I am often perplexed when I hear a client (or a Lawyer) tell me that they “know” that a Family Court Judge will rule in their favor.  My first question is: To which Judge are you referring?  We have 56 full time Family Court judges in South Carolina, and due to our unique (and inefficient) court administration system, a person in Charleston is just as likely to get a judge from Greenville who is holding court in Charleston as a person in Greenville is likely to get a judge from Charleston who is holding court in Greenville!  Furthermore, judges are not assigned cases that they will see through from beginning to end, as in virtually every other court system in the United States.  In South Carolina however, every time a person goes to family court, they will most likely see a different judge.  Now, if a person does not know who their judge will be, or where their judge will come from,  then how can a person know what a judge will do in any particular case?

Beware the Rambo Divorce Litigator – Let’s be Sensible

By: Mark Gruber J.D., L.L.M,

mg@gruberlaw.biz

Litigators come in two distinct forms-emotional or intellectual. The old school litigator is one who twists and sensationalizes every minute issue. A skilled trial attorney has the power and opportunity to spin a fact to the level of fantasy. The divorce arena presents a fertile environment for this emotional approach to dispute resolution. One can allege anything and build a case on speculative conjecture. So what if the ultimate proofs fall short of the mark. The mere assertion of these unproven allegations can and often will create an implication of bias and credibility doubt, even without the requisite proof. As attorneys we have the power to elevate divorce litigation to that level. More aptly stated, there are some attorneys who reduce the level to the emotional hysterics of their clients. A simple example: A spouse loses a job because of the employer reduction in workforce. Without proof, the attorney advocate alleges conspiracy between the fired employee and the employer. A great amount of time can then be spent on the defense of the conspiracy allegation even though there is no proof of conspiracy. Use your experience to recall other unfounded emotional issues raised at trial that diverted attention away from the real issues and consumed an inordinate amount of time and legal fees.

The other approach to divorce litigation is to strip away the issues of client emotion and present the facts that can be proven. After all, the trial is before a judge and not a jury. A judge will best render a finding of fact in the absence of unproven emotional window-dressing, innuendo and red herrings. In the above example, the real issue is the earning capacity of the terminated employee, usually determined by the prior earnings history. What is the sense of raising an unproven irrelevant collateral issue?

Is the Rambo approach good for the client and the public’s perception of our divorce procedures? Most would say no and for good reason. The psychological impact on litigants is devastating. The additional cost of discovery and trial is beyond most litigant’s ability and serves no purpose other than to pursue our clients vendettas or to massage our trial egos. Our courts do not have the judicial resources to accommodate protracted litigation. The contentious and hostile environment is counter- productive to settlement. Let us as divorce litigator’s come to our senses and litigate fact, not fiction.

About the Author

Mark Gruber, Esq. is certified by the Supreme Court of New Jersey as a Family Law Attorney, a Fellow in the American Academy of Matrimonial Lawyers, and a Fellow of the International Academy of Matrimonial Lawyers. He is certified by the AAML as a divorce mediator and arbitrator. He has practiced family law for 28 years in New Jersey.

For more information about the author, to read other articles, or to link to other family related sources, go to gruberlaw.biz or email mg@gruberlaw.biz.

A woman, I’ll call her “Jane”, recently came to see me after a ruling in family court had gone seriously wrong.  Jane had separated from her husband after he was arrested for committing an act of Domestic Violence against her.  Jane and her husband had two children together, ages 7 and 11. Jane had never worked outside of the home during the marriage and she had always been the primary caretaker for the children.  She had retained an attorney who did not tell her that his primary area of practice was personal injury, and he filed for divorce based on her husband’s physical cruelty.  Jane’s husband hired an experienced family court attorney who counterclaimed for a divorce alleging that Jane had committed adultery.  The parties went to a contested temporary hearing without any attempt to settle the temporary issues by agreement.

The judge found that Jane had committed adultery, gave the home and custody of the children to her husband, denied her alimony, gave Jane visitation every other weekend and ordered her to pay child support.  This was in spite of documented evidence of her husband’s arrest for Domestic Violence.  The judge apparently felt that extramarital sex was a greater offense that an act of physical violence.

