Secrets Revealed: 95 Tips on Becoming a Better Lawyer
By Lonny L. Balbi, QC
Balbi & Company Legal Centre
Family law lawyer Lonny Balbi asked some of the most successful lawyers across North America to provide their unique insights on the practice of law. He found what he was looking for: practical advice covering the stuff they don't teach in law school...
Table of Contents
A. CLIENT RELATIONS
1. Feel it in Your Gut
2. Why Clients Choose You
3. Reasonable Expectations
4. "Getting Instructions"
5. Be Exclusive
6. Mutual Consultation
7. Agendas and To-Do Lists
8. Books For Clients
9. Basic Information For Clients
10. Educating Your Clients
11. Client Financial Disclosure Acknowledgment
12. Be Careful About What the Client Says
13. Homework for the Client
14. Voice Mail Schedule
15. Phone Calls
16. Returning Calls
17. Soothing Your Clients
18. Get it Off Your Chest
19. Using Psychologists
20. Be Genuine 11
21. Return of Original Documents
22. You Are Not Right For Everyone
23. Civil Litigation
24. Admission of Service
25. Avoid Getting Sued
26. The Wrath of the Ex-Parte Order
27. Too Much Information
28. A Free Lawyer For the Kids
29. Visual Aids in Custody Cases
30. Long-Distance Access Strategies
31. Effective Budgets
32. Examination For Discovery Plan
33. Kindness at Trial
34. Be Prepared
35. Get That Divorce Done
36. Med/Arb: Does it Make Sense?
C. SMART PRACTICE
37. Love What You Do
38. Become a Better Lawyer
39. Autism in Family Law
40. The Procrastination Problem
41. Life's Basic Principles
42. Group Hug
43. Best Practices
44. Office Efficiencies
45. Useless Letters
46. Preparation is the Key
47. Don't Get Personal
48. Losing One Family For Another
49. How Many is Too Many?
50. Early Four-Way Meetings
51. Offers to Settle
52. Send Client Copies of Everything
53. Know the Limits
54. Two Lawyers are Better Than One
55. Checklist When Opening New Files
56. Pension Statements Don't Tell the Whole Story
57. Paperless Debts
58. Will You Have a Will?
59. Child Abduction
60. Child Abduction and Air Canada
61. Public Seminars
62. Your Reputation is Your Best Friend
63. Personality Testing
64. Computer Programs
66. Read "Eats, Shoots & Leaves"
67. Preamble in Orders
68. COLA Clauses
69. Get Real in Affidavits
70. Simple Language in Affidavits
71. Affidavit Drafting Tips
72. Constructive Trusts
74. Negotiate That Prenuptial
75. Negotiating Any Agreement
76. Releases From Debts
77. RRSP Provisions
78. Don't Forget These Assets
79. Indemnity Provisions
80. Paper the Deal
81. Scribble an Agreement
82. Get Outa Here
83. Schedule Exercise
84. Take A Break
85. Snooze Time
86. Stress Busters
87. Second, Third or Fourth Lawyer?
88. No Freebies
89. Record Your Advice
90. Get Paid
91. Discount Your Time?
92. Discount Your Bill?
93. Using Credit Cards
94. Marketing To Other Lawyers
95. Guerilla Tactics on Getting Paid
A. Client Relations
TIP # 1 Feel it in Your Gut
When you meet with a client and you feel it in your gut that there is something wrong with this client, listen to your body and do not take on the file. In most cases, your initial instinct will be right. There are plenty of other lawyers out there to help that client..
TIP # 2 Why Clients Choose You
How and why divorcing couples choose their lawyers may be a mystery. Studies (see M. Hillary & J. Johnson,Selection and Evaluation of Attorneys in Divorce Cases Involving Minor Children, 9(1) Journal of Divorce 93-104 (1985)) show that people's criteria to select lawyers varied greatly:
- 58% of people found a lawyer through a personal recommendation;
- 21% had already known the lawyer in another capacity;
- 14% obtained lawyers through a professional referral.
Respondents also reviewed criteria on how to select a lawyer:
Lawyer's expertise in divorce cases
A study by Feldman & Wilson, (The Value of Interpersonal Skills in Lawyering, 5(4) Law and Human Behaviour 311-24 (1981)), showed that clients preferred lawyers who are perceived to have high levels of both legal competence and relational skills. Interestingly, the second most highly rated group were lawyers who had high relational skills and had low legal competence. The study concludes that "this finding would seem to indicate that perhaps a lawyer's relational skill, more than his legal competency, guides positive client perceptions" (ibid pg 320).
TIP # 3 Reasonable Expectations
One of the greatest errors of many lawyers is their failure to establish reasonable expectations for their clients. Telling clients what they want to hear instead of what is likely to be reality will result in time and money wasted and spending the rest of the case trying to bring the client back to reality. Better to tell the client the bad news from the start and anything you can do to improve upon that position will make you into an all star.
