The Journal of The DuPage County Bar Association

Back Issues > Vol. 28 (2015-16)

Reflections on Practicing Family Law for More than Three Decades
By David N. Schaffer

This article is written with the hindsight of one who has practiced predominantly family law for the last thirty-one years. It is offered as a guide to help the newer legions of lawyers entering the practice. It has always been this author’s preference to have, on the other side of a case, a seasoned lawyer. Consider this article a dash of parsley, sage, rosemary and thyme. Probably less than ten percent of the tips provided in this article are original. Rather, they have been acquired from mentors and such. Let us begin.

Read the Directions. People used to watch movies on their Video Cassette Recorders (VCRs). The standing joke would always be that the hardest part of using a VCR was to set the time on them. This author would always impress friends and family by seeming to effortlessly set the VCR clock. When someone asked how one acquired the skill to perform such a feat, the answer was simple: “read the directions.” Whether setting the time on a VCR, or practicing law, the rule is the same. Read the directions. It’s all there. The codes, the rules, the statutes. These are an attorney’s equivalent to a surgeon’s scalpel.

At least once a year, sit down and read all applicable sections of the Code of Civil Procedure, Rules of Evidence, Supreme Court Rules, as well as the entire body of family law statutes. You will be amazed at what you will discover about what the truly correct way of doing things entails. Following this advice should make transitioning to the new 2016 family law statutes a breeze. The plethora of lectures and articles about all the changes, and how they will affect ones practice are helpful, but the best way to understand the new laws is to simply read them, from start to finish. In other words, read the new directions and you will have mastered them.

The Phone Is Mightier than the Pen. It is common knowledge that relatively new lawyers like to be in court as much as possible. If they want to accomplish anything, they feel they must draft and present a motion or petition of some sort. Need a continuance? Draft a motion. Need more time to file a responsive pleading? File a motion. With time one learns, before drafting a motion, to simply pick up the phone and call the other attorney. As long as the requests do not become abusive, there is a good chance he or she will consent to entry of an agreed order granting the additional filing time, or continuing hearings on a motion. Pick up the phone before the pen.

We Are All on the Same Side. Clients come and go, but we will all still be practicing law together. Be valiant warriors for your clients but remember the opposing party is not your sworn enemy. Let your client know this from the start. Otherwise, he or she may get upset when they see their attorney getting along and chatting with their spouse’s attorney in the hallway. Explain to the client that, as attorneys you are the warrior in court, but it is also necessary to have a congenial relationship with the other party’s attorney. Bottom line, let the client know there is a better chance of a case getting settlement favorably, with less fees, if the attorneys are not at each other throats all the time.

For this section this author feels compelled to name attorney Joseph Mirabella for learning this rule. This author will always remember when, as a new attorney, finding himself with Joe on the other side of a heated case, hearing him say to the effect “I like attorneys. We need to all be able to get along.”

Don’t Be a Cheap Lawyer. The frequency of complaints and “beefs” is inversely proportional to an attorney’s hourly rate. If a client thinks he or she has a cheap lawyer, the client will treat him or her like a cheap lawyer. This does not mean one should overcharge. But it does mean that one should survey the market and establish a fair hourly rate. One should never get in the habit of reducing one’s hourly rate to get retained. Keep in mind that the potential client is seeking to have a warrior to fight for them. If asked to discount your rate, remind potential clients of this. Then ask if they want their attorney to discount the quality of service to be provided. Would one even think of asking their doctor, dentist, or surgeon to discount their charges? Likewise, avoid representing family or friends. First, they will probably be expecting a discount rate, and second, the relationship will never be the same, even after the case is over. If asked, tell the neighbor, friend or relative that you will be happy to give them recommendations for a good lawyer to represent them.

What Come Around Goes Around. This should seem to be common sense. Don’t take a hardnosed approach to one’s opponent’s reasonable requests for continuances or to extend deadlines. Guaranteed you will be the one requesting such professional courtesies in the future. Of course, an attorney needs a client’s approval before entering into any agreed order. Just explain to the reluctant client that if the other side is forced into motion practice to obtain the continuance, etc., they most likely will get it. The only difference is needless time and fees were incurred, and the judge now sees your client as being unreasonable. That explanation usually gets the client to consent to entry of the agreed order.

If You Are Important then You Should not Have to Tell Anyone. Always keep an open mind and be willing to learn new ways to practice your chosen profession. No one truly likes a cocky know-it-all attorney, especially judges and other attorneys. In reality, rules, laws, and procedures are always changing, so one cannot truly “know it all.” One who remains humble will find many people wanting to help them, even with little tips or suggestions. When appearing in a new county, or before a different judge, don’t be afraid to ask the judge’s clerk or other attorneys in the courtroom about a procedure or custom for that venue that you may not be aware of. Every courtroom has its own nuances. And sometimes one will find their client has researched a new approach to their matter, etc. Keep an open mind. Listen. Grow your knowledge.

A Judge Does not Run His or Her Courtroom. Sooner or later one learns that it is the judge’s clerk that runs the operations of the courtroom. That way, the judge is free to concentrate on being a judge: hearing evidence and making rulings. But the judge’s clerk can, justifiably, make your time in court easy or hard. Know that they truly would like to make your time easier. Therefore, one should not hesitate to politely and respectfully ask the judge’s clerk for direction on procedures, scheduling, and the like. Remain humble and respectful, and the judge’s clerk will sometimes be willing to make copies of an order, lend you their stapler, or help you find a particular order.

That said, one should never forget that the area where the judge’s clerk operates is that clerk’s office. You should think how you would feel if someone came to your office and grabbed things off your desk, or leaned over making demands. Finally, one should know that the judge’s clerks are in constant communication with each other. Have no doubt that they trade notes and comments about each and every attorney who regularly appears in their courtroom. As in all aspects of the practice of law, your reputation will follow you wherever you go.

Attorneys Do not Run their Office. Their staff does so that the attorney can focus on practicing law. As with the judge’s clerk, be respectful to law office staff, be it your own, or your opponents’. They are on the front lines and the good ones take great pride in the work they do. They are the ones whose shoulders one’s clients will cry on, field concerns that the client would not feel comfortable sharing directly with their attorney, turn a phone call into a successful booking, etc. Therefore, make sure you hire top staff from the beginning and treat and compensate them accordingly. And as with the judge’s clerks, one’s reputation – good or bad – spreads fast within the support staff network.

Conclusion. “Find a job you love, and you will never ‘work’ another day in your life.” It is hoped that this article helps in making the reader’s time being a lawyer less stressful, and more enjoyable. Bottom line, always remember the practice of law is a privilege. Always approach that privilege with humility, dignity, and respect, and you might just find yourself loving what you do.

A Fellow of both the American and International Academies of Matrimonial Lawyers, David Schaffer concentrates in domestic and international matrimonial and child custody cases. His firm, Schaffer Law, Ltd., is located in Naperville. In addition to the DCBA Editorial Board, he is a former Chair of the ISBA Family Law Section Council and served as its newsletter editor. David currently sits on the ISBA’s International and Immigration Law Committee.

 
 
DCBA Brief