I have handled numerous cases with very similar fact patterns utilizing the Collaborative Practice process, all with very positive results for the entire family.  We have successfully utilized the services of trained Collaborative mental health professionals to help these families focus on the best interests of their children as they learn mature communication skills that will serve them greatly as they co-parent their children post divorce.

For more information about Collaborative Practice, you can visit www.sccli.org or http://www.collaborativepractice.com/

Guy Vitetta

I am not an advocate of using litigation to resolve most Family Court cases.  As you may know, I have been a trial lawyer for nearly 20 years.  I have tried more than 100 jury cases, including 6 murder cases, and have obtained excellent results for most of those clients. My level of trial experience exceeds that of most criminal law and family law attorneys in the tri-county area.  As an accomplished and skilled litigator, I can tell you, Family Court is often the worst place to resolve legal problems involving families.

Sometimes litigation is the only realistic way, but this is rarely the case.  Family-related disputes (divorce, separation, custody) are distinctly different from other cases in the judicial system because the ramifications of these cases have a direct impact on all of us.  We all know people going through a nasty, contested divorce.  Because these situations are so complicated, unnerving, and intense, people naturally want or need to discuss the ongoing litigation.  The worry, sorrow, and anger can effect work and school performance as well as relationships with friends, neighbors and family members.  The amount of time and energy spent is astounding; it is natural though.  Litigation is like war, and people have to deal with the emotions around war somehow.  Like war, family-related litigation has a ripple effect in our community unlike any other kind of case.

So when should you consider resorting to the courts?

The courts will impose very clear “ground-rules” in a case restraining the use of certain (or all) marital assets and providing a structured parenting plan for the children, if necessary.  They will also require the disclosure of information (lawyers call this “discovery”) between the parties necessary for a resolution.  Finally, the courts have the authority to enforce their orders with fines and even jail time.  I almost always recommend court intervention in three types of cases:

Substance abuse. Cases involving serious substance abuse issues are appropriately filed in court.  Often people who are actively abusing alcohol and/or drugs are simply not rational and issues around trust prevent effective use of collaboration or mediation processes. The party’s inability to use substances with appropriate boundaries dictates the need for court-ordered structure to ensure the safety of children and protection of the family’s finances.

Mental Illness: When serious mental health issues are diagnosed or strongly suspected, and the party with the illness is either untreated or not stable, the court again can provide important structure in resolving the case.  Similar to the issues regarding substance abuse, the concerns with parties suffering from mental illnesses stem from lack of trust, rational behavior and reliability with regard to performing obligations in the separation and divorce process.  Court intervention will compel compliance if necessary.

Physical violence: Cases involving physical violence should also be processed through the courts.  Even if physical assault is not ongoing or regularly occurring, the threat of assault can easily prevent good decision-making.  Often, Courts will impose boundaries preventing parties from harming one another and resolution can usually be developed with physical threat “off the table”.

Emotions usually run very high in people facing family disputes – this is not news.  The above scenarios are not meant to judge people whose behavior is influenced by drugs, violent feelings, or mental illness.  However, the behaviors do warrant serious boundaries being imposed upon them.

Ok, but what if my spouse had an affair?

Adultery is by far the most common allegation of marital fault seen in court.  However, it rarely influences the outcome of a case, with one exception.  If the adulterer-spouse has an otherwise legitimate claim for alimony, and adultery is admitted or proven in litigation, that spouse will be barred from receiving any alimony.  If the “offending” spouse is not entitled to alimony, the extra marital affair will have very little impact on the final resolution.  Regardless, cases involving adultery that do not involve substance abuse, mental illness or violence, are often best resolved outside of the litigation process.

So, why do divorces with no drugs, mental illness, violence, or adultery end up going to Court?