TIP # 4 "Getting Instructions"
Inexperienced counsel often use the excuse that they cannot make a decision on a matter until they "get instructions" from their client. This is often a cop-out. The lawyer, not the client, has the sole discretion with respect to granting the other side accommodations which do not directly affect the merits of the case or prejudice the client's rights. This would include reasonable requests for time extension, adjournments, provision for disclosure in a different form than requested or procedural matters.
TIP # 5 Be Exclusive
When interviewing clients at your first meeting, many lawyers try hard to impress their clients to get the file. Try turning the tables and make yourself exclusive. In essence, the client is being interviewed by the lawyer and the lawyer decides whether or not he or she will be taking on that client. Unless the client meets the criteria established by the lawyer, the lawyer will simply not accept the matter.
It is a natural tendency for humans to want that which they cannot have. Exclusivity is an extension of this concept. Use it to get yourself better quality clients.
TIP # 6 Mutual Consultation
Similar to the tip above on being exclusive, another approach to exclusivity is to make it clear at the first interview with a prospective family law client that it is a mutual consultation. That is, the client is consulting you and you are consulting the client in order to determine whether the two of you are a fit. This makes it much easier to say no if, at the end of the interview, any of the hairs on the back of your neck have gone up. One of the great stressors in family law is acting for difficult clients. Most high conflict cases involve people with personality disorders. They can be the ruin of your life and make practicing dramatically more difficult than it has to be. You need to make it clear on a first interview that the purpose of the interview is to determine whether there is a fit between the lawyer and the client and that there is to be no obligation on either side to either retain the lawyer or accept a retainer. Accordingly, it follows that if it becomes clear in the first interview that there are some reasons why you should not take the case, you need to learn to say "no" at the very earliest possible stage.
TIP # 7 Agendas and To-Do Lists
In business, agendas are a "must" for all meetings. A similar approach can be used in meetings with clients, particularly where the client is lost or overwhelmed in the process and needs some guidance.
At the client meeting, the agenda is reviewed to discuss possible goals and outcomes (with the outcomes often being the negative consequences of what may happen if there is no plan) and legal options are discussed. A strategy for this client is then developed. At the end, the strategy is then set down on paper and a "to-do" list is prepared.
- The importance of the meeting, with agenda and a to-do list results in:
- The client is forced to choose a specific option and strategy;
- The lawyer can figure out any hidden agenda;
- The lawyer engages the client in the settlement process; and
- It creates a clear direction, with acceptance of the inherent costs of that decision.
TIP # 8 Books For Clients
There are many excellent resources available, for instance, for separating and divorcing couples. You can give your clients some reading materials to take home to help them cope with their current situation. Family lawyers, give your client Bruce Fisher's book "Rebuilding: When Your Relationship Ends" as a gift to help them. Not all clients are the "reader-type" but those that are will appreciate your gesture.
TIP # 9 Basic Information For Clients
Create a file of basic information that can be handed out to clients at their initial interview. It could also be provided in electronic form.
TIP # 10 Educating Your Clients
Give your client the value of your experience and expertise by providing them with information which is pertinent to his or her case. This can be accomplished easily and inexpensively by purchasing third-party materials such as books, tapes or brochures which are relevant to your area of law. You can also give your clients materials from your library, either as a copy or on loan. In some cases, you may also provide clients with telephone numbers or websites where they can obtain the information on their own. (Although this last source is valuable, most clients tend to overlook them and see them as less valuable than actually receiving hard copies of materials from you.)
TIP # 11 Client Financial Disclosure Acknowledgment
In general, most clients are honest and will disclose all financial affairs to their own counsel. However, there is a lot of information on the internet and in books on how to hide assets and income from lawyers or spouses.
It is important to be extremely clear with clients that financial disclosure is the foundation upon which settlement in family law is achieved. Some counsel even have their clients complete a client financial disclosure acknowledgment form confirming all disclosure relevant to the case has been given to the lawyer.
TIP # 12 Be Careful About What the Client Says
Never trust your client as to how title to property is held. There may be cases where you have concern that the property will be dissipated or disposed of prior to a resolution or, the title to the property may significantly affect your client's claim. It is absolutely amazing how often clients are wrong about who owns what in their marriage.
TIP # 13 Homework for the Client
At the initial interview with a client, emotions are usually heightened and this is not the best time to give the client a lot of homework to do. However, as the file progresses, it is important to ask the client to do their homework and provide you with appropriate documentation. The normal documentation can be set out in a form and checking off the items you need.
Some other homework for the client might include going through the matrimonial home to inventory the contents room by room, categorizing each item by source, cost and approximate market value.
TIP # 14 Voice Mail Schedule
In order to set realistic client expectations, put your daily schedule on your voice mail so the client knows when they can expect a return call.
TIP # 15 Phone Calls
Return phone calls the same day.
