Unbundling Your Divorce: How to find a lawyer to help you help yourself

Paperback, Revised Edition (2006), Price $14.95

This book will save you thousands of dollars on attorney fees.

You don’t need a lawyer for every aspect of your divorce. Many parts of the legal process are common sense, and can be navigated by a non-lawyer. Even some more complex matters can be done on your own if you have quality coaching from a good lawyer.

This book will show you how to decide which parts of your case you can handle yourself, where you need coaching, and how to find a lawyer who will coach you on those, or work with you to handle only those parts of you case that you can’t effectively do yourself. It’s a win/win. You don’t pay for legal work you don’t need, and you have a quality attorney for only those parts of the case where you really need one.

This book will walk you through the analysis to determine whether you are a good candidate for self-representation, how to avoid the most common mistakes divorce litigants make when the go to court without lawyers, and how to find a lawyer to help you with procedures, tricky areas, or other aspects where you need assistance.
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Why I wrote Unbundling Your Divorce: How to find a lawyer to help you help yourself

I first heard the word “unbundling” in November 1995, and my life changed forever. I had been vaguely (and occasionally stridently) unhappy with the way our family law system works for a number of years. Attending a meeting of the task force called “Family Court 2000,” It was there that I was first introduced to the concept that instead of taking over a whole case, lawyers could partner with their clients, coaching and assisting them to do part of their case themselves. Trained in the traditional approach to law, it had never occurred to me. I can still feel the excitement as I considered the possibilities of this radical new concept.

I immediately set out to learn as much about it as I could, only to find that no one knew very much at all. Woody Mosten, who coined the term, had written a few articles. Otherwise, there was nothing out there. My disquiet at the lack of material quickly faded as I realized I had stumbled onto something entirely new, and that I could have a part in forming what it was to become.

I set out to study the concept from every angle, to figure out how it should work to provide the greatest benefit to litigants and the lawyers who would assist them, how to ensure quality standards, where the pitfalls were, and how to make the practice safe and effective.

The need was all around me, since well over half of the litigants in most family courts in California at that time appeared without lawyers.

Since no one had written much about it, and I’d just published my first book [link to DFH], I naturally assumed that I should write one, teaching lawyers how to offer limited legal assistance to litigants who wanted to represent themselves. I started to methodically gather information for a book targeting lawyers.

Then, in April 1997, I realized I was going at it from the wrong direction. The book I was to write should be for the people themselves, not for lawyers. It was the people who were flailing in an unfamiliar and frightening legal system who needed to know the options available to them for limited assistance from attorneys, as well as what problems they might anticipate if they decided to take that route. Once I shifted the focus of the book from lawyers to litigants, and decided to write it in plain, understandable English that any lay person could follow, the first draft virtually “wrote itself” in a little over two weeks. It was published in October 1997 under the title A Client’s Guide to Limited Legal Services.

At the time, it was totally revolutionary. I then spent the next 9 years teaching, tweaking, advocating, and lobbying to have limited scope representation accepted. In July 2001, it was unanimously adopted by the Board of Governors of the State Bar of California as official policy. I spent several years traveling all over California training lawyers how to help litigants represent themselves in court.

By 2005, I realized that events had overtaken the book. It was no longer revolutionary. Many developments of the previous eight years were not reflected in the text. New techniques had been created, and institutional acceptance was spreading from California to other states. As a result, I decided to substantially expand and revise it. The result is Unbundling Your Divorce.

Unbundling Your Divorce: How to find a lawyer to help you help yourself, Introduction

A growing phenomenon is changing the face of family law and altering forever the way people approach their divorces. More specifically, it is altering the manner in which lawyers help people with their legal problems. Under the old paradigm, each party to a divorce hired a lawyer (if they could afford one) to han­dle all aspects of the case, giving the lawyer full responsibility for and power over strategy and tactics. Lawyers call this full service representation. If you couldn’t afford full service, and legal aid was unavailable, you were on your own and out of luck. There was no middle ground. That practice is now being supplemented by innovative methods of delivering legal services, where lawyers provide coaching, advice, drafting, and other forms of legal assis­tance to help you represent yourself. This means that a lawyer can be retained for only part of a case, or for specific tasks, or even as a coach, showing you how to effectively represent yourself in court.

