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Robert Gradel Law Blog

robertgradel by robertgradel @
"How many lawyers does it take to screw in a light bulb?" "Fifty four," goes the joke. "Eight to argue, one to get a continuance, one to object, one to demur, two to research precedents, one to dictate a letter, one to stipulate, five to turn in their time cards, one to depose, one to write interrogatories, two to settle, one to order a secretary to change the bulb, and 29 to bill for professional services. (Lawyers Who Heal, Danna Harmon, Christian Science Monitor, July 21, 2004). Hiring a lawyer to do your divorce is sometimes described as putting Dracula in charge of the blood bank, or putting the fox in charge of the hen house. Who really knows if that deposition of the husband's employer was absolutely necessary? Was the jury demand a smart strategy ? How much discovery is enough? Does each side really need their own business appraiser? How many social workers, psychologists and psychiatrists do the children and parties need to see? There has been much debate and discussion over the decades about how the system might be improved and reformed. There is no way to enforce respectful behavior and cooperation between the parties, right?

A Minnesota family lawyer named Stewart Webb is credited with the concept of collaborative law. Texas has one of the most well organized family law sections in the United States, and in 2001 became the first state in the nation to enact a statute implementing Mr. Webb's concept. There has been a great deal of interest in collaborative law, as evidenced by the reporting in newspapers across the nation. A Lexis search reveals over 100 newspaper articles written on the subject since 2000. Collaborative law is now available in 35 states and much of Canada. (Amicable Unhitching, with a Prod, Jane Gross, New York Times, May 20, 2004)

According to a survey by the Collaborative Law Institute of Texas, the average length of time and cost for a litigated divorce is 18 months and $14,300.00, for the average collaborative law case, 18 weeks and $9,268.00 (A Shorter, less Painful Road to Splitsville; More Divorcing Couples Avoiding Court, Embracing Collaborative Law Process, Claire Osborn, Austin American-Statesman, May 10, 2004).

What is collaborative law and how does it work? The statute is located in two places in the Family Code, under Title One, Subtitle C, Dissolution of the Marriage, and again under Title Five, Subtitle B, Suits Affecting the Parent-Child Relationship (belt and suspenders, I guess). First and foremost, it prohibits litigation involving the divorce while the parties are operating under the collaborative law framework. The trial court cannot require pre-trial hearings, docket calls, scheduling orders, impose discovery deadlines or any other device to move the court's docket. The parties have two years to resolve the case under the Texas statute. The parties are required to give the court a status report after one year (6.603(f) & 152.0072(f) F.C.). Collaborative law only applies to family law cases at this time.

How do you keep the lawyers from fighting? In the collaborative law model, the lawyers have a financial disincentive that prevents them from litigating. After the agreement is signed to use the collaborative law statute, the lawyers are prohibited from serving as litigation counsel in the divorce, except for filing the final decree. In other words, the lawyer who represents the wife cannot request temporary orders, injunctions, attorney's fees, appointment of experts or file sanction motions. The wife must find a new lawyer if litigation is deemed necessary. The beauty of the statute is that the husband's lawyer is also out of a job (6.603(b) & 153.007(b) F.C.). The financial incentive of the lawyers is to cooperate, because if they do not, some other lawyer will be putting a new wing on their house with the fee. If one side gets mad and decides to litigate, the other lawyer is out of a job, too. Wouldn't it be an improvement to find yourself in a situation where the other lawyer has an affirmative obligation to provide you with any and all information you need to make a proper evaluation of your case? All you have to do is ask. (6.603(C)(1) & 153.0073(C)(1))

What type of family law cases are appropriate for collaborative law.? The short answer is, all of them. There is no reason why child custody, relocation and complex property cases would not be appropriate. What type cases are inappropriate for collaborative law? Cases involving abusive spouses (substance/mental/physical) are usually not appropriate for this model. It will be difficult for the non-moneyed wife to compel her husband to give her 75% of the total assets without the threat of a trial. It is always possible to resolve such a case in a collaborative law setting, but generally, if there are bad facts or if a disproportionate share of the marital estate will be demanded, collaborative law may be a waste of valuable time and money. The ideal client for this process is one who is better educated, more sophisticated and affluent. Those clients can make informed decisions with your help and are the ones who will benefit the most from collaborative law. If the lawyer or the spouse on the other side cannot be relied on to follow through with their ethical obligation to cooperate and disclose, you might think twice about using this format.

How do you get started? You can't use the collaborative law until you educate yourself. Once the lawyer is knowledgeable, the client can be educated about the process. The opposing counsel should be contacted to see if they are familiar with the process and are willing to participate. Once the collaborative model is chosen, an agreement is signed. There is a good form available in the Family Practice Manual 2nd Ed. from the State Bar of Texas. The lawyers must change their attitude from aggressive litigator to that of a counselor. Not only does each side not get their own appraiser, the rules prohibit dueling experts (6.603(c)(3) & 153.0072(c)(3)). The professionals hired are employed by both parties whose job description is to be fair to both sides.

Are you often wary of your opponent, thinking that if you forget to dot an "i" or cross a "t" that the other side will make you pay? That conduct is prohibited in collaborative law. There is full disclosure in collaborative law. Discovery requests are to be answered promptly and in good faith. There is no "laying behind the log" waiting for an opportunity to blind side the opponent. Your opposing counsel is required to treat you with respect and help you move the case forward. The anecdotal evidence from those using collaborative law in their practice is that the parties are happier and the lawyers are sleeping better. If you have a case that might be appropriate, give it a try.
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