family law attorney santa clara

family law attorney santa clara
Introduction

"Collaborative divorce" is the new buzzword in the field of family practice. His supporters more enthusiastic and less costly settlements, greater client satisfaction, fewer claims and less stress in the practice of law, than they can achieve through a conventional approach to family law disputes. How realistic are these claims? What are the down sides of "collaborative divorce"? Is the concept of "collaborative divorce" present ethical problems and possible misconduct by minefields for the unwary practitioner?

Lawyers involved in the "collaborative divorce" movement methods borrowed from established alternative dispute resolution procedures to resolve family disputes without trial. However, in contrast to longer accepted dispute resolution procedures, in cooperation Divorce "The lawyers and their clients agree that they are not in formal discovery, the information voluntarily, and the case without court intervention of any kind, and will assume a duty to inform the public prosecutor for the other party of errors they note in the opposing attorney legal analysis or understanding of the facts. If they are unable to settle the case, both lawyers, must be approved by the representation of their respective customers and the estranged spouse must have a new advisory.

Good lawyers Regular practice cooperative

Even enthusiastic supporters of the "collaborative divorce" to admit that the concept for the settlement of disputes rather than cases, they hardly novel. The situation, family practitioners have always their efforts and creativity to reach an agreement rather than duking it in court. There is nothing new that all lawsuits are expensive - sometimes prohibitively expensive - and that most settlements are satisfactory negotiations between the position, qualified advice and not as a court, the resolution of contentious issues. How does the concept of "collaborative divorce" differ from what experienced practitioners are doing, which is a matter of course?

With kind permission. The commitment of the lawyers and parties treat each other politely, is not new. Capable lawyers always endeavored to work cooperatively with opposing attorneys to identify and assets, planning and deadlines, and also the resolution of the case. They respect the legitimate positions of the other party and its customers for its realistic and respectful. They are willing and able to compromise, and they are creative in the production of acceptable resolutions of disputed issues. "Collaborative divorce" supporters that their intimate process is unique because lawyers agree that they will not "threaten, insult, intimidate or demonize" the other participants in the divorce process. Good lawyers do not do now. The American Academy of Matrimonial Lawyers, which historically has a model of good practice at national level, has announced "Bounds of Advocacy", which has a high standard of professional courtesy and cooperation.

Emotional costs. "Collaborative divorce" its proponents say, is for the parties who do not want war and do not want "to hate each other for the rest of their lives." This description fits the vast majority of families, customers, including most of those whose cases end up in court. Customers almost always the emotional cost of the opponents of the procedure, and about the impact of measures on the divorce of their children and other family members. Suggests that people who really will give the protective measures of judicial supervision is to do a great disservice to most of our customers.

Costs. "Collaborative divorce" supporters want to recover the costs of the proceedings by streamlining the discovery process. This is not a new idea. Good lawyers always sought to formal discovery to a minimum to save costs for fees prior to values, and cooperation in other ways to reduce costs. Many experienced practitioners routinely use both sides agreed on the short form of interrogatories, four-way meetings, joint telephone or personal conferences with experts and other cooperative agreements.

As the above analysis shows, the goals for collaborative divorce, "lawyers do not differ in degree or in kind from the target, the vast majority of the family bar. Most lawyers try a cooperative approach first. Most Lawyers agree - and most of their customers agree - that the resolution of the issues of settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and not to the courts.

The limits of cooperation

Despite the joint efforts of the position to advise, as we all know that not all cases settle, and those who settle sometimes not easy to regulate. All of us have the frustration of the last minute, a court house steps Agreement, upon completion of work and stress of the examination. Why is it that some cases are not settled until the last minute, and sometimes not at all settle?

Legal issues unresolved. Legitimate reasons, litigation is not always obvious at the beginning of the case. Appellate Body, a lot of work with questions of existence, - or at least the extent - not surface until significant discovery and negotiations. Where the law is not settled or advice really do not have the appropriate interpretation and application of the law to the facts of the case, it is not only reasonable but necessary to ask the judge to intervene. Collaborative Consulting is the complexity and costs of litigation by submitting disputed matters, facts, wherever possible, to agree in advance to the admission of exhibits in the fall of the delaying tactics and other behavior that is both practical and considerate . Lawyers can undertake the procedure without hostility and advising their customers to be courteous to the other side. But the court has the last word on the interpretation and application of the law.