The reasons for these changes are complex. First and foremost, the domestic relations court system is breaking down. As presently configured and funded, the courts are simply unequipped to handle the deluge of divorce cases and related family law matters presented to them. Simultaneously, as part of a growing self help movement, sometimes called the “Home Depot mentality,” individuals are demanding greater control over their own life choices. They want to be given the tools to do it themselves. This includes not only taking control back from lawyers, but even from the courts themselves. Much is written about the so called “pro se crisis” across the country, where large numbers of family law litigants choose to represent themselves in family court. Sometimes as many as 75 percent of domestic relations cases involve at least one party who doesn’t have a lawyer. These choices are frequently driven by financial necessity, as more and more people can’t afford to hire lawyers to represent them in the traditional way. However, two situations are becoming increasingly common: Many people can afford some legal assistance from a lawyer, even if they can’t afford traditional full service. They elect to use a lawyer for the more complex parts of the case, while they represent themselves on the simpler parts. This has the effect of stretching their litigation dollar. In addition, in more and more cases, people who can afford lawyers simply insist on doing it themselves. What they want is for lawyers to tell them how. That’s where limited scope representation, coaching and consulting come in.

Both lawyers and litigants have had to reexamine and rede­fine the traditional attorney-client relationship as it applies to limited scope representation. In some states, the situation is complicated by the fact that it is being done under the disapproving eye of the state bar association and other regulatory agencies; in a growing number of cases, however, it has not only the official endorsement of the regulatory agencies and courts, but also their enthusiastic support.

This guide is intended to be a simple and practical handbook to educate you on limited scope representation, so that you can make better decisions about entering into an agreement for limited legal services and defining its parameters. It contains sections on how to determine whether you are a good candidate for lim­ited legal services, as well as detailed suggestions on how to structure the relationship with your consulting attorney. Most importantly, there are several appendices with checklists and questionnaires to help you evaluate your own case and abilities. Take the time to complete these questionnaires fully and in writing, as they are the key to making good decisions about limiting the scope of your lawyer’s assistance. You will find them most helpful if you complete them after reading the text.

No one wants to be forced to obtain and pay for services they don’t want, especially when dealing with that most intimate of legal issues: their family. What follows is designed to help you make the best possible decision while alerting you to common pitfalls.

Alaska, California, Colorado, Florida, Maine, Nevada, New Mexico, Washington and Wyoming and others have all adopted court rules designed to facilitate unbundling. More are joining them all the time. Iowa has just revised its rules of evidence and Code of Judicial Conduct to encourage unbundling. To find out what is happening in your state, go to www.unbundledlaw.org.

I am going to be among the first to say that the family law system in this country does not work. It is beyond the scope of this book to explain all of the reasons why. Unsatisfactory as it is, however, it is all we have right now. As long as a divorce isn’t valid or a child support or restraining order cannot be obtained without a piece of paper signed by a judge, you will have to deal with the legal system in some way. This guide is designed to help you obtain that piece of paper with as little red tape and expense as possible while we all wait for something better to be devised. The good news is that some of the best minds in the legal community are hard at work brainstorming not only ways to improve the current system, but developing whole new ways of dealing with the legal problems of families.

If you are among those family law litigants who insist on having greater control over the process, increasing the scope of your own involvement and limiting that of your lawyer, keep reading. This book is for you. You will find some useful suggestions in the pages which follow. Remember, however, that taking responsibility means precisely that: Taking responsibility. Be sure that you are qualified to perform the tasks you undertake, and then do so. If you want to be the one who makes the decisions about your divorce, you must be prepared to live with the consequences of those decisions, even if they turn out differently from what you hoped or expected.

Many lawyers are willing to help you handle some or all aspects of your own divorce. They do it because they believe it is right and that the system is unnecessarily complicated. Does this mean that even with an excellent “coach” you are going to know as much about family law as your lawyer does? Of course not.