One reason is: Habit – it is how the Family Court system is set up.  Out of habit, some experienced lawyers file a lawsuit in a divorce case as their first course of action.  They simply are not trained or skilled in trying other approaches.   Our Family Court system has been created and sustained by attorneys who, like all people, resist change.  Justice Sandra Day O’Connor reminded us once that our courts were designed to be the last resort of conflict resolution, not the first place you go to resolve a legal or marital problem.  Her wise words need to be taken to heart by all of us.

A person facing separation/divorce/custody disputes may not be aware that there are alternative ways to resolve disputes.  As a person facing family law for the first time, you might rely on friends‘ experiences, which by and large have used the old model, i.e. habit.  Given the reality of our court system, it pays to investigate the alternatives and make a rational choice – not one based on habit – even if it is disguised as “experience”.

Don’t people who go to court “get more” fairness, money, etc. than those who settle out of Court?

Seems like that would be the case but, NO!  Generally, when a dispute arises over separation and/or custody of children, both parties have some valid claims.  Attorneys and clients feel they should “get as much as they can” for the client from the opposing party.  This is natural (it’s war, remember?).  Depending on resources available (i.e. how much money you have at your disposal), parities and their lawyers will often be working to convince a Judge to give them a few more percentages in the equitable division of the property and/or a few more overnights with the children.   They might be using accountants, psychologists, Guardians, family friends and co-workers in this effort to convince the judge, and because their claims are valid and they have the money, they feel it is justified.   But the potential benefit (ie “winnings”) is generally very small and the risks and cost are huge.

When should I consider avoiding court?

The most frequent reasons leading people to decide to separate and divorce are personal to the family.  Passive aggressive behavior (one party is just mean), lack of communication, lack of affection, “controlling” (i.e. insecure) behavior, etc.  Essentially the parties are not getting along, are no longer compatible, are very unhappy, and need to separate.  Both parties are rational, of sound mind and  simply need to find a way out of their marriage.  In my opinion, court intervention in these cases is simply not necessary and no benefit will be obtained by either party.

When spouses are simply not getting along, there is very little point to litigation.  Litigation has the potential to bankrupt the family and leave permanent emotional scars.  The main winners are the lawyers who profit financially from the family tragedy.  The more you fight, the more lawyers make: they know how much money you have to spend, and may be unwilling to quit the fight.

It also can take years to get a final resolution in Court. When it finally gets there, your case will be heard by an overworked judge who will not have sufficient time to give the matter the attention it deserves.  At the end of the day, no one will be happy with the Judges ruling and the animosity within your family will likely continue for many years to come.

So what should I do if I have decided to separate from my spouse?

My recommendation?  If you and your spouse are in the vast majority of couples who are simply not getting along and have decided to separate, investigate the use the collaborative law process or the mediation process to resolve the issues.  These processes work outside of the court system and are forward thinking. They resolve the issues involved in your separation by looking to the future relationship of you and your family.  These processes will empower you to create a plan that will be a benefit to your family in the future, preserving relationships and your money.  They are also discreet. Since they operate outside of the legal system, your friends, family members, co-workers, classmates, etc, will not be involved or even know about it unless you choose to tell them.

For more information on Collaborative Law, go to the South Carolina Collaborative Law Institute at www.sccli.org/ or the International Academy of Collaborative Professionals at www.collaborativepractice.com/; For information on Mediation, go to the Mediation and Meeting Center of Charleston at www.mediationcharleston.org/.

Guy Vitetta,

Vitetta Law Group

If you have read any of my other posts, you can predict my answer- it depends!  I will tell you how to get a pretty good idea.  In this post I’ll just talk about the litigated (contested) case, and in future posts I will discuss mediation and collaborative law costs.

First, much is going to depend on the hourly rate of your attorney. All family court attorneys charge by the hour, and hourly rates range from a $150 per hour for associate attorneys to $300 and up for more experienced attorneys.

Generally, a contested case can be divided into three phases: The initial filing stage, the discovery stage, and the trial preparation/ trial stage.

Expect to be billed at least 12-20 hours at the initial filing stage. This will involve all things necessary to prepare for and attend a Temporary Hearing to establish certain status quo requirements such as temporary custody, child support, spousal support, use of the marital residence, autos etc.  This is an extremely critical hearing because it will establish a “status quo” which may influence the ultimate outcome of your case.  This stage will last about 90 days on average.

