Posts by htsyl

Child Custody – Malpractice or Expensive Appeal?

By htsyl, 25 May, 2010, No Comment

The most stressful legal dispute you can find yourself in is a divorce or family law matter involving custody of and/or visitation with your children. If you should find yourself in the unfortunate situation of having an attorney who is unprepared or inattentive to your case, or a judge who just cannot seem to comprehend the concept of “best interest of the child,” the outcome can be unthinkable. Losing custody or visitation with your kids because your lawyer “screwed up” seems unimaginable, but it happens.

What do you do? What can you do? If you remember back to previous discussions here, you know that claims of legal malpractice are based on two important things…that the outcome would have been different if your attorney had not made the “mistake” AND that you have measurable monetary damages. Therein lies the problem in suing an attorney for legal malpractice in a custody matter. What are the financial damages? Now I understand that you cannot put a “price” on your children’s custody, and that’s the problem. The only legal recourse in these situations may be an appeal, and then, if the appellate court sees that there were serious legal mistakes or oversights in your case, you may get a new hearing back in family court. And then, you might be able to sue your original attorney for all the attorney fees and costs that you incurred because of their incompetence, but that is a long, expensive and extremely stressful road to take.

The best protection against a bad outcome in a child custody matter is the same as with your medical care. If you feel like something is “not right,” get a second opinion. You do need to be careful when doing this, however. Don’t go to another attorney asking them to criticize one of their colleagues. Don’t try to get a “free consultation” for your second opinion. Be up front about your concerns, pay for their opinion, and be completely honest with the attorney about the circumstances. In other words, don’t “forget” to tell the attorney that you actually bring to the table a “little problem” with drugs or alcohol. If things are not “going your way” as a consequence of your own problem, and not because of your attorney or the judge, don’t shop for a second opinion in an attempt to get yourself out of hot water.

Seeking this opinion may cost a bit of money, and based on the outcome of the consultation, you may decide to change your legal representation. This decision, too, can be expensive, depending on how far into the case you are with the first attorney, in fees and time. But, it is about your kids, and once again, don’t check  your common sense at the door…trust your instincts about what is best for you and your children.

And one more thing to remember — your children have two parents and the fight is not about you — it’s about what is best for your kids.

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Settlement & Mediation – Are You On Drugs?

By htsyl, 29 April, 2010, No Comment

We have talked before about how settlement conferences or mediations work and what to be aware of (Settlement-Mediation-Arbitration and Managing Your Money). One of the concerns is whether or not you are physically up to sitting in a conference room for up to an entire day. The reason that you are in a lawsuit is because you were injured in an accident (or possibly because of medical malpractice). You may be taking narcotic medications on a regular basis to manage your pain. It is even possible, sad as it may seem, that you have become addicted to narcotic pain medications as a result of your injuries. If this is the case, and you are aware that you have a problem, you need to get help, and the treatment for your addiction may add to your monetary damages in the underlying case. But, I digress.

My point here is that your attorney may ask you to NOT take any pain medication on the day of your mediation. Your attorney will explain that you need to have a “clear head” and that the mediator will ask you if you are taking any medications or are under the influence of any substance or being coerced in any way. However, this demand for you to stay “off your meds” may have dire consequences for you. A day of mediation is exhausting, mentally and physically, for someone in the best of health. If your pain is not managed, you will be less able to think clearly, not more. As the day wears on, and you get more and more uncomfortable, you will be more likely to give in to an inadequate offer of settlement. You will be more easily “convinced” by your attorney (whose possible motives we have already questioned) to accept an inadequate settlement.

In my opinion, you should not give in to a demand that you don’t take pain meds unless you really believe you will be okay without them. If you cannot sit an entire day, or more than an hour at a time, you need to tell your attorney that you need to have a 15-minute break every hour, that you absolutely cannot go more than half a day at a time, or whatever limitations you need in order to get the job done. If you know that you function perfectly well while on your meds (and your doctor agrees) then you should take your meds and be honest about it. And if you need another dose after the requisite period of time, take it. You are not required to “suffer in silence” to get the case settled. Stand up for yourself and let your attorney know what your needs are. Don’t be bullied…don’t check your common sense at the door.

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Adding Insult to Injury – Paying the Other Guy’s Legal Fees

By htsyl, 3 April, 2010, 1 Comment

Here is a situation that nobody wants to find themselves in. Your lawyer takes your case to trial and at the end, you are ordered by the Court to pay the attorney fees for the opposing side…you don’t have to pay just your own lawyer, but you have to pay the other side’s lawyer, too! If your lawyer doesn’t tell you that this is one of the risks of taking a case all the way to trial in a courtroom, then they have not been completely forthcoming with you. No attorney is allowed to guarantee results…so just because they tell you that you “have a good case” doesn’t mean you will prevail in the end. The outcome will depend on many factors, not the least of which is how competent and prepared your attorney is.

Consider this situation. Mr. Jones retains Attorney Y to represent him in a real estate matter. The facts are relatively complex and it appears that the matter cannot be resolved without a trial. Attorney Y is charging Mr. Jones by the hour to work on the case. Mr. Jones forks over $25-30,000 in fees to his lawyer. The issue ends up at trial and from the outset, Mr. Jones can see that his attorney is not prepared. Because of the lack of preparation and the strength of the opposition’s case in court, Mr. Jones loses. This is bad enough. He has paid out thousands of dollars to his attorney and has lost money in the real estate deal. After the trial is over, the opposing side makes a motion to the court for attorney fees, and the judge orders Mr. Jones to pay the winner’s attorney fees, nearly $50,000.00! Mr. Jones then consults an attorney to sue Attorney Y for legal malpractice, which could be a very tricky business.

This can happen even if you WIN! How? In a recent case, which will be heard by the United States Supreme Court in Fall 2010, the father of a Marine who died in Ira  sued the Westboro Baptist Church for emotional distress. Members of this controversial Kansas “church” had picketed the son’s military funeral with antigay messages of hate. The father sued and won a judgment against Westboro Baptist Church for $5 million…good news, right? The church appealed, and the appeals court ordered the father to pay $16,000 in attorney fees to the church, even though the matter is on appeal and has been accepted by the Supreme Court for hearing. Read the whole story here.

Moral of this story? Getting involved in a legal dispute is fraught with all kinds of risk — emotional and monetary. Your lawyer should warn you of all of the pros and cons of proceeding. But, buyer beware, your lawyer is not assuming the risk — you are.

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