted with his permission.)
I am pleased that you have hired me to represent you in your divorce. I'm pleased because I need the money you and others like you pay me. In reality, I am tired of working with people like you who are always fighting and never happy, and often unhappy with me. But I feel trapped now. I don't know how I could change my practice at this point in my career without a huge financial setback. So I hang on and do the best job I can, the best way I know, for clients like you.
If you're like most people going through divorce, you've heard a chorus of voices -- from your mother to your neighbor to the person who cuts your hair – warning you to better get a mean “junkyard dog” lawyer. I don't like being a “junkyard dog” lawyer, and I don't think it would be in your best interest for me to be one…but I have to give you the impression early on that I am so that you will hire me. I don't like doing it but you demand it. So I do it.
That means that when we met in our first consultation, I talked about how experienced I am. I gave you an optimistic, over exaggerated assessment of what you get if you decided to hire with me to represent you. If your spouse had come the same day (instead of you) and presented the very same facts, I would have given your spouse an equally optimistic assessment. I learned long ago not to lose any sleep about doing this. You demand it, and I'm going to give it to you - so you'll hire me.
You can see what happened now, can't you? I gave you an optimistic assessment of your case from your perspective, then one of my colleagues gave your spouse an equally optimistic assessment of the case from your spouse's perspective. Together, we worked knowingly or unknowingly to convince both of you that the other is being unreasonable and that you each needed us to win you a better deal.
I told you in our initial consultation that you should avoid communicating directly with your spouse about anything other than parenting your children. I did this because nothing is so important to me as client control. I want to be the gatekeeper of all communication between you and your spouse, so that I can decide how much information to provide you and what "spin” to put on it. This will make you and your spouse more suspicious of each other, and it will make you more dependent on me. I like that, at least in the early stages of divorce negotiations.
I required you to pay a large retainer when you hired me. I told you that I have a fixed retainer for all divorce clients. Or I may have told you that I set your retainer after carefully considering the complexity of your case, the time I expect to put in, and the risk that my estimates might be too low. In reality, though, my technique for setting your retainer was far simpler. I charged the highest retainer I thought I could get. The reason I did this is that the retainer is often the only money I see for representing someone in a divorce case. I may try to bill you and get paid later, but most of my clients don't pay me anything after the initial retainer, even though they owe me a great deal of money. And I hesitate to sue them for fear they will counterclaim for malpractice and drive up my insurance premiums. The fact that I have so much trouble getting clients like you to pay me what they owe me is another reason my work is so unpleasant.
Another reason I charge a high retainer is that I have trouble justifying my hours to my clients. Realistically…how can I expect to get paid if I say that I spent 6 ½ hours negotiating who should get custody of your dog? Whether or not I really spent the time is irrelevant. Practically 90% of the time I say I spent working for you can't be proven anyway. And if you really knew how little time I actually spent on your case, there's no doubt that you would sue me for return of your unused retainer.
I also will do everything I can to appear successful…incredibly successful. I drive a luxury car and maintain a sumptuous office because I want you and my colleagues – especially my colleagues – to believe that I am earning lots of money. In one sense, I am earning lots of money. I charge a high hourly rate, and I have a great deal of business, so I have high billings. I also have high overhead (most of it just for show). And I have trouble getting paid. In reality I have financial struggles just like you do.
There's more than a 93% chance that your case will settle before trial. Nevertheless, I will prepare your case as if it were going to trial. This will be wasteful and expensive. I will conduct lengthy discovery, including interrogatories (thicker than an encyclopedia), requests of the production of documents, and depositions. And I will charge you a great deal of money to prepare these documents that I simply have printed from my word processor with minor changes.
I will do this not because it's in your best interest but because I'm afraid of being embarrassed in front of other lawyers and judges and I'm afraid that you will sue me. The result is that you and/or your spouse will spend a great deal of money preparing for a trial we know will most certainly not occur.
I live my professional life in and around the courthouse. I gauge my schedule and my priorities to make sure cases that have an imminent court date are ready to present. This means that if your case doesn't have any imminent court date, it will be hard for me to focus much attention on it. Your case will move much more slowly than you would like.