Reality Testing. All the customers say they want a "fair" result, and many of them really mean it. But they may have a very self-critical absorbed definition of "fair." Many years ago Leonard Loeb, whose wisdom and example have a large influence on the development of a civilized standard of practice for family lawyers, pointed out an important truth: "Sometimes the most difficult negotiation you have to engage in is with your own customers." A customer who simply can not see the broader picture of the Council, despite all efforts may require that the reality of therapy, a temporary hearing or a pretrial with the judge or a deadline to respond to formal discovery in order to be able to from an unreasonable attitude to settlement negotiations can.

Scheduling orders. We all have left behind spouses, not everything possible to avoid or at least delay the divorce, or a party to deal with shops or other family problems and can not participate in the handling of the work and decision making - the implication in the divorce process . If a party would prefer that the marriage continues or if the measure is not a priority, the court may need to make progress in the case by issuing a policy and planning deadlines. Counsel can cooperate by providing appropriate and polite in the definition of the original deadlines and in agreeing to extensions where necessary. The process is not required - and usually not - antagonistic.

Financial Disclosure. A client may intentionally or accidentally, not on the disclosure of assets, without the strict observance of financial detail that formal discovery entails. Surely we have all had the experience to find forgotten assets, if a client is producing the records necessary to make a backup copy of his interview answers. In other cases, the client and / or counseling need the assurance of due diligence in discovery so that it comfortably with a proposed solution, particularly if the estate is complex or the assets are substantial.

Stability. Then there is the personal factor: the divorce a major life crisis for most of our customers, and we see them with their weakest and most needy. The beginning of a divorce action is often accompanied by anxiety, guilt, a threat, and possibly a family into chaos. If a party hostility towards the other is so overreaching that he or she is unable to rationally and politely, interim court orders may include the only way to ensure a level of stability which allows for joint discussion on the long-term problems , the case.

In each of the above situations, the legal system and finality, and often is the ultimate stage for the negotiation procedures regulating the matter. Judicial processes, and not as an obstacle to the settlement, which is often easier.

The effectiveness of a "Collaborative Divorce" approach

You collaborative divorce "techniques provide an effective response to the above limitations? Unfortunately, they do not.

Reality Testing. One customer, whose sense of "fair" is out of kilter that the other party and the lawyers will defeat the collaborative process, and both sides need the cost and delay launch of new advice. Reality test to a temporary or a pretrial hearing with the judge is not an option in the "collaborative divorce." The lawyer representing a difficult client must either advocate for the customer is unreasonable or the provision of a public position adverse to the client. An attorney can not ethically make these decisions, the first is probably at least dubious, and the second against the claim that we will diligently for our customers. Proponents of "collaborative divorce" is not a solution to this ethical dilemma.

Delay, cost, and New Counsel. A customer who wants to stall progress in a "cooperative divorce" can be for an indefinite period until the court threatened to dismiss the suit and the party who must go, then keep the new Council to request a pretrial. Also, both sides is the cost and delay of a new lawyer up to speed. The lawyers who know the facts and have relationships with their customers can not continue to be involved. How can this outcome will benefit all?

Diligence. Lack of diligence in discovering the power of attorney to a malpractice claim [see Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W. 2d 118 (1985)], may constitute a breach of the ethical requirements of the careful presentation, and the customer can reservations about signing on the dotted line. In complex cases and cases where there is a difference in the spouses' respective familiarity with or involvement in financial matters, the security of formal discovery is not available to help resolve "collaborative divorce."

Timely and effective intervention Court. If it is sufficient that experienced antagonism advice are unable to negotiate an agreement, or if one party refuses to comply with an agreement, court intervention is required. In the context of "collaborative divorce" approach, both lawyers, just about time that a lawyer who knows the case is most effective.