TIP # 16 Returning Calls
Educate your client from the beginning on what to expect in terms of returned telephone calls. Respond to your clients quickly. If you cannot do it, have one of your staff call. Clients pay a lot of money for lawyers and they deserve proper attention.
TIP # 17 Soothing Your Clients
When your client has a very difficult problem which is more emotional than legal, try using the phrase "That's a very difficult problem to solve". For example, where your client is complaining about the other side failing to follow through with access commitments, or the other side is saying inappropriate things about your client, using this phrase often helps clients to move on with the issues at hand. Lawyers have reported that the simple phrase really works.
TIP # 18 Get it Off Your Chest
Clients, especially matrimonial clients, often need a way to tell their story to others. Think about different forums in which a client can get it off his chest. Consider using psychologists, social workers, mediation, Dispute Resolution Officer hearings, Judicial Dispute Resolution conferences and arbitration as possible ways to allow a struggling client to unload.
TIP # 19 Using Psychologists
In a contentious custody dispute, consider referring the client to a psychologist for ongoing counselling during the litigation. Benefits include: one, the client has a trained professional to assist with the very emotional issues present, and the lawyer can focus on the legal issues; and two, the psychologist can also be useful in helping the client to provide reasonable instructions.
TIP # 20 Be Genuine
The most important aspect of lawyering is the ability to connect with your clients. Treat them like friends and show your interest in them. Be genuine. Lawyers who do this are much happier, as are their clients.
TIP # 21 Return of Original Documents
When you have completed a file, give back original documents to your client. You will not have to store them and you shift the responsibility for safekeeping back to the client.
TIP # 22 You Are Not Right For Everyone
Try to make your legal practice fit you and your style rather than trying to change yourself to fit someone else's idea of what family law practice should be. Stay true to your values and principles and do not try to change who you are to accommodate a client. Do not try to be a round peg in a square hole. There are lots of different clients, some fit and some do not. There are other lawyers who can help the ones that do not belong in your office.
TIP # 23 Civil Litigation
Levels of stress and burnout amongst family law practitioners are very high. Much of the stress is caused by the nature of the practice, but, unnecessarily, much of the stress comes from dealing with opposing counsel.
It is time we started focusing on the civilized practice of law. This includes informing the other counsel of any applications being brought so that there is no surprise; advising opposing counsel when a fiat is being sought on a matter; treating the opposite counsel with respect; and avoiding getting personal with opposing counsel. Furthermore, it is certainly not in our clients' best interests to be anything other than civilized.
TIP # 24 Admission of Service
Occasionally, a lawyer may receive documents on a particular day but not admit service until several days later. The effective date of service remains the day the documents were first received. It is always open for counsel to prove service by way of an Affidavit of Service:
"In my view when documents are sent over with a request for an acknowledgment of service, that is really only a reference to Rule 25. Rule 25 in my view merely means that if there is an acknowledgment of service, one need not bother with an affidavit of service. In my view, however, it is always open to the party serving, if he has good service, to prove it by affidavit without waiting for the acknowledgment of service. If there is good service when the documents are received, in my view the service is not postponed or wiped out by backdating the acknowledgment of service."
– Bishop v. Bishop (1991), 113 A.R. 280 (C.A.) at 282.
TIP # 25 Avoid Getting Sued
There is a rise in the number of negligence claims against lawyers because a client paying spousal support thought he was getting a tax deduction when, in fact, it was not available to him. This generally occurs at the beginning stage of a case where the husband decides to keep the status quo in place financially on the advice of his lawyer in order to cool down tempers but, does not appreciate that in the absence of a written agreement, the support will not be tax deductible. The lawyer needs to go over interim arrangements with clients to make sure that they clearly understand and that you document, in writing, whether the payments are going to be tax deductible or not, and, if you intend them to be tax deductible, you need to put in place a written interim agreement that meets the requirements of the Income Tax Act.
TIP # 26 The Wrath of the Ex-Parte Order
Ex-parte orders continue to be problematic in family law. Counsel should be extremely cautious when proceeding with an ex-parte order. Just because a client requests it does not mean you should proceed ex-parte. The damage caused to the parties and the children may be irreversible at worst and temporary at best.
If an ex-parte order appears to be necessary for the safety of the parties, or for other emergency reasons, it is best to give the other side at least short notice, or, when obtaining the ex-parte order, simultaneously setting down a Court Motion to be heard in one or two weeks to have the order confirmed on notice to the other side. This places the responsibility and onus on the applying party to be fair in its request and to show the court good faith in proceeding with the application.
TIP # 27 Too Much Information
The cost of proceeding with interim court applications is becoming prohibitive to many clients. Often a rather lengthy Court application is needed to deal with all but the simplest of matters.
When applying on an interim basis and full disclosure is not available, both lawyers and judges need to be educated that full and complete disclosure at this stage of the proceedings may not be available or necessary. Explaining to the court the cost of litigation might just do the trick.