Even with the best of coaching, your lawyer can’t teach you everything she learned in law school and many years of practice. However, if you are willing to educate yourself on the law and the procedures as they apply to your case, and make careful decisions about how much of the legal work you can do yourself and what should be referred to a specialist, you may be happier with the outcome than you would be with the traditional approach. It does not, however, guarantee that you are going to get everything you want, any more than you would have under the traditional full service system.

Therefore, be honest with yourself and your consulting law­yer about your abilities and instructions, educate yourself where necessary, and refer those tasks or issues which you are not qualified to handle to your attorney. The point is to work as a team with your attorney to obtain the best possible result.

Table of Contents

Some samples...

Cont...

Introduction
1
Chapter 1. What Is This All About, Anyway
7
Why family law?
7
A word on rights and responsibilities
11
Get informed
13
Definitions
15
Full service representation
15
Unbundling
17
Limited scope representation
18
Consulting Attorneys
19
Coaching
20
The importance of consistency
21
Paralegals and document preparers
22
What about other non-professionals?
23
How do you decide?
24
Chapter 2. Are You a Good Candidate for Self-representation?
25
Emotional considerations
25
Can you handle the paperwork
27
Verbal or physical abuse
28
Is your spouse a crook
29
Are you comfortable with financial issues
30
Are you comfortable making decisions?
31
Are you good with details and follow-through
33
Get real about the time commitment
33
What about speaking in public?
34
Conclusion
35
Chapter 3. Where to Start Limiting Legal Representation
37
What kind of case do you have
37
Support
37
House
39
Pensions
39
Quicksand issues
40
Custody
41
Unbundling by issue
41
Unbundling by task
43
Drafting and document assistance
43
Discovery
46
Negotiation
49
Legal Research
50
Court Appearances
51
Setting priorities and making choices
53
Chapter 4. How to Find an Attorney Who Will Work With You
53
State Bar pressure
55
Malpractice insurance carriers
57
Finding user-friendly attorneys
59
Chapter 5. How to Clarify Roles and Responsibilities . . .
61
Clear instructions
61
Put It in Writing
62
Keep your attorney informed
63
A Word about Fairness
64
Chapter 6. How to Screw Up Your Case in Seven Easy Lessons
67
Perry Mason Wannabes
67
Whine
68
Expect the court to make up for your lack of experience
69
Turn in sloppy paperwork
69
Argue with your spouse
71
Knowingly file a false affidavit
71
Argue with the judge
72
Chapter 7. Attorney-Client Relations
73
Communicate fully and frequently
73
Ask questions
74
Don't wait until the last minute
74
Pay your attorney as you go
75
Ending the relationship
76
Chapter 8. Getting Organized
77
Files
77
Other tips
81
Public records and identity theft
81
A word about discretion
82
Chapter 9. Epilogue
85
Appendices
87
Appendix 1. Issues Presented by My Case
89
Appendix 2. Checklist for Limited Legal Services
93
Appendix 3. Tasks to be Apportioned
97
Appendix 4. Questions to Ask Your Lawyer
101
Appendix 5. Questions to Ask a Paralegal
103
Appendix 6. Guidelines for Retainer Letters
105
Appendix 7. Self Test
109
Appendix 8. My Goals for My Divorce
115
Index
117
About the Author
119

Chapter 2: Are You A Good Candidate For Self-Representation?

HOW CAN YOU TELL?

I will later discuss in detail the myriad ways in which legal services can be limited, either by the specific task to be performed or the subject matter area. However, before you can get to the question of which unbundling structure will work best for you and your case, you need to address a much more important threshold question: Are you a good candidate for limited legal services? There are some very good reasons why you might not be.

EMOTIONAL CONSIDERATIONS

Are you able to detach yourself enough from the obvious emotional content of your divorce in order to make clear decisions about your property, support or children? This is the first threshold issue, and Appendix 7, starting at page 109, contains a detailed self test questionnaire to help you analyze it.

