Total Pageviews

Monday, June 25, 2012

5 things I wish all attorneys did

While I’m not perfect, I try hard not to fall prey to the things that drive me crazy, especially when it comes to my fellow attorneys.  I have a top 5 list of all time things I wish attorneys did or didn’t do on a regular basis, and thought I’d share.

The first is responding timely.  Clearly I wish this was something that everyone exercised on a regular basis.  There is nothing more infuriating than having worked your butt off on documents or settlement negotiations, cleared it all with your client and sent it off to opposing counsel, waiting for a reply.  And you keep waiting.  Wait for it……..nope, still nothing.  You can call, email, or write a letter yet never get anywhere.  Meanwhile your client is breathing down your neck and you can honestly say none of it is your fault, although that doesn’t ease your client’s already tense demeanor.  I try to reply to all messages, written or otherwise, within no more than 48 hours.  If you haven’t heard from me in that time frame, I’m probably sick or won the lottery and decided to bail on my job (unfortunately only the former has ever occurred, but I’m still hopeful).  We’re all busy people, but the faster you reply, the better chance we can close the case and everyone can move on.

Don’t personally attack me or my client.  Family law is stressful enough, and the emotions of the clients are at an all time high – it benefits everyone to stick to the facts and not sink low enough to take personal jabs.  All this does is make a tumultuous situation worse and stall negotiations.  There is no need to make fun of a person’s weight in pleadings (this happens more than you think) or call someone names in a letter.  Don’t forget that I have to pass these documents on to the client, which means they will see the nasty junk that was written about him or her.  Sometimes you do have people who do things which are really reprehensible, but most of the time the inappropriate comments are nothing more than below the belt and unnecessary.

Be prepared.  I’ve done my homework, read the law and know the facts of the case (other than those that some clients feel the need not to share with me, which is always fun).  You should be prepared too – if not for your own good, then for the person that is paying you – the client.  People notice when one side has got his ducks in a row and the other doesn’t, including the judge.

There’s the old saying that an attorney only lies when he opens his mouth, but I’d like to believe that this isn’t true.  Everyone has a reputation whether they want to or not, good, bad or mixed.  And of course, everyone has an opinion, which can mean more depending on who it’s coming from.  The last thing anyone wants to be labeled as is a liar.  We all know that some clients pick and choose what they tell us and we can only report what we’re told.  However, there are times where we know the other side is being shady and maybe it’s not just the client.  Having opposing counsel know that she can trust you is key to resolving the matter timely and successfully. 

Being courteous is another pet peeve of mine – both in my personal and work life.  It’s not always possible because at times you are under the gun with a time constraint or an emergency situation; but if an attorney asks me to postpone a motion for a week or two because he was recently retained, I’m likely going to do it.  I’ve been there and I know there’s a good chance I’m going to need to ask for the same professional courtesy from him one day, so it behooves me to accommodate him, plus it’s just the right thing to do.  The same goes for not serving people at the last minute with pleadings – although I totally admit I’ve been guilty of this a time or two but I’ve got to be really peeved to do so – giving people time to respond is the best way to ensure that all the facts come out and everyone can be prepared to argue their respective side.

I don’t want to cringe when I see the name opposite mine on the pleadings, and I certainly don’t want people to feel that way when they see my letterhead in their mailbox.  I try my best to do the best job for my client and maintain a good relationship with others in my field, and it’s always helpful if the other side does the same.  There’s always room for improvement no matter who you are, although I still plan on repeatedly telling my husband that I am already perfect.

Sunday, June 24, 2012

'Honey, there's just this one little thing'...Pre and post nuptial agreements

So you’re getting married!  Summer is such a good time to have a wedding – gorgeous flowers are blooming, there’s more sun than snow and your family law attorney is always in a better mood when he can go golfing after your appointment!  Wait…why are you seeing an attorney before you’re married?  Isn’t that the kind of meeting you have after the years of wedded bliss have vanished?  Nope, if you want to protect the assets you’ve accumulated, a pre-nuptial (also called antenuptial) agreement should be on your mind.

Pre-nups, as they are commonly called, are enforceable in Michigan provided certain conditions are met – the agreement must be reduced to writing with both parties signing their lives away,  “the agreement must be fair, equitable, and reasonable under the circumstances, and must be entered into voluntarily, with full disclosure, and with the rights of each party and the extent of the waiver of such rights understood.  In addition, the agreement should be free from fraud, lack of consent, mental incapacity, or undue influence.”  Rinvelt v Rinvelt, 190 Mich App 372, 378-79 (1991).  Circumstances surrounding the agreement must not change so drastically that when one of the parties later on tries to enforce it, this enforcement would be almost as outrageous as Jesse James cheating on Sandra Bullock.

Per Reed v Reed, 265 Mich App 131 (2005), if you’re trying to void a pre-nup later on, your crystal ball will not help you, as the change in circumstances must be unforeseeable.  (Then again, if you’d had a crystal ball to use in the first place, you would’ve seen the problems that lied ahead with his constant nagging about your occupation of the entire master and spare bedroom closets, and planned accordingly to purchase a larger home).

If you think all of this sounds like a contract, then you’re right – the courts use contract law to interpret and wage legal battles over these agreements.  Some pre-nups use standard, boiler-plate language that doesn’t say too much, and others are insanely specific, with infidelity clauses, voiding of provisions once the parties have been married so many years, etc.

Post-nuptial agreements are also executed after the parties are married for the same basic reasons, but I would venture to say those are far less common.  I mean, how many people are willing to sign things away after they’ve already bought the cow and the milk?  I’ve seen some people offer to reconcile with their estranged spouse, but only if the spouse signs a post-nup – I know this doesn’t seem legit, but it may be enforceable.

Post-nups come in two forms based on the parties’ intentions – the first being if you plan to stay hitched, and the second being if you are indeed separating and/or divorcing.  If you’re checking out of the marriage, then these agreements are reviewed based on contract law and fairness is not something the court has to consider. 

However, if you are going to stay  married, per Wright v Wright, 279 Mich App 291, 297 (2008),  under Michigan law, a couple that is maintaining a marital relationship may not enter into an enforceable contract that anticipates and encourages a future separation or divorce.”

Pre and Post-nups are standard with the elite and wealthy in society who actually have significant assets to consider, especially when the situation bears a resemblance to that of  Britney Spears and Kim Kardashian.  However, if you’re like the rest of us, you probably have more debt than anything else, so you can put that legal retainer to better use – your future bride’s wedding shoe fund.

*Courtesy of Jackson County Legal News, Vol. 47, No. 70, 6/7/12