TIP # 28 A Free Lawyer For the Kids
In contentious custody battles, the issue often becomes one of he said/she said. The courts are at a loss as to who is telling the truth.
Consider using pro bono counsel. There are many retired lawyers who still have the skills and are more than willing to do a bit of good. Check around. Ask senior lawyers if they know of any even more senior lawyers who would be prepared to do a little pro bono work. It may take a few calls, but it is worth it. Make sure you take on all of the administrative burden such as typing affidavits and arguments, receiving faxes, paying disbursements etc. for the pro bono counsel.
Used wisely, pro bono counsel can be a tremendous resource. It is no longer the lawyer saying "dad says the child says she wants to stay with dad". If the child and pro bono counsel agree with your client, then opposing counsel has the option of either calling the child a liar or accusing counsel of coaching.
TIP # 29 Visual Aids in Custody Cases
Borrow from fellow personal injury lawyers and produce appropriate document evidence in custody cases. The types of evidence which could be helpful include:
- Chart report cards and show graphs on how the child is doing;
- Use a chart to show ages and stages of normal development compared to the development of this particular child;
- If a psychological assessment has been prepared and a number of negative characteristics are highlighted about the other parent, those statements can be taken out of the assessment and highlighted on a chart;
- Similarly, if the psychological assessment highlights a particular syndrome or behaviour pattern on behalf of a spouse, those characteristics can be put into a chart alongside the textbook definition of the syndrome and use these for comparison;
- Use a graph or a chart to show the comparative amounts of time spent by each parent with a child, broken down by days, weeks or hours;
- Use graphs or charts to show the duties performed by each parent for the child.
TIP # 30 Long-Distance Access Strategies
- Read stories to the child and record them on a tape;
- Send postcards with simple messages for the child;
- Provide children with appropriate magazine subscriptions;
- Start a pin or card collection for the child, then send updates often;
- Fax, e-mail and computer contact often;
- Make videotapes of the parent in his or her daily life or in special events;
- Buy a photo album and give it to the child and send pictures of the parent doing normal activities;
- Watch TV shows together, but while each of the child and parent are in a different city;
- Provide the child with pre-addressed postcards, stationery and stamped envelopes;
- Provide the child with phone cards or 1-800 numbers to contact the parent;
- Talk to the child's teacher to have copies of work sent to the parent.
TIP # 31 Effective Budgets
Although the Federal Child Support Guidelines has greatly reduced the use of budgets in family law matters, spousal support may still require them.
A good technique for counsel is to have their clients prepare two budgets: one budget to show how the family spent prior to the separation, and a second one post-separation. The differences between the two budgets can be highlighted as long as they are realistic. The budgets should be compared to income and expenditures and savings.
TIP # 32 Examination For Discovery Plan
At Examinations for Discovery, the marriage can be divided up into two sections. The first section deals with the chronology of the marriage and obtains dates and major events. The second section is broken up into specific subjects (spousal support, child support, custody, property division, etc.). This technique makes it easier to deal with the usefulness of discoveries at trial.
TIP # 33 Kindness at Trial
Kindness towards the opposing party at trial turneth away the judge's wrath.
TIP # 34 Be Prepared
When going to court or attending a judicial settlement conference, think in advance what it is you are seeking and be prepared by bringing a draft of the order or agreement you are seeking. Judges love it and are more willing to see things your way when presented with a clear picture of what you want.
TIP # 35 Get That Divorce Done
It is important to stress to clients the necessity of obtaining a divorce despite a long separation. The parties are still "spouses" and it is therefore easier to open the door on spousal support or property division.
TIP # 36 Med/Arb: Does it Make Sense?
Several counsel have achieved significant success in using mediation in family disputes. The use of a hybrid med/arb procedure allows the parties to mediate the dispute, and if unsuccessful, may appoint the mediator to act as arbitrator to render a decision. The decision becomes binding on the parties.
Particularly where the cost of proceeding to trial is prohibitive under the circumstances, and if the parties are willing to mediate, the med/arb option can be very useful. It allows counsel to pick an arbitrator who has background knowledge in the family law area and can render a reasoned decision for a fraction of the cost of normal litigation. If necessary, counsel can appear before the arbitrator to make representations on behalf of the client prior to the decision being rendered.
TIP # 37 Love What You Do
Maintaining good relationships with your colleagues will make the difference between an enjoyable and not so enjoyable practice.
TIP # 38 Become a Better Lawyer
Some people estimate that family lawyers spend 90% dealing with people and 10% on the law. Most of what we do is working with our clients in the areas of psychology, relationships, parenting and conflict. Reading in these areas is a wise investment to help you become a better lawyer.
TIP # 39 Autism in Family Law
Family lawyers must become better versed in issues around familial autistic spectrum disorders. Autism is on the rise. Where a separating couple has autistic children, it is highly possible that one of the parents is also on the spectrum and most likely undiagnosed. This speaks to parent capacity issues and access issues. More information on this topic is available online (do a Google search on the name "Sheila Jennings Linehan).