One of the most important functions of lawyers or mediators in divorce is to superimpose an independent, objective and emotionally uninvolved view of the case. Now, let’s not kid ourselves: Of course you can’t be totally uninvolved. It’s your divorce, it is your family, and these are your kids. But if you can’t at least have enough self awareness to attempt to separate a logical or financial decision from its emotional content, you simply will not be a good candidate for self representation. You will be unable to see when it is preferable to concede an issue you can’t win and concentrate your efforts on one you can. You may go to war and draw a line in the sand over a matter of little overall importance. If you or your spouse has defined a minor issue as the benchmark of the cosmic win/lose dynamic, investing it with lots of emotional baggage, someone has to be around to point that out to you. Otherwise, you’ll spend a huge amount of time and effort trying to win something stupid, probably make a fool of yourself in the process, and lose credibility with the judge. You must have someone whom you trust, who is knowledgeable about your case, and who can provide an independent perspective and reality check.

The fact is that if it makes you nuts to have to deal with your spouse over what time the kids are due back from soccer practice, you may not be emotionally equipped to negotiate the bigger issues with him. Some couples have such a toxic relationship that they simply can’t tolerate having to deal with each other at all. You aren’t ahead if the money you saved on legal fees is paid to your therapist instead, or if you give away the store because it’s easier than having to face one more unpleasant confrontation.

Similarly, if you look to the litigation process as an opportunity to “get even” for past wrongs, you will not be effective. You will lack the necessary emotional detachment, and your private agenda will bleed through into every aspect of the proceeding. Also, people who start out feeling wronged tend to overcompen­sate in their demands to make up for what they thought they “lost.” As a result, they tend to fight about things they can’t win and should concede. All of this creates a significant emotional and financial drain.

Ideally, you and your spouse both agree that it is in the best interests of all concerned, including the kids, to detach from the emotional content as much as possible. You may not always succeed, but it makes both of you better candidates for unbundling.

CAN YOU HANDLE THE PAPERWORK?

Let’s face it: Legal paperwork is technical and confusing. Even lawyers and paralegals sometimes struggle with it. If you re­ally cannot do it (and we are not all comfortable with paperwork) be honest and acknowledge it. You may be able to find a paralegal to draft it for you or you may prefer to leave the legal drafting on the list of your attorney’s responsibilities. Representing yourself involves not only court forms, complex financial disclosures and expense statements, but business letters, subpoenas and court orders. Many paralegals are simply not qualified to draft these. In addition, you may have to prepare written court exhibits to prove your side of the case. You won’t win at trial if your “evidence” is a shopping bag full of papers which you rifle through between questions.

Appendix 7: Self Test

BE HONEST. Do the following self-test in writing. Don’t just read it and answer it mentally. You won’t be as thorough in your analysis if you don’t force yourself to put pen to paper. You also won’t be as effective in revising it as needed if you don’t have a written record to refer to.

GOALS FOR LIMITING LEGAL SERVICES:

What are my goals in my divorce? [See Appendix 8 for more information on this.]

  • Why do I want to limit my attorney’s involvement? Save money Retain more control over the process?
  • Why? Retain more control over my spouse? [Lose 5 points if your answer is yes]
  • Other reasons? List all perceived advantages.
  • What risks do I see if I represent myself in whole or in part? List all perceived disadvantages.

MY STRENGTHS AND WEAKNESSES

What am I good at? [Be brutally honest.] Paperwork, Writing, Public speaking, Computers, Investigation and information gathering, Research, either at the library or on the internet, Analysis of documents, Financial planning and analysis, Decision making, Am I disciplined in my work habits? Organized?

Other skills I have which will assist me:

  • Attention to detail
  • Persistence
  • Follow through
  • Can I consistently meet deadlines?
  • Can I understand and use support guidelines
  • Do computers intimidate me?

Which of the above do I really hate doing [Be brutally hon­est here; if you really hate doing something, you won’t like it any better if you are doing it as part of your divorce. Instead, you’ll hate it even more and do a lousy job.]

  • If I’m not good at it, can I find someone else to teach me how to do it, supervise or check my work?
  • If I’m not good at it, can I find someone else who is and hire them to do that part?
  • Which tasks would be better delegated to someone with greater expertise?
  • Who would that be?
  • Which specific tasks am I going to delegate or seek help with? Write them here, and write the name or designa­tion of the person who will help you next to each one (i.e., accountant, attorney, etc.)