Medical liability issues

In collaboration divorce, the parties and their attorneys a single contract, at least probably create obligations of the other lawyer to lawyer, as well as for both customers. The common law contract, each lawyer familiar with both parties with conflicting advice and the creation of a basis for the contract claims, in which a lawyer is not in common practice. Moreover, the Divorce Cooperation Treaty assumed, even if not explicitly, that every client is completely on his / her legal obligation to maintain client confidentiality and not to the other party or attorney of his legal, factual, or strategic mistakes. However, the contractual obligations for "collaborative divorce" to remove and replace these obligations with their duty to disclose and inform, at least theoretically feasible, either as contract claims or negligence (malpractice) claims.

Lawyers assume that A and B and their clients have agreed to a "collaborative divorce." A lawyer is a mistake, that the disadvantages of client A and client B benefits, if B is not a lawyer (or negligently) in order to rectify the error, can Client - A lawyer Sue B for abuse? If Attorney B corrects the mistake to his own disadvantage of the client, client B can sue Attorney B for abuse? If the existence of a "collaborative divorce" is a defense contract to wrongdoing? Does it increase exposure of wrongdoing by any party to sue two lawyers?

If unknown, A Lawyer, A client is not a complete disclosure and financial disadvantages Client B, can Client B sue A lawyer for abuse? Can Client B sue Attorney B is not to take steps to bridge the gap? Can a customer complain or both of the attorneys for abuse if the disclosure was inadvertent and were by standard formal discovery, and if the impact of the error is that the verdict is released and processed with the new Council with a customer is liable for the Client B additional costs?

If a lawyer does not spot a theme that would likely be resolved client A favor, Attorney B has the duty to question? If Attorney B is not to do so, a customer can sue Attorney B for abuse? If Attorney B, the question arises, can Client B sue Attorney B for abuse?

Have you notified your insurance carrier? How will you pay the infringement litigation and potential judgments against you that your malpractice insurance does not cover?

"Collaborative divorce" is the cost of divorce

"Collaborative divorce" is marketed as a cost-saver for customers, but is it really? We all know that the settlement is cheaper than litigation. The question is not whether "collaborative divorce" is less expensive than the process, but whether it enables the participants less than they would if they employed more conventional settlement. Most lawyers try informal discovery of the first and interrogatories or for document production or depositions only when informal attempts have failed, or if the information provided is suspect. Most lawyers contested trials schedule only after repeated attempts at negotiated settlements. Most lawyers truly believe that better and more creative settlements can be achieved through negotiation and creative design and not by a court-imposed resolution. Virtually no good lawyer chooses litigation as the first and best solution.

In a conventional divorce, the lawyer who has been the case, who knows the customer and the facts, and who understands the interpersonal dynamics of the case, you can use this knowledge to continue, if necessary, litigated to a conclusion. In cooperation divorce "if the negotiations fail, the customers have to return with new guidance and a new lawyer to learn the complexity of the case. If customers have a relatively simple financial situation, they probably can not afford twice. If they have a complex situation, the time and expense necessary to duplicate or new financial analysis and evaluation will probably outrageously high. In some cases, customers save money, though there is no evidence that "collaborative divorce" is less costly or less time than any cooperative settlement approach. In other cases, however, the total cost will skyrocket, and how long it takes to complete the process will be significantly expanded because of the duplication caused by the substitution of advice. And while the "collaborative divorce" proponents suggest that its practitioners are less non-accounts, one can reasonably question whether customers who are forced to change lawyers is fully charged both advise.

Is "Collaborative divorce" is a better process?

The proponents of the "divorce co-operation" to say that customers are motivated to learn, problem-solving strategies, because there is no "legal threats." In some cases, may be true. Experienced lawyers know that many customers, it is just the ability to schedule court dates and deadlines, the impetus for the settlement. Cases often settle only when delay is no longer possible and the time for gamesmanship is. We all had the experience - probably on both sides - the handling of a client or opposing party who stubbornly adheres to the situation until the process is imminent. Customers who work more efficient problem-solving strategies and in most cases, because they understand that they are the best results that way, and a controversial trial date must not be scheduled in order to negotiate a solution. There are no "legal threats" because they are able to resolve their differences without the looming specter of a contested divorce. Moreover, where the bargaining positions of the respective customers are not equal - is financially experienced, or more legally knowledgeable, intimidating or just over - the reality of "what the judges probably do if we go to court", can significantly contribute to a just solution .