TIP # 40 The Procrastination Problem
We all have files that cause us anxiety and result in procrastination. Here are some suggestions on how you might want to handle those files:
- Try setting aside 20 minutes to review the file and deal with only one issue. Often the mental block was something not as bad as you had originally envisioned.
- Try having your assistant review the file for you to put it in a form which is manageable. This may mean reducing the correspondence pin, summarizing the pleadings or preparing a history for you. This makes dealing with it much more manageable.
- Some lawyers suggest having monthly meetings with other counsel in their office and do an exchange of files. Each of you takes one or two procrastination files and they are shifted to another lawyer. That file which causes you brain freeze has now been passed on, and you get a new one which may be of more interest to you. Of course, client consent is required (but will not likely be denied given that nothing is being done on the file!).
- If it is a real problem, maybe you have to get off the file. Sometimes a candid discussion with your client will be enough to get the client on side. Then, help transition the file appropriately to a new lawyer. The client will appreciate it and your life will be much simpler.
TIP # 41 Life's Basic Principles
It engenders trust and reduces suspicion, hostility and conflict. It allows the fight or flight instinct of the other side to relax and issues to be dealt with in a more productive way. Think about how demeaning and insulting it is to be kept in the dark, as an economic partner or as a parent. You do not have to be strategic or secretive in order to still be successful.
Treat everyone the way you would want to be treated, with respect and dignity, whether or not you believe they deserve it. Oftentimes the conflict is created because of bruised egos or self esteem. People need to defend or attack to preserve their own sense of value. It is not about the kids or the money; it is about showing that they as a person are valuable. In extreme cases, people become hyper-vigilant about the possibility of any implied or real insults and attacks on their self worth. Everything is an attack that needs to be defended or countered.
There is always an ideal solution; unfortunately either our clients or we do not have the time, talent or usually patience to do the necessary work to find it. The time, energy and patience spent here can save so much in the long run.
If what a client is proposing is not going to work for their spouse or the children, then it is time to rethink the proposal. It is fine to think about the needs and interests of the other(s) in giving advice and recommendations. If we are not respectful of their needs and interests we create our own impediments to resolution. (It is okay to be fair – we do not have to win!)
TIP # 42 Group Hug
Find other family law lawyers with the same common interests you do and form a group to get together occasionally to talk about problems. It is a great way to share ideas and practice tips over breakfast, lunch or dinner. Try to get together once a month or so.
TIP # 43 Best Practices
As you come across good practice techniques which could be used to teach junior lawyers, set them aside and organize them into a binder. That way, when you are teaching younger lawyers, you have a system in place.
TIP # 44 Office Efficiencies
Set aside one day a week as your "do not disturb" day where you take no appointments or phone calls and work only on files that require thought and writing.
TIP # 45 Useless Letters
Do not send letters that will not move the case forward. Telling the husband he is a jerk is not going to bring the case to resolution.
TIP # 46 Preparation is the Key
A successful lawyer is composed of 90% preparation and
TIP # 47 Don't Get Personal
We act on behalf of clients who have a lot of emotions tied up in ending their relationships. Maintain a professional and objective outlook on the client's problem and be sure to distinguish between the client's position and that of your own. You are a buffer which means you should never get personal with the lawyer or other client.
TIP # 48 Losing One Family For Another
If you get too caught up in your family law practice, you may find that your own relationship will fall apart. Set your priorities and do not forget the important things in life.
TIP # 49 How Many is Too Many?
If you have a busy family law practice, to provide your clients with good service you cannot have too many files. Taking on more work results in a slower practice, a relearning of the facts of each file and disgruntled clients. It is better to take on fewer files and deal with them appropriately and quickly to have them settled and move on.
TIP # 50 Early Four-Way Meetings
Consider scheduling a four-way meeting as early as possible in the course of a file. It allows candid discussions of the issues and it shows the other side that you are not really out to get them.
TIP # 51 Offers to Settle
When taking over another lawyer's file, be careful of offers to settle that may still be open for acceptance. This includes formal or informal offers to settle.
TIP # 52 Send Client Copies of Everything
It is surprising how many lawyers do not send their clients copies of everything on the file. If you send or receive a letter, complete a memo to file or receive disclosure, all of this can be easily forwarded to your client for information purposes. It shows the client that you are working on their behalf (even though they do not see you doing it) and keeps them informed. Further, this avoids the problem later on if the client complains about the bill saying they did not know what was happening.
TIP # 53 Know the Limits
It is always a fine line when a party opposite threatens to "pull the plug" unless certain demands are met. Sometimes giving your client advice that, although the legal position of the client is strong, practically it could result in the client receiving nothing. Try to figure out the real limits and then learn to accept them.
TIP # 54 Two Lawyers are Better Than One
Consider having a policy in your office that requires certain important documents that leave the office should be checked by two lawyers. Documents to be checked would include Prenuptial Agreements, affidavits, letters to the court or written arguments.
