Screening and taking the case

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 195-230

SCREENING,

TAKING THE CASE

3-1

CHAPTER 3

Screening and

Taking the Case

QUICK VIEW

Just as the family court system in Florida is in a state of evolution, so too should the lawyer’s approach to inter-

viewing and accepting the representation of a client be evolving. The family lawyer is assumed to adopt new

guidelines and principles, a foundation for def‌ining and implementing a model family court where therapeutic

justice is a key part of the family court process. Therapeutic justice is a process that attempts to address the

family’s interrelated legal and nonlegal problems to produce a result that improves the family’s functioning

after a dissolution of marriage. This requires the family lawyer to focus on a process that will empower families

through skills development and assist them to resolve their own disputes rather than resort to the courts to make

decisions for them. To achieve those goals, the family needs access to appropriate services and a variety of

dispute resolution forums where the family can resolve problems without additional emotional trauma. This

chapter focuses on practical aspects of implementation of these goals from the beginning of the initial client

interview. The family lawyer must have new education and focus and provide new education and focus to the

client from the beginning of the case.

There have been and will be signif‌icant on-going changes in the practice of law due to technological advances

within the court system, particularly the advent of electronic f‌iling and the Florida courts’ efforts to provide the

public with electronic access to nonconf‌idential court records.

TABLE OF CONTENTS

I. INTRODUCTION TO CLIENT AND CASE

A. Initial Contact With Prospective Client

§3:01 Telephone Intake Data

§3:02 Anticipate Client Offense

§3:03 Emphasize No Representation Until Retainer Agreement Is Signed

§3:04 Obtain Referral Source

§3:05 Determine Prospective Client’s Emotional Stage

§3:06 Payment From Someone Other Than Client

§3:07 Conf‌licts

§3:08 Follow-Up

§3:09 Taking Case and Client Close to Trial

§3:10 Non-English-Speaking or Illiterate Client

SCREENING,

TAKING THE CASE

Florida Family Law and Practice 3-2

B. Initial Conference: Preliminary Discussions

§3:20 Be Selective in Choosing Clients to Meet for Initial Conference

§3:21 Whether to Represent Petitioners or Respondents

§3:22 Assign Prospective Client Initial Tasks

§3:23 Information Form and Nonrepresentation Notice

§3:24 Setting Stage—Focus on Client With No Interruptions

§3:25 Short “Mutual Admiration”

§3:26 Unbundling of Legal Services

§3:27 Educate Client About Emergencies

§3:28 Outline Emergency Process and Procedures

§3:29 De Minimis Assets and Expenses

§3:30 Educate Client About Shared Parental Responsibility

§3:31 Social Media

§3:32 Requests for Accommodations by Persons With Disabilities

§3:33 Impact of Duty of Candor

C. Determining Whether to Take Case

1. How Many Lawyers Has Client Had Already?

§3:40 In General, Decline “Used” or “Damaged” Client

§3:41 Considerations in Taking “Used” or “Troubled” Client

2. Evaluate Client’s Credibility and Witness Potential

§3:50 As Witness

§3:51 Credibility

§3:52 Deal With Client’s Fear of Legal Process

§3:53 Consider Client’s Disabilities

3. Consider Other Factors

§3:60 Compare Merits of Case With Client’s Expectations and Goals

§3:61 Consider Your Cash Flow and Timing

§3:62 Evaluate Opposing Counsel

§3:63 Evaluate Judge

§3:64 Consider Rosen Factors and Sanctions

4. Rate Client

§3:70 Think Hard Before Taking Certain Kinds of Clients

§3:71 Raising or Lowering Your Fees Based on Client’s Rating

§3:72 Tell Prospective Client Why You Are Declining Representation

§3:73 Taking Client With Poor Rating on Trial Basis

D. Discussing Fees and Costs

§3:80 Be Honest

§3:81 Explain That Estimate Is Not Guarantee

§3:82 Require Written Fee Agreement and Retainer

§3:83 Taking Credit Cards for Payment of Fees and Costs

§3:84 Billing

§3:85 No Charge Short Summary Correspondence to Accompany Each Bill

§3:86 Keep Emotionally Impacted Client Informed and Involved

§3:87 Tackle Consents and Mandatory Disclosure Immediately

§3:88 Explain That You Will Withdraw if You Are Not Paid

II. CONSULTING ABOUT CASE

A. Begin With Modern Family Law Philosophy

§3:100 Focus on End Result

§3:101 Focus Client on Win-Win Rather Than Win

§3:102 Focus on Interests Rather Than Positions

§3:103 Emphasize That “Going to Court” Is Last Resor t

§3:104 Impar t Philosophy of Family Court

§3:105 Technology and Electronic Filing Will Drive Future Change

SCREENING,

TAKING THE CASE

3-3 Screening and Taking the Case

B. Gather Information

§3:110 Begin After Client Signs Agreement and Pays Retainer

§3:111 Memorialize Interview

§3:112 Protection for Client and Lawyer for “Extreme” Relief

§3:113 Emphasize Conf‌identiality at All Stages

§3:114 Use Directive Interviewing

§3:115 Listening Skills and Listening Procedure

§3:116 Ask How and Why Client Came to You

§3:117 Ask What Client Wants and Why

§3:118 Ask What Spouse Wants and Why

§3:119 Evaluate Impact of Emotional Stages on Parties’ Interests

§3:120 Advise Marriage Counseling and/or