by Samuel K. Darling, Bellevue Divorce Lawyer
This is the advice our firm most commonly imparts when we train a new family law attorney.
1. Expect the Court to Grant Hearing Continuances Liberally. This subject often arises when the opposing party hires an attorney shortly before your client’s hearing on temporary orders. The newly appearing attorney requests a continuance of 1-2 weeks to get up to speed and draft a response.
Expect the court to grant the continuance. Moreover, the court probably expects you to agree to the continuance absent strong reason to contest it. The law errs on the side of giving parties the opportunity to fully present their case on the merits.
Best to win points with the court by agreeing to the continuance without a fight. Your client might not like it, but it’s better than loosing points with the court on a foregone conclusion.
If your client needs interim relief (relief until the continued hearing date), try brokering an agreed order that provides it. For example, if the court date in question is a return hearing on an immediate restraining order, you should be able to agree to an “alias order”. An alias order keeps the immediate restraints in place until the continued hearing date. Otherwise they expire on the return hearing date set in the immediate restraining order.
If your client needs interim relief and the opposing party/attorney won’t agree to it, you might need to show up for your original hearing date and argue the point in front of the court. Make clear you’re agreeing to the continuance but have a disagreement on the terms of interim relief.
2. Don’t Expect the Court to Grant TRIAL Continuances Liberally. Washington State pressures counties to resolve family law cases quickly, and moving quickly toward trial is one way judges hope to achieve that goal.
3. Move Inactive Cases Toward Completion Quickly. It’s easy to get sidetracked and forget about cases that aren’t “on fire”. If you need to, take fewer cases so you don’t loose track or loose the ability to advance them. Contrary to what you might think, your client wants you to work on his or her case. He or she especially wants you to get it over with. Family law cases are extremely stressful for most parties.
The exception to this rule is if you’re moving slowly in an effort to conduct discovery. If that’s the situation, advance your client’s interests in the discovery process quickly as you reasonably can.
Often this means marking your calendar with numerous reminders.
4. Mediate 6-8 Weeks Before Trial. Our firm sometimes calls this the “golden window” or “magic window”. Mediating during this period greatly increases the likelihood of settlement. We have a divorce mediation article that explains this in more detail.
You also want to mediate at least six weeks prior to trial, just in case you don’t settle and need to prepare for trial. You’ll need that much time to send an ER 904 notice. For more on ER 904 notices, see our article on How Trial Works: Divorce & Family Law.
5. Let Clients Know You’ll Part Ways if They Lie During Your Representation. Say it when you first meet them. It sets expectations. Otherwise the pressures of family law seem to cause litigants to lie readily. You’ll be happier with your practice if you’re fairly sure your clients are the ones telling the truth, even if they did bad things before.
It’s also easier to perform well at trial if your client has a track record of telling the truth and the other side doesn’t – lies tend to catch up with people by the end of the case.
6. Return Calls and Emails Quickly. Don’t let any email or call go more than 24 hours without a response. Even if you’re not taking new clients and feel overwhelmed, respond with something quick. For example, you might respond to a client’s lengthy email with something like “I saw your email. I’ll send a proper response soon as I’m able. My apologies.”
7. Check Your Emails Once Per Day if You Get Busy. Turn off your email client (e.g., Outlook) the rest of the day so you aren’t constantly disturbed or tempted.
8. Use “Out of Office” or “Unavailable” Messages If You Can’t Respond to Calls & Emails within a Day. This includes if you’re preparing for trial or some other legal event that requires days of undivided attention.
9. Don’t Show Your Anger. Not in court (read Jerry Spence’s books), not with opposing parties (increases conflict for the parties and hurts your reputation), and not with poorly behaving clients (empathize with them and look to compassionately exit the case).
10. Rehearse Your Oral Arguments. Law school professors often say “hearing results are 90% from written materials and 10% from oral argument”, or “jurists usually have their minds made before oral argument even begins.” These professors’ well-intentioned guidance might be true in some contexts, but probably not in family law. As a young attorney, I noticed a stark difference in my results when I prepared thoroughly for oral and didn’t. I’ve also noticed a marked difference in results between experienced practitioners who prepare well for oral and those who don’t.
Outline your oral argument first. Rehearse it numerous times until you can speak fluidly without reading a script (need to look the jurist in the eyes), without fumbling (jurists don’t like wasting time), and without looking down at your outline continually. Then revise it and rehearse some more. It’s okay to spend several hours preparing for oral argument. Your client will thank you later, and you’ll look better in the process.
11. Do Your Legal Research. Many family law attorneys don’t, even experienced ones. Avoid the trap of regressing to the level of your weakest competitors. Do a good job. Learn the law, double check it periodically, and brief the court on any relevant laws you suspect the jurist might not know.
12. Exhaust Secondary Resources First. Don’t jump straight into case law or statutes when researching the law. True, case law and statutes are black letter law, but they take a long time to research and rarely provide the big picture. Research secondary sources first. By secondary sources, I mean summaries or compilations of the law, such as Washington Practice Series, a Washington Lawyer’s Practice Manual, or the Family Law Desk Book. If you can’t find the answer in one secondary source, look in another, and then another.
Don’t move onto black letter law until you’ve found one or two secondary sources on point or have exhausted all secondary sources you can think of. In my opinion, the Washington Lawyer’s Practice Manual: Domestic Relations is the best place for simple overviews of common family law topics. The Washington Practice Series: Family and Community Property Law is the best resource for more detailed research. You can usually find both for free at your county’s law library.
That’s it! We hope you found this article helpful. Our firm believes in making quality legal information available on the internet for free to the extent we’re able. For more free articles, guides, and videos, we encourage you to visit our website’s resources section (see the upper right corner).
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