I call the next stage the discovery stage because this is the time when we will gather all the information we need to prove your case. Most often we use the formal legal discovery process that will allow us to get all the information that we need to prepare your case for trial.  If children are involved, the court will appoint a Guardian ad Litem at the Temporary Hearing, and the Guardian will be conducting their investigation at this time as well.  Expect your attorney to spend at a minimum 20 hours during this stage, and depending on the complexity of your estate, easily as much as 50 hours.  Also, the Guardian may well spend 25 hours (at about $150/hr), which is usually shared equally between mom and dad. This stage could last between 3 and 9 months.

The final stage, the trial preparation/ trial stage, involves your attorney organizing everything that has been gathered during discovery, preparing the testimony for each and every witness, organizing exhibits, issuing subpoenas, designing the presentation of the case to the judge, and conducting the trial.  This stage, including the trial of your case, will likely involve 40 to 60 hours for your attorney.  A Guardian will prepare a report and attend trial, and spend as much as 20 hours, but could be more depending on the length of your trial. You can expect this stage to take another 3 to 6 months.

So add up the numbers and ask yourself “Am I feeling lucky today?”  Whenever you leave a decision up to a third person, i.e. The Judge, the decision can go either way. Your attorney should do an excellent job of preparation and presentation, but don’t forget, there will be an attorney on the other side doing the same thing.  In my nearly 20 years of trial work, I have never seen a trial happen exactly as planned. ALWAYS, something unexpected happens, usually more than once!  Sometimes it matters a lot, sometimes not, but by the time it happens, it is often too late to fix it, and I am left having to deal with the consequences.  (Look for a later post titled “its a crap shoot.”)

My recommendation- if you can avoid litigation, do so!  On the other hand, you may be stuck with a recalcitrant, unreasonable spouse, and have no option but to spend the cash.  In that case, you need to make sure you get an honest, hard working and highly qualified trial lawyer to assist you. (Look for my later post “How to select an attorney”).

Guy Vitetta

Before I begin to lambast our antiquated and inefficient judicial system, let me start out by pointing out the good.  In the tri-county Charleston area, I can say that without a doubt we have excellent judges who show up for work every day on time, they work hard to do their very best, and sincerely care about how the decisions they make affect the litigants.  The employees of the Clerk’s office are helpful and knowledgable about their jobs.  The security personnel (several of whom I have spent many a long night waiting for a jury verdict!) are also pleasant and efficient at their jobs.  When a trial lawyer or a litigant has to work with the judges or personnel of our judicial system, there is very little about which to complain.  What I see that needs to be improved is the actual structure of the system, top to bottom.

We have a judicial system that worked very well about 300 years ago.  We had a sparsely populated state and small counties that did not need a judge more than a couple times per year.  Larger counties needed judges more often, but not full time. The result was that judges literally rode a “circuit”.  It was an efficient use of shared resources that enabled counties to pay judges when they were needed.  This was a system utilized throughout the United States.

Virtually every other state and the Federal Courts have long ago abandoned the circuit system.  However in South Carolina, you guessed it, our judges still ride the circuits even though virtually every county can use at least one full time judge.  Several years ago I was appearing in General Sessions Court before a judge from the Upstate. Where was our local judge?  Holding court in the Upstate!  There are several reasons why this system needs to be abandoned and we need a modern judicial system.

First, it is expensive.  Judges get paid extra, or a “per diem”, for traveling out of their circuit.  We know it is expensive because whenever our judicial system gets into a budget crunch, the first thing the Chief Justice does is to stop the judges from traveling out of their circuits.

Second, it is not conducive to an efficient administration of pending cases.  In virtually all other jurisdictions, each case is assigned to a judge, who then has the personal responsibility of administering his or her caseload (their “dockets”).  The judges then have the responsibility for ensuring that the cases on their docket keep moving along, i.e., motions are scheduled, settlements are promptly heard, and trials scheduled, all according the the judges schedule and preferences.  In South Carolina, each county is assigned a “Chief Administrative Judge” who serves for 6 months, is in charge of scheduling the entire docket for all of the other judges, and has her own forms and scheduling preferences.  After 6 months a new judge…  Kind of obvious how inefficient this is, isn’t it?