TIP # 55 Checklist When Opening New Files
When you open a file, place either a detailed checklist or a draft Separation Agreement on the file right away. These kinds of checklists or precedents can act as a detailed way to ensure all aspects of the file are covered and avoid leaving out essential terms when the parties reach settlement. Settlements can occur at the strangest times. The absence of a checklist in the file means that the parties may leave out important clauses such as who gets what contents, how pensions are to be dealt with, etc.
TIP # 56 Pension Statements Don't Tell the Whole Story
Pension statements received from employers are often insufficient in the information provided. For example, in some pension statements, there is an indication only of the employee contributions and not those from the employer. In that particular case, employees' contributions might be 5% and the employers' are 9%. Demand proper disclosure from the pension plan administrator.
TIP # 57 Paperless Debts
Be vigilant in asking your client about those all-too-common paperless debts. These are usually loans from family members which occurred during the marriage. At the time of the separation, parties may forget about them. However, after the settlement is achieved, the creditor may seek legal action to enforce the debt that was formerly forgotten about.
TIP # 58 Will You Have a Will?
At the very first meeting, stress the importance that despite a separation or divorce, the Will your client has may still be effective and the ex-spouse may still receive an inheritance from your client. It is a good idea to explore whether the client should have a new Will, Living Will or other similar document. They may also need to be reminded that they should change the beneficiary of their life insurance and RRSPs. The lawyer who fails to do this will not only be liable to his client but to potential third-party beneficiaries who are within the ambit of the risk and known to the lawyer. It is incumbent upon you to make sure that your client understands the estate consequences of separation and divorce, including the implications of keeping property in joint tenancy.
TIP # 59 Child Abduction
Although a court order should contain a police enforcement clause dealing with custody and access matters, such a clause in an order granted in one jurisdiction may not necessarily be enforced in another jurisdiction. Normally, the order from one province needs to be registered in another province, at substantial cost. Here is a tip: the police have some discretion and often some cajoling and dialogue with police in the foreign jurisdiction may get the police to apprehend the child. The child can then be returned.
TIP # 60 Child Abduction and Air Canada
The RCMP with Air Canada have a Missing Children's Program whereby parents can obtain free air travel for themselves and the child. If the child is inappropriately taken, the parent can travel to the foreign jurisdiction and return back to the home jurisdiction with the child, all free of charge through this program.
TIP # 61 Public Seminars
Hold public seminars on areas you have knowledge in. This allows other people to meet you personally and see that you would be a good choice for a lawyer.
TIP # 62 Your Reputation is Your Best Friend
Lawyers can develop reputations which can help or hinder their career. It only takes one strike against a lawyer to ruin an otherwise unblemished reputation. Always take the high road. Do not let the client talk you into being uncooperative or antagonistic with the other side. It will not advance the case and it may only serve to hurt you in the long run.
TIP # 63 Personality Testing
Before hiring a lawyer or support staff, consider conducting a personality test. This helps reduce the risk of hiring inappropriate staff.
TIP # 64 Computer Programs
Family lawyers have become accustomed to using computer programs such as ChildView or Divorce Mate. These programs will be almost mandatory to any lawyer working in this field in order to properly calculate spousal support. The proposed spousal support guidelines will rely heavily on these programs.
TIP # 65 Blackberry
Many lawyers have cell phones or personal digital assistants. These two items have been melded into one and you can now have a Blackberry which acts as a phone, an e-mail device and a calendar. It keeps you in touch with your clients all the time.
TIP # 66 Read "Eats, Shoots & Leaves"
Like it or not, lawyers are in the business of negotiating with others and words are the tool of our trade. Educate yourself on the English language and the use of punctuation. A recent, fun book to read is called "Eats, Shoots & Leaves" by Lynne Truss (2004, Gotham Books). The book is about punctuation and the number of errors people make in the English language. Read the book and improve your skills.
TIP # 67 Preamble in Orders
Preambles in orders should specify background information relevant to the Order. For example, children's names and birthdates, the incomes and occupations of each of the parties or a history of the application is useful, particularly when a variation or review is sought at a later date.
TIP # 68 COLA Clauses
Cost of living adjustment clauses have fallen into disfavour as a result of the Federal Child Support Guidelines. The reason is that the Guidelines are intended to be revised annually based on the actual incomes of the parties and the specific section 7 expenses of the children. However, there is no reason to preclude the use of a COLA clause in an effort to minimize conflict and reduce legal fees for the parties in the future. A clause such as the following might be valuable:
It is ordered that the child support payments shall be increased on the 1st day of ____________ in each year that the child support is payable, by a percentage equal to the percentage increase in the annual cost of living for the immediately previous year, calculated for the province of ________ as determined by the Consumer Price Index as published by Statistics Canada. Such increase shall be cumulative from year to year, with the first adjustment to take place on January 1, ________.
