Mother's Milk of Divorce Litigation: The High Attorney's Fees
By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol. 16, No. 3)
San Bernardino County: The Hon. Frederick A. Mandabach
"But it too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice." Robert H. Jackson, Hickman v. Taylor, 329 U.S. 495, 514-515 (1947).
Also too often overlooked is what it takes to keep that indispensable lawyer and his law office going: getting paid. As Justice King states in In re Marriage of Hatch (1985) 169 Cal.App. 3d: "Banks and finance companies are licensed for the purpose of lending money; lawyers are not...Money is the mother's milk of more than politics". Id., at 1218 fn 2; 1221.
How do lawyers get paid? We get paid by our clients, if we are lucky. We get paid by the other client, if we convince the judge that it is appropriate, necessary, and immediate. How do we do that?
Also too often overlooked is the fact that some lawyers actually ought to be dispensable in order to actually administer that ephemeral justice. In other words, do judges routinely or ever sanction bad conduct? Does professional conduct really count?
Let's hear from the judges.
Do judges understand the finances of a private practice?
San Diego: When I was appointed to the bench, I had had 23 years experience as a family law practitioner. Deukmajian did, however, appoint a lot of people from the District Attorney's office and other public entities. They have had trouble relating to private practice and what's involved. Their background and instincts tell them that attorneys are overpaid and their fees shocking. These judges have no idea of the cost of running of a law office, and know none of the factors involved.
This is changing, especially with the influx of specialists on the family law bench, and the level of instruction given to new family law judges. At judge's college, we find that the new judges have increased their hypothetical fee awards by as much as ten times during the course.
San Bernardino: Family law was my choice of assignment when I took the bench. It was fortuitous, based more on geography than anything else, in that I didn't have a family law background. I have been committed to the practice ever since. The assignment used to be the "short straw", but family court is becoming more popular among judges. A number are coming in with extensive family law backgrounds and are very much aware of the horrendous costs involved in running a law practice, particularly in view of the rising costs of malpractice both in terms of maintaining the insurance and in terms of the costs of defending lawsuits that are on the rise.
In any case, family law judicial initiates hear the same refrain at every conference; they are very much aware of the incredible overhead it takes to run a business. Nonetheless, there are some people who are number oriented and some who aren't - some who are sympathetic to this issue and some who aren't. Frankly, many judges simply have sticker shock on the bench.
What is your personal philosophy about fees and costs?
San Bernardino: There's no judge I know who enjoys adjudicating fees; it's probably the worst part of the job. We all wish we had a better handle on it, wish we had easier and more predictable solutions. Reduced to its simplest form, a fee award requires one person with a visible source and the other with a clear need. But a very good lawyer will make it look like there's no money to fund the case, whether there is or there isn't. You get incredible arguments. The business will always be failing; the professional will always have had a recent drastic downturn in the practice. It is sometimes very difficult to get to the literal bottom of this, but I would consider ordering someone to borrow if this person clearly had the superior ability to obtain and service a loan.
San Diego: It's clear we're pricing ourselves out of business: two thirds of all litigants are propers. The cost of the average case has changed dramatically. We used to think of the average divorce as costing $750: those same cases are now in the $5,000-10,000 range. It's a whole different paperwork practice: forms, computers, complicated written fee agreements, etc.
In the "good old days" when everything wasn't quite as tied to hourly rates, we asked ourselves: what is the case worth? what are we arguing about? It's very hard now. A lot of it is due to legislative efforts to make everything perfect. Ordinary people don't need or want and can't pay for "perfect"; they just need things to work most of the time.
Today, the focus seems to be "I put in the time" without any thought to "why did I put in the time when the case doesn't justify it."
At what stage(s) do you award fees?
San Bernardino: I wish there were a special place in hell for judges who say "We'll work out the details later", and are never around at the end to do that. These judges simply avoid it, but some genuinely prefer to award fees at the end of the case because you can really take a look at the whole picture then.
I have no set "rules" about the stage at which I will award fees. I will order fees at the OSC stage where there is a real need to fund the beginning of the case, and I recognize that the really complicated case will need to be financed as it goes along.
San Diego: My policy is to give fees early and get involved early. If we don't see the problem before the settlement conference, the damage is done. We have designed our local rules to make it difficult to polarize the bigger cases. Clients are vulnerable and fearful in the early stages and don't realize they have alternatives to litigation. We post alternate dispute resolution and mediation resources in the courtroom for clients to see and require a list of resources and an explanation of what mediation is to be sent to both clients with the filed petition.
Do you have a benchmark award?
San Diego: Experienced judges would probably have trouble articulating how they get to a number. You can get $1,000 without a declaration, so I suppose this is a benchmark of sorts. I know that I start thinking in the $5,000 range and up when you tell me custody is involved.