Finally, in our system, with no one judge assigned to a specific docket, every time a litigant goes to court on a matter involving his or her case, chances are a judge will hear it who has never heard the case before and needs to be completely re-educated on the facts and the procedural history.  This is perhaps the single most common complaint we get from our clients.  With the complexity of 21^st century litigation, we need judges who are familiar with the underlying facts and procedural history of our cases.  It is simply a more efficient administration of justice to have a judge hear a case that he or she has managed from the beginning.  That’s why virtually every other state and our Federal Courts do it that way!

A modern judicial system will not cure all of our ills, but a modern judicial system, along with litigation reform (an upcoming post) could create a more rational and efficient system. So the next time you are at the courthouse and observe the mayhem that has become our justice system, know that there is a better way!

People involved in Family Court cases, whether they be collaborative or contested, want to know when they can expect it to be over.  The answer is actually quite simple: it depends!  You didn’t think you would get a straightforward answer from a lawyer, did you?

Much will depend on the type of process you are utilizing to resolve your divorce.  A collaborative process can come to a conclusion in as little as two or three months because it is a very rational and deliberate process.  You can read more about collaborative law on this site, at the South Carolina Collaborative Law Institute (www.sccli.org), or the International Academy of Collaborative Professionals (www.collaborativepractice.com).  One of the features that clients like about collaborative practice is that clients are in control of the process and thus the time frame.

A case contested in the Family Court is a much different story.  I was recently in the Berkeley County Family Court for a pre-trial scheduling conference, and was informed that there are presently NO trial dates available in Berkeley.  We could wait 18 months to 2 years to get that case to trial. (The good news is that the parties are going to mediation soon and we expect that their case will be resolved at that time).

One of the reasons for this is the sheer volume of cases and lack of court time.  South Carolina has an extremely high volume of cases per judge, one of the highest in the country.  This means that the scheduling of any hearing longer than about one day is very difficult.  (Most divorce cases can reasonably take 3-5 days to be heard by the trial judge.)  Another reason is that the discovery rules do not lend themselves to a quick and efficient administration of justice.  Discovery often yields huge volumes of information that takes time to gather, sort, organize, and analyze. The more complex the case, the more information is subject to discovery, which adds more time. Often, experts are utilized who require more time to review and analyze the data and then prepare for trial.  Finally, the court rules for the conduct of the trial itself result in a very deliberate, and SLOW, process for the trial of the case.

At any time during the litigation the case can settle by agreement or in mediation.  In fact, mediation is required in the 9^th Circuit (Charleston and Berkeley counties) prior to requesting a final hearing.  This is because mediation will resolve most cases.  However, mediation generally will not occur until after an exchange of information, i.e. formal discovery or an informal exchange of information.

The bottom line is that if you are in a collaborative case, you will know how long the case will take to resolve. This is because you are involved and in control of the entire process from beginning to end. In a contested (litigated) case, you can expect anywhere from 9 months to 2 years, depending on the complexity of your case and whether you go to trial or settle the case in mediation or by agreement.

One of the biggest complaints that we get from clients who come to us from other attorneys is that there was no accounting for their retainer.  Sometimes after paying a large retainer, the attorney would request more money several months later without any accounting for any of the money already paid.

Attorney’s are ethically required to account for fees paid to them, regardless of whether the fee is paid as a retainer in anticipation of future fees to be earned, or as a fixed fee for the performance of a specific task.  So what should you expect when interviewing a potential attorney?

First, the entire relationship needs to be clearly defined in a written fee agreement.  The fee agreement should state the job the attorney is being retained to perform, hourly rates for the attorney, associate counsel, and clerks, whether the client is to be billed on the quarter of an hour or tenths (tenths is generally more common), the frequency of billing statements that are sent to clients of the firm, and other similar information.

