Lawyer Selection for a Tennessee Divorce

Written by divorce and family lawyers with the Crone & Mason, plc Family Law Practice Group, our attorneys provide details of Tennessee divorce and other family law issues including answers to many frequently asked questions. Offices serving Nashville and Memphis Tennessee and surrounding area. Copyright, Crone & Mason, plc, 2007.

Frequently Asked Questions

1. Should I be represented by a lawyer?

Property settlements can be complex. Real estate law, debt refinancing, insurance, pension, other retirement asset division, child custody and support, taxes, and business ownership division can pose unique problems to any particular case. Your lawyer can help you determine which of your assets are marital property and which are separate property. Your lawyer can advise you as to how the court might divide that property in the event of a trial. Additionally, your lawyer can advise you on how much money, if any, you should accept or offer for alimony or child support. There is no such thing as a "standard" divorce. Ask around. Odds are that you will find that at least one of your friends or co-workers obtained a divorce without a lawyer and lived to regret it.

2. How can I prepare for meeting with a lawyer?

Ask when you set your first appointment. Next, make a list of questions that concern you most. Much of what you will learn in your initial interview will be things you need to know in addition to what you want to know. Although not required, it will be helpful for you to gather certain documents in preparation for your first meeting with your attorney. Locate and copy your important documents, including:

1. financial statements,
2. income tax returns,
3. bank statements (business and personal),
4. canceled checks,
5. brokerage or retirement account statements, and
6. employment contracts.

At the end of your first meeting, your attorney will provide you with a list of other documents to copy and bring for the next meeting, as well as give you forms to fill out regarding assets, debts, income, and expenses.

3. How do I find a qualified divorce lawyer?

If you know any non-divorce lawyers, ask them for a referral. Also speak to friends and family who have been through a divorce. Some local bar associations make referrals. The Memphis Bar Association does not. Do not rely on one person. Feel free to interview several lawyers. Almost all attorneys will agree to meet with you for a "consultation." This means you will pay a fee, generally based on an hourly rate, for meeting with the lawyer. Do not expect to be comfortable with the first lawyer you meet or consult. In fact, be surprised if you do. You will be discussing the most personal aspects of your life with someone you barely know. Rarely do any of us buy the first car we test drive or buy the first sofa we see at a furniture store. Certainly, choosing the lawyer who will help you through your divorce is a much more crucial decision.

4. What factors are most important?

The most important factors to consider when hiring a lawyer are your confidence in the lawyer, experience, accessibility, responsiveness, compatibility, style, negotiating skills, reputation, and fees. Also, learn whether the lawyer practices only family law or practices in other areas as well. Family law is as much a specialty as any other. Ask the lawyer whether he or she is a member of the local, state, and American bar associations' family law sections. Family law changes and evolves, often dramatically each year. Membership demonstrates the lawyer's commitment to continuing education and following the many changes and development of family law. Membership alone in professional organizations may not mean a lot, though. Participation in the organizations such as attending meetings, attending specialized family law seminars, teaching seminars to other lawyers, publishing articles on family law, and serving in leadership roles are better indicators of expertise.

5. Are these listed in order of importance?

They are all important. Your personal confidence in the lawyer is definitely the most important. Without confidence in your lawyer, you may face many sleepless nights you might not otherwise face.

6. How important is experience?

Very. Inexperienced lawyers may cave in to pressure too easily or take unrealistic positions, insisting on fighting losing wars to the death.

7. I understand that I need a lawyer, but what exactly does a lawyer do?

Typical services and tasks performed include:

• Consult with the client, listen, and read material presented by the client.
• Advise the client about what to expect by discussing how aspects of the case can go well and how aspects of the case can go wrong.
• Know the law and communicate with the client how it may apply in that situation.
• Suggest strategy in procedure, investigation, discovery, negotiation, and trial.
• Direct the investigation by professionals including private investigators and expert witnesses.
• Prepare, review, and file court pleadings.
• Lead settlement negotiations and suggest offers and counter-offers.
• Prepare you and some witnesses prior to testifying.
• Know, suggest, and engage expert witnesses and appraisers.
• Take and defend depositions.
• Prepare for and attend court appearances including motions, petitions, and trial.
• Be prepared to assist clients with and patiently talk through tough decisions.

8. I have heard horror stories about lawyers not returning calls and not filing pleadings in a timely manner. How can I protect myself?

Accessibility and responsiveness are crucial. More complaints are lodged with disciplinary boards for not returning phone calls than any other reason. Don't be shy about this important issue. Ask about how phone calls are handled. Better lawyers will have policies for returning phone calls, sometimes even in writing.

9. How does a lawyer determine his or her hourly rate and retainer?

The most important factor in setting an hourly rate is popularity. As you can imagine, there is no shortage of family law cases and most of the better lawyers have enough work. Retainers vary greatly. Ask ten lawyers how they set their retainer and you will receive ten different answers. Generally, the amount asked for a fully refundable retainer will reflect that lawyer's idea of a material investment in the case sufficient for that lawyer to make a corresponding professional commitment.