TIP # 69 Get Real in Affidavits
Be cautious when drafting affidavits. Lawyers may fall into the trap of permitting their clients to misstate or overstate facts in their affidavits. Those sworn facts can be used effectively against that party in either cross examination on the affidavit or cross examining at trial.
TIP # 70 Simple Language in Affidavits
Use simple language when drafting affidavits. An affidavit of a construction worker using language crafted by the lawyer does not ring true to the judge's ear.
TIP # 71 Affidavit Drafting Tips
Most lawyers are not very good at drafting affidavits. They can recite the facts and sometimes erroneously sneak in a bit of argument, but on the whole, the affidavits are not very well done.
- Use Headings
Divide up your affidavit into understandable pieces and follow the headings with information pertinent to that particular issue. It is easier to follow; it is easier to understand.
- Tell a Compelling Story
The affidavit should reach out to the reader (the judge) and tell a story that screams out for justice to be done. When you read a well-drafted affidavit, you will know it. Keep a copy of that affidavit and use it as the proper method to draft affidavits. Show junior lawyers how to do it right.
- Responding Affidavits
Respond to other affidavits by telling your own story. Do not say "in response to paragraph 15 I say that…". Tell your own version of the events and weave in responses to the other party's affidavit. This makes for much more interesting reading and it is certainly more compelling.
TIP # 72 Constructive Trusts
Constructive and resulting trusts are generally used in arguments when the parties were not married and there is a claim by one party to obtain property from the other. Your Minutes of Settlement should include a waiver of any subsequent constructive or resulting trust claims. This is particularly relevant where the parties lived in a common-law situation prior to being married. Without the clause, it could be argued by one of the spouses at a later date that the Minutes of Settlement dealt only with the matrimonial regime, and property acquired prior to the marriage is also now divisible.
TIP # 73 Prenuptials
Prenuptial Agreements, Cohabitation Agreements or Marriage Contracts are extremely complicated and bear considerable risk to the drafting lawyer. For example in a Prenuptial Contract, if the parties agree to a certain waiver and later that waiver is held to be invalid, the losing client may well look to the drafting lawyer for compensation for a job poorly done.
TIP # 74 Negotiate That Prenuptial
When negotiating a Prenuptial Agreement, Cohabitation Agreement or Marriage Contract, it is far better to start that process by negotiating the agreement in a four-way meeting. You should never send a draft written agreement to the other side before you have had a chance to explore the nuances with the other lawyer and the other party.
Generally speaking, lawyers who receive draft Prenuptial Agreements or Marriage Contracts meet with their client and explain how unfair or how unreasonable the agreement is. While they may be doing their job and fulfilling their professional obligations, this kind of conversation leads to significant misunderstandings and promotes distrust between the parties who are about to marry. A better approach is to negotiate at a four-way meeting. It may well be a good idea for the parties to exchange some ideas about what could be contained in the contract, but it should be made clear that these are preliminary thoughts and that the issues and concerns of both parties should be thrashed out at a four-way meeting. A draft written agreement forwarded without warning to the other side is the best promoter of early conflict for the parties.
TIP # 75 Negotiating Any Agreement
Every agreement in family law should contain a clause indicating that the agreement was prepared jointly by both lawyers. It is necessary to make it clear that both sides participated in coming up with the agreement and that it is not to be construed against one party or the other if there are any ambiguities. Furthermore, parties will more likely abide by an agreement reached together and the lawyers will both agree to terms which they were instrumental in drafting.
TIP # 76 Releases From Debts
If the parties agree that one person will be assuming a certain debt, try to make the agreement conditional upon getting releases directly from third-party creditors in favour of the spouse who is not responsible for the debt.
TIP # 77 RRSP Provisions
Parties frequently use the rollover provisions of the Income Tax Act to deal with RRSPs as part of a settlement. The purpose of the rollover is to prevent any tax arising on the transfer of assets. You need to be careful about what kind of RRSP is being rolled over. You need to make sure it is not a locked-in plan since that is a substantially different animal than an RRSP that is unlocked. You need to look at the assets that are being rolled over to make sure that they can be dealt with by the recipient and that there are not adverse costs consequences to disposing of them within the RRSP. If possible, the exact nature of the RRSP and the RRSP asset should be included in a schedule to the clause that deals with the RRSP rollover.
TIP # 78 Don't Forget These Assets
In addition to the usual assets, there are some interesting areas you should remember to canvass with your client:
- Frequent flyer points;
- Credit card points;
- Hotel programs;
- Exclusive department stores;
- Country club memberships/initiation fees;
- Built-up equity in an auto lease;
- Season tickets to sporting events, theatre etc.
TIP # 79 Indemnity Provisions
Indemnity provisions in agreements are usually useless. It is not uncommon for the parties to agree in a separation agreement that one party will indemnify the other against certain debts. Of course, if that party goes bankrupt and those debts are outstanding, the remaining party will be responsible for them. Accordingly, before accepting any indemnity, your file should record an effort by you the lawyer to obtain a release by having the other side make the necessary arrangements with the creditor to release the spouse. Indemnity agreements frequently fail and they should only be taken as a last resort.