There is a great deal of case management software available to attorneys that makes timekeeping and billing simple and cost effective. Our firm uses a web-based system called Rocket Matter that allows us to bill for time as we work on a case in a smooth and efficient manner.  There is simply no excuse anymore for an attorney not to be able to account for every minute spent on your case.

When you receive a billing statement from your attorney, review it carefully.  Your  billing statement should state with enough detail the tasks that were performed by your attorney so that you can understand what happened during the last billing cycle. Each line item should have a date, a statement of the task that was performed, the amount of time involved, and the cost. This is an excellent way for you to monitor your case progress and be reasonably well informed as to what is going on.

If you are not receiving billing statements on a “billable” matter, something may be wrong.  Either your attorney is not working on your case, or he/ she is not keeping time. Either scenario may not be good.  Remember, it is your money and you have a right to know how it is being spent, so request an accounting.  If you still don’t get a statement after asking for one, you need to meet with your attorney about this issue and find out what is going on.

An attorney recently told me that she was going to begin advertising that she did collaborative law cases.  This attorney has never been trained in collaborative law and has never even taken the mediation training, but she will now be informing the public that she is qualified to do collaborative law cases.

There are currently no uniform standards of practice that regulate the collaborative practice of law in South Carolina, although the Collaborative Law Committee of the South Carolina Bar will soon be addressing this.  In the meantime, what should the consumer do?

Thankfully, technology will allow us to investigate an attorney’s collaborative law qualifications from the comfort of our living rooms while catching the latest World Cup action!  First, check out the web site for the South Carolina Collaborative Law Institute (SCCLI) at www.sccli.org.  The SCCLI requires that all attorney members must have competed either the 40 hour mediation training or the 2 day collaborative law training upon their initial membership, but in any case an attorney must complete both trainings within 18 months of their membership date. The bylaws of the SCCLI also require annual continuing education.

Another place to look is the web site for the International Academy of Collaborative Professionals at http://www.collaborativepractice.com.  They also have very high standards of membership and an attorney listed on their site will generally be competent to handle a collaborative case.

But what if the attorney is telling you they do collaborative law but they are not listed on either site?  They very well may have completed the collaborative law training, but simply have not joined either group.  You need to ask them the following:

Have they taken the collaborative law two-day training?  Where and when?  They should have a certificate proving this.
Have they taken the mediation training?  Again, where and when and they should have a certificate.
If you retain the attorney, will he or she sign the Collaborative Law Participation Agreement?  If the answer is no, you will not be engaging in a collaborative negotiation.
How many collaborative cases have they negotiated?
Why are they not a member of the SCCLI or the IACP if they have taken the collaborative training?

Why do you care if the attorney has been trained?  Very simply put, collaborative law is a different form of legal practice. It does not utilize the standard adversarial dispute resolution techniques.  It is an interest based negotiation that may also involve related professionals to assist your family through the separation and divorce process (read “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher and William Ury for more information on interest based negotiations). Collaborative Law focuses on the facilitation of communication and problem solving, while the goal of the adversarial process is to win a case (meaning you win and your spouse looses).  Collaborative Law understands that your family will have a continuing relationship after the divorce and separation process; whereas, the adversarial process does not care about continuing relationships, it is a zero sum game designed to win at all costs.  Finally, interest based negotiating is not taught in law schools and our judicial system only operates on the principals of the adversarial process.

The bottom line is that the collaborative practice of law is completely different than what lawyers learn in law school and then practice in court.   Collaborative practice can only be learned in a two-day collaborative law training, and then followed up with practical experience.  An attorney telling your that he or she does collaborative law without having taken the collaborative law training will almost certainly not be able to provide you with what you are looking for.

I hope that you can now see the importance of retaining an attorney who has been trained in collaborative practice.  Until the SC Bar adopts uniform standards of practice, which will hopefully be soon, be careful.  If you follow my recommendations above, you will be assured of hiring a qualified collaborative law attorney if that is the path you choose to take.

Guy Vitetta,
Vitetta Law Group