We start with the assumption that each party should pay the same for their attorneys, and that this should come from the community. It is then in their own self-interest to work something out themselves about fees.
Failing that, to get more than the $1,000, you will need to file a good declaration. Start with what the issues are likely to be. Next, the overall value of estate.
Then, the proposed work. Is it necessary? Is the attorney proposing the task known to do this same task in every case? If $50,000 is requested for a,b,c,d and e, and "d" and "e" don't seem to me to be things that need to be done that early, I'm not going to assume the worst and fund this self-fulfilling prophecy.
Who the attorney is factors in. Although this is something not presented much, I will look at the skill, experience and reputation of the attorney. When you see an attorney you know to be reasonable, you give more credence to the declaration. If the person is a specialist who is efficient and known to do a good job, I'll award the fees requested.
San Bernardino: Do I really have a touchstone? Have attorneys figured out that I usually award a certain figure? I would like to think I am thoughtful and thorough and do the rational thing. What I probably do is bracket the high and the low numbers, and work from there.
I've heard about a so-called "two martini" rule - some believe that judges meet over martinis to price-fix - I suppose judges really do have an internalized formula whether a judge is introspective enough to figure that out or not.
Since I think in some degree like the accountant I used to be, I want to see a job cost approach. What did you do, what did it cost, why did you do it, was it unusual, did you have to travel to some faraway place, how can the other side pay?
If I just get some wild number without guidance as to what is appropriate and why, the lawyer hasn't helped me in the least and hasn't helped the client. I don't encourage a spendthrift who is trying to shift costs to the other side. If an attorney requests $10,000 for a hearing that any other attorney could have brought in for $2,000, I'm not going to award it even if the client gets stuck with the bill.
What kind of conduct are you actually going to punish?
San Diego: My pet peeve is bad blood between attorneys. It is easy to hit a bad attorney or the client causing problems hard where the conduct is obvious. We use 4370.6 reasonably extensively.
Who is the problem just isn't always obvious. So often by time we see the case the "good" attorney is so aggravated that he is not rational, is vindictive himself, over-reacts, and is ineffective. This is just what the "bad" attorney wants. The judge who has to listen to this gets disgusted with the whole thing; it becomes much harder to land on the problem when both attorneys are acting out.
Judges are aware that many attorneys push to the absolute limit, just short of violating the law or deceiving the court. It is a feather in the cap of some attorneys to upset the other side. They train their staff to be rude and not put phone calls through, no matter what the other side wants. But if they want something, they have their staff call you every few minutes. It's like chinese water torture or something; there isn't one knock-out blow to punish.
We also know that these attorneys create their reputations on purpose to get clients who demand this demeanor, and that many clients get the attorneys they deserve. Knowing all of this, it is still very difficult to deal with, and you have to look at every case. However, I am more sympathetic to the novice attorney who over-identifies, which usually diminishes with experience, than any attorney who is just plan nasty and irascible.
Beyond courtesy, credibility is your most important asset. Most attorneys have one bite with a judge...if they represent something as true, a judge will accept it as true until burned once. If we find out we weren't told the truth, we don't take their word for anything again.
Another peeve is with attorneys who overconduct their cases. Some fees get totally out of line with what's involved with case. It isn't so much that the attorney is dishonest or difficult to deal with. These attorneys are simply nit pickers, paranoids who tend to treat everyone else like crooks. No matter what information you provide, they always have one more question.
Attorneys can be very self-righteous about this kind of thievery. The fact that the community was worth $100,000 and the fees were $80,000 doesn't relate. The fact is - they did their job as they perceive it. They are never willing to look at the big picture, to cut corners.
On the positive side, if I am managing a case, I will reward attorneys who do cut corners when appropriate, who do save their clients money on fees and costs, who are reasonable, with an "end of the case bonus", which I will justify to their clients at our settlement meeting.
The true grief lawyer who makes life hell will go on doing that no matter what we as judges do; that's a career choice and how that attorney lives with that kind of personality is a mystery.
We know who these people are. When you see them come in the staff roll their eyes. Nothing a judge says prevents people from going into this mode. It is a very unpleasant hearing where people are denigrated on the stand, where attorneys are standing and shouting at each other, and sometimes at me.
There's a sort of a synergy; people wanting to punish their spouses seek out and hire a particular type of attorney because of the attorney's reputation for putting fault back into the divorce. Whether you go to that person because you expect an incredibly aggressive presentation or whether you are counting on your attorney to be vicious, condescending, and humiliating, the result comes out about the same place.
I will also sanction the incredible overuse of discovery, where it looks like the attorney is trying to price the other side out of the courtroom. We all know it when we see it.
Where does the buck stop?
San Bernardino: The buck stops with a good lawyer like it always has.