TIP # 80 Paper the Deal
When an agreement is reached after a four-way settlement meeting or on the telephone with opposing counsel, it is important that the details of the settlement be put down on paper immediately. It is so often that differences of understanding occur and the settlement is thereafter negated. Take the time to write it out and confirm it with the other side. The extra effort is worth it.
TIP # 81 Scribble an Agreement
Whether at a four-way settlement conference or in court, after the parties have reached a deal, as a minimum counsel should draft a handwritten agreement settling the terms. There is nothing more frustrating than second thoughts after a deal was concluded but not papered.
TIP # 82 Get Outta Here
Take holidays and get out of the office. Plan them in advance so you have something to look forward to. You will be more productive when you get back.
TIP # 83 Schedule Exercise
Actually schedule your time for exercise and keep to it. You will feel better; you will have a better outlook and your endorphins will put you in a better mood!
TIP # 84 Take A Break
At least at the end of every three-month period, take a week off.
TIP # 85 Snooze Time
Get a couch, close your door, turn off the phone and have a snooze in the afternoon.
TIP # 86 Stress Busters
Read articles on reducing stress and balancing work and life. Start here.
TIP # 87 Second, Third or Fourth Lawyer?
If you are the second or third lawyer on a file, watch out! Clients are often shopping for lawyers who will agree with their position rather than listening to the advice given. A good rule of thumb: multiply your retainer by the number of lawyers previously on the file.
TIP # 88 No Freebies
A few years ago, lawyers used the "free initial consultation" as a method of getting clients in the door. However, clients have become more educated and they often use this time to shop around for different lawyers, never intending to use your initial consult for nothing more than personal information.
Get into the habit of charging for all of your consultations for clients. If you are going to meet with a client and give them advice, they deserve full attention and enough time to allow you to provide accurate advice. Charge for this; it is worth it.
TIP # 89 Record Your Advice
At your initial client meeting, consider recording the advice you give to your client and then providing that recording to the client at the end of the meeting. The client then goes away with tangible advice they can listen to later in case they forget what you told them.
TIP # 90 Get Paid
Two rules to remember:
- Always get the money up front.
- Always have a signed retainer agreement.
TIP # 91 Discount Your Time?
Keep track of all time and you can use your discretion when billing whether it ought to be reduced.
TIP # 92 Discount Your Bill?
Agree to discount your bill if it is paid in full within a certain period of time. Particularly if it is your final account, offer a small reduction for quick payment.
TIP # 93 Using Credit Cards
Get Visa and MasterCard capability for the payment of your accounts.
TIP # 94 Marketing To Other Lawyers
A specific marketing niche available for some lawyers is to offer their expertise to more junior lawyers for a fixed fee. This might involve two or three hours of time working on a particular matter to help a junior lawyer with an application, a specific legal issue or an appeal.
TIP # 95 Guerilla Tactics on Getting Paid
Marla Miller, QC, from Edmonton, and I prepared a paper called "Guerilla Tactics on Getting Paid". It contains lots of tips on how to avoid collection problems and ensure that you get paid as a family lawyer.
Lonny Balbi, Balbi & Company Legal Centre, 1501 MacLeod Tr. S, Calgary, AB T2G 2N6 e-mail:firstname.lastname@example.org.
Over the years, I have kept notes of practical suggestions I have received from lawyers. The genesis of each of the ideas comes from all of these giving individuals and I wish to acknowledge and thank them all. Any errors in these materials are entirely because of me.
First, thank you to all of the contributors, including:
Gerald Ashcroft, Brent Barrilla, Pam Bell, Julia Cornish, Rowan Davison , Jean Dawe, Martin Dreison, Ron Dumont, Robyn Elliott, Phil Epstein, Stephanie Fabbro, Shayne Fairman, Carrie Foerster, Grant Gold, Drew Gunsolus, Ceri Harden, Thomas Harding, Patricia Hebert, Judith Huddart, John G. Illingworth, Sheila Jennings Linehan, Elaine Keenan-Bengst, Karen Kear-Jodoin, Angela Kerr, Mark Knox, Elise Lavigne-Bruchet, Mark Lecovin, Jean McBean, Heather McGee, Betty-Lou McIlmoyle, Marla Miller, Doug Moe, Karen Muir, Ellen-Anne O'Donnell, Damian Penny, Ron Profit, Eugene Raponi, Diana Richmond, Allan Rowsell, Pamela Stewart, Wendy Stewart and Debra Van Ginkel .
Next, thank you also to my assistant, Veronica (Ronnie) Beaulieu, for her organization, typing and editing skills. Thank you as well to Melinda Topilko, for her hard work in making the final product a joy to read.
LONNY L. BALBI, QC
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