When we are at the courthouse, there will be huge blocks of time when I will leave you alone while I negotiate or just swap stories with your spouse's lawyer. Every now and then, I'll report back to you on progress and tell you how negotiations are going. You probably will find it jarring that I'm so friendly with your spouse's attorney. Remember you and I have a temporary relationship. Your spouse's lawyer and I have seen each other several times a week for years, and our relationship will continue long after you've gone from my life. It's not surprising then, that I'm more attentive to that relationship than I am to the one with you.
Although at the outset I stated an optimistic assessment of your case, over the term of our relationship I will become increasingly pessimistic with you about your chances. I will do this because, by then, I will become tired of you and your case. I will want you to become more flexible in negotiations so that I can reach agreement with your spouse and your spouse's lawyer. By then I will have spent enough time on your case to justify keeping all of the retainer. And I will be afraid that I may never see any more money, so I will press you to reach agreement with your spouse.
Also, as our relationship continues, I will be increasingly harder to reach. I may fail to return your phone calls, or I may call you back but be evasive about giving you useful information.
Often an agreement will happen because you and your spouse meet over the kitchen table or on the phone and work it out. This agreement may be remarkably similar to what the two of you could have agreed had you been willing to cooperate with each other at the beginning or through mediation. But you won't think about that by then, because to do so would be to admit to yourself that you've wasted several thousand dollars of legal fees. Even though I told you at the outset not to talk to your spouse, I will then be secretly glad that you did and will work to help your agreement succeed (if I can avoid spending too much time on it).
I have learned that most of my business comes by referral from other professionals. So it's more important to me that referral sources feel good about me than my clients feel good about me. I devote lots of attention to my relationships with judges, other lawyers, and other professionals. On the other hand, I have over the years become quite comfortable with unhappy clients. The bar association knows, as I do, that clients of divorce lawyers are often unhappy. I know that the bar association to accustomed to receiving these complaints and taking them with several grains of salt. So it doesn't worry me much that you might complain about me.
Like most businessmen, I am concerned about the future of my profession. Our legal system really does work extremely well…except in the area of domestic law (my specialty). Statistics clearly show that our court system in not a good place to resolve the differences needed in order for married couples to obtain their divorce. I know that if I were getting divorced, I would do everything in my power to avoid lawyers and our court system entirely. Divorce stinks under any circumstances. But the sad reality is (and I've known this for years, but I'm just beginning to face it) that our legal system is simply not equipped to deal with the problems that divorcing couples have to resolve in a reasonable, fair and equitable manner. So here I am, working in an area of the law that I don't sincerely believe in. And I'm stuck here. I've been a practicing divorce attorney for over 20 years. How can I change now after I've spent so much time developing and building a practice that is so very lucrative? You think you've got problems?
While I may be earning a lot of money being a divorce attorney, I know that my future income is going to be significantly reduced because of the growth of mediation. I'm thankful everyday that our Great State of Maryland is so far behind the times when it comes to changing the status quo. If I practiced in Virginia, or Missouri or California, the size of my practice would be reduced substantially already. And there are 15 or 20 states that are also making significant changes in divorce law. Mediation is growing faster every day. The reality is that mediation is a much more reasonable way to resolve the issues needed in order to get divorced than our legal system can provide. The results are more equitable and the process is infinitely more humane. And more people are turning to mediation all the time. Probably within the next five years or so, more than half of my potential clients will use mediation, rather than use lawyers like me. I know I would.
There's no such thing as an amicable divorce. But as much as you and your spouse hate each other now, the reality is that you and you spouse will have an ongoing relationship in the future…parties, weddings, graduations, funerals, mutual friends, etc. If you're smart, you'll take all of this into consideration when deciding on how to get divorced. My livelihood depends on the degree of animosity you have for each other. And the amount of your bank accounts. From my perspective, stay as angry at each other as you possibly can. If you do, you'll stay with me.
I like you, and I'm a caring professional who wants to do a good job for you. I've learned over the years not to trust you though. I wish I could trust you, but I've been burned too many times by clients just like you. So I'm going to keep my guard up.
I'm going to try to do the best job I can for you, knowing very well that if I were advising you from my heart and not my pocketbook, I would suggest that you find the best divorce mediator in the area and work out your problems in a sensible, reasonable and cooperative manner. Trust me. You'll be much happier with the results, you'll preserve a much more reasonable relationship with your ex-spouse, your children won't become victims of your mistakes, and you'll save many thousands of dollars. Sounds like a “no brainner” to me.
But as long as you're here and you know the way it works, let's get started.
Your Divorce Lawyer