"Collaborative divorce" supporters also argue that customers are more satisfied with the results achieved with the collaborative approach. There is nothing new that customers more easily be overcome and more willing to create the conditions for a settlement agreed upon, as one, the court imposed. But what is the evidence that customers are "satisfied" with a common solution, as with a conventional solution achieved through cooperation and negotiation?

"Collaborative divorce" proponents argue that the process offers an opportunity, as a lawyer, the "more positive, more challenging, more rewarding and more fun" than traditional methods. That is simply not the case for those of us who are historically the most creative of our cases, without providing an opportunity to litigate if the negotiations fail, Dodge, or ethical issues or additional exposure misconduct ..

Collaborative Divorce

The lawyers, the spearhead of "collaborative divorce" movement have this idea with the best intentions. Are you looking for in good faith for a more humane and less stress dealing with the storm and stress of marital dissolution. You are right to be frustrated with the waste of time and avoid duplication, the same time in the settlement negotiations and trial preparation. You want a tough time easier for their customers and for themselves.

We can rely on these goals without afoul of ethical rules, increasing exposure to abuse, and the rejection of the use of available resources of the courts according to facilitate negotiated settlements wherever possible. Let's call it "collaborative divorce."

The "cooperative divorce" practitioners would:

Respect all parties and to advise and treat all participants politely.

Respond quickly and in a straight forward way to queries - both formal and informal - for information. (No paper bags full of unsorted documents, receipts, and junk e-mail in response to a request for production of documents to ask if you are an extension of time to explain why and ask for, rather than from the opposing attorney to advise if he or she will hear from you, etc.)

Cooperation with rescheduling requests, requests for extensions, and how as a matter of common courtesy. Everyone needs a break.

Tailor requests to information necessary for each individual case, but rather than sending blanket, shape discovery documents or planning routinely deposits without a specific purpose.

Educate our customers on the other party the rights and perspective, and not only the support of our customers regardless of their merit position or the reality of the case.

Promotion of customers to a wide perspective and examine relationship issues. Help the customer to the questions that can be resolved within the framework of the legal system and a justification for the bad behavior of customers on the basis of the estranged spouses complete lack of redeeming qualities.

Prepare yourself seriously, for the negotiations, the homework that is necessary to conclude the case. Run after-tax cash flow lists and marital balance sheets, together comprehensive education plans, update statements - as the case went to court rather than a negotiating session. Too often, we contribute to delays by unprepared to negotiate.

Keep his word. When a lawyer undertakes to co-operative, information or a draft document by a certain date, he or she is doing or make a free call to explain to an unavoidable delay. If a cooperative lawyer makes a proposal at the hearing, he or she does not infringe on the proposal on the table and retreat to a more favorable position for its customers.

Use the legal system as a resource to settle the case, as appropriate.

Understand the wide variety of alternative dispute resolution, and recommend their use as appropriate.

A civil and polite approach. If litigation is necessary to determine, where possible, together with the admission of exhibits, accommodate the other side of the experts, and for its customers without antagonistic.

Most good lawyers, most of these things, most of the time. But we all make mistakes occasionally. Commit to "cooperative divorce" avoids the problems of "collaborative divorce" and improves the practice of family law.

Thanks to Gary Young, Allan Koritzinsky, Linda Balisle and Margo Melli for their contributions and support of the "collaborative divorce" concept. This article contains general information and is not intended as a substitute for legal advice. This article does not imply any attorney client relationship. This article is for informational purposes only and may not be in your state, please contact an attorney in your area.

Linda Roberson
Shareholders of Balisle & Roberson S.C.
Practicing Family Law in Wisconsin Statewide
http://www.b-rlaw.com