10. Do you mean that a retainer is not determined based on what a lawyer thinks the entire fee might be?

Yes. Rarely is there a correlation between the expected total fee and the retainer amount. Lawyers do not know how much time and effort will be needed to complete any particular case.

11. Do I receive a corresponding benefit if I hire a more expensive lawyer?

The better known and better established lawyers charge more per hour. The actual quality of that representation may not be worth the higher charge.

12. I know all this is important, but I just don't feel comfortable with the so-called "perfect" lawyer.

While there is no "perfect" lawyer, you are the client. Selecting a lawyer is a problem with which you must face. You pay the lawyer, not the other way around. Trust your intuition. If it doesn't feel right, it may be wrong. Run, don't walk, away from any lawyer who acts like you are lucky to be his or her client. Open the phone book. There are other lawyers from which to choose.

13. I do not know what to ask a prospective lawyer. What questions do you suggest I ask?

• Does the lawyer have a written fee agreement? May I see it before I decide whether or not I want to hire the lawyer?
• How does the attorney decide who works on my case and what tasks are performed?
• Can I choose to deal directly with my attorney?
• How often can I reach the attorney by phone?
• What happens when I call and I cannot speak to the attorney?
• What happens if I call, leave a message, and my call is not returned in 24 hours?
• How much does the attorney charge for travel time, expenses, computer research, cell phone calls, long distance charges, expert witness fees and other expenses other than time?
• What does the retainer pay for? Under what circumstances may I receive a refund for my retainer?
• How often is the lawyer usually out of the office for any reason?
• Who handles my case when the lawyer is out of the office?
• What does the attorney think about my judge?
• What should be my primary and secondary goals in obtaining a favorable settlement?
• In very general terms, what is a realistic but favorable settlement for my situation?
• Can I receive more than 50% of our marital property in a settlement?
• If we have a trial, will the court award me more than 50% of our marital property?
• At best, how much child support can I receive?
• At best, how much alimony can I receive if the case is tried/settled?
• What type of alimony, if any, will I receive if the case is tried/settled?
• For how long will I receive alimony if the case is tried/settled?
• Do I have a choice of judges?
• Will it make a difference in my case?
• Does the attorney want to represent me?
• What does the lawyer foresee as challenges to me obtaining a favorable settlement/result at trial?
• Does the lawyer ever work during non-business hours to meet with clients? Does the lawyer charge extra for those times?

14. Will lawyers wait until the end of the case to be paid?

Generally, no. A lawyer must pay rent, staff, and the rest of the operating costs of the office. Some lawyers may defer some payment if there is some security. In other instances, lawyers may require that a client offer another individual as a guarantor for the fees, seeking collection from that individual if fees are not paid timely.

15. Once I hire a lawyer, are there any particular limits upon that lawyer I should know about?

Yes. Generally, your family law attorney will only represent you in your family law dispute and not any other legal matter, not even a traffic ticket. Your lawyer should not guarantee results and cannot act illegally or unethically. Additionally, most lawyers will not act against the best interests of children. Although not set in stone in law, some lawyers and judges believe that divorce lawyers have a legally enforceable duty to act only in the best interests of the children.

16. What if my spouse does not do what is required by the Marital Dissolution Agreement? Why should I pay my own legal fees if there was a provision in the MDA talking about who pays attorney's fees?

No one can guess who will comply with a court order and who will not. A court ordered agreement can be enforced by contempt and if the matter proceeds to a hearing, some judges will award the prevailing party his or her attorney's fees. Just like with the divorce, there is no guarantee that the post-divorce dispute will not be settled or that if it proceeds to trial that the court will grant all of your attorney's fees. It is not the lawyer's responsibility to give legal services to a client to enforce an agreement, even if the agreement is part of a court order. Generally, a new contract and retainer will be required for a lawyer to begin this new matter.

17. Any final words of wisdom?

Yes. Do not hire a particular lawyer simply because that lawyer predicts a better outcome or promises a certain result. While it is human nature to gravitate towards a more positive person, the most important part of being a lawyer is advising a client about realities of a situation. While optimism has its place, before exercising good judgment in decision-making, a client must understand what can go wrong as well as what can go right.

Memphis - 901.683.1850       Nashville - 615.369.0640

Crone & Mason plc Attorneys at Law
Memphis Divorce Lawyer: 5100 Poplar Avenue | Suite 3200 | Memphis, Tennessee TN (USA) 38137 | Tel: (901) 683-1850 | Fax: (901) 683-1963
Nashville Divorce Lawyer: 205 Powell Place | Brentwood, Tennessee TN (USA) 37027 | Tel: (615) 369-0640 | Fax: (615) 369-0639
Email: firm@cronemason.com

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