TIME COMMITMENT:

  • Do I have the time to do it properly? Will my other responsibilities suffer?
  • Is there a way to compensate for the time loss by delegating some of my other responsibilities temporarily?

EMOTIONAL CONSEQUENCES:

  • Can I handle it emotionally, or am I too close to the situ­ation to make good decisions?
  • Am I motivated by a desire to keep up the fight?
  • Am I able to stand firm and not give up too much simply to have it over with?
  • Am I trying to get even for things my spouse did to me in the past?
  • Can I separate my emotions from decisions involving money and property?
  • Can I separate money and property from decisions in­volving the kids?

Chapter 6: How to Screw Up Your Case in Seven Easy Lessons

Most judges loathe self-represented litigants. Sometimes this is legitimate. Pro se litigants make the judge’s job harder because they are often unprepared, usually don’t know the rules or the law, ask for things the judge can’t give them, and don’t know what information is relevant to the court. This means the case takes more of the judge’s time than one with two knowledgeable lawyers.

The other reason some judges hate pro se litigants, however, is that there are certain patterns which individuals who represent themselves in court tend to repeat over and over and over again, most of which make cases much more difficult for the judge.

If you really want to mess up your case, try one of the following:

PERRY MASON WANNABES

Say you have always wished you had gone to law school. Perhaps you were a Perry Mason or Divorce Court junkie when you were a kid, you are currently hooked on Law & Order or Court TV, and the real reason you want to limit legal services and

represent yourself is so that you can live out your life-long fantasy and play lawyer. DON’T. This isn’t about giving free rein to your ego. If you do, you are certain to be unsuccessful in court and em­barrassed for making a fool of yourself.

Remember, you are a litigant who is representing himself. Don’t try to be an attorney, or they will make mincemeat of you. Besides, I can assure you that after you have done it a few times, the joys of arguing in court are highly overrated.

WHINE

Nothing will brand you more quickly as a difficult litigant and make the judge stop listening than if you want to use your “day in court” to rehash your litany of how you were wronged, which proves that your spouse is an unregenerate boil on the be­hind of society. If you are going to handle your own court ap­pearances, find out in advance what is legally relevant and what is not, and limit yourself to the former. It may feel great to complain to a captive audience about the miserable failings of your spouse, but if you do, you will lose not only the audience but, most likely, your case.
Also, if you tick off one judge by your behavior, you can’t just switch judges and start over with someone new. You may be burning serious bridges. And if you do get transferred to another judge, don’t assume there isn’t carry over. The courthouse is a workplace much as any other. Once a case or a litigant is labeled a “problem,” that may well carry from court to court via the grapevine. You may well find the next judge even less sympathetic than the first.

One of the best uses you can make of your consulting attor­ney is as a sounding board, letting her coach you as to what is or is not useful for the judge to hear.

Also, do what the lawyers do. Watch the judge and look for signals. If the judge is losing patience with you or telling you to change the subject, change the subject. You will never score points with the judge by disregarding her instructions.

EXPECT THE COURTS TO MAKE UP FOR YOUR LACK OF EXPERIENCE

Some courts will loosen the rules a little for pro se litigants (to the disgust of opposing attorneys, I might add). However, don’t expect much. Judges are sworn to be even handed and fair to both sides. They may intervene if your opposing counsel is run­ning you ragged with esoterica, but they won’t (read: can’t) do your work for you, and you should not expect it. Most of them will make a point of being absolutely even handed and won’t cut you any slack whatsoever. Therefore, do your homework, learn the procedures, come to court well prepared, and expect that you will be held to the standard of any other litigant, represented or not.

TURN IN SLOPPY OR ILLEGIBLE PAPERWORK OR DON’T SERVE THE OPPOSING COUNSEL OR PARTY WITH A COPY

This is guaranteed to make a judge angry. I have already said that legal drafting is tricky. It needs to be clear and legible, and the opposing side (whether represented or not) must be provided with a copy of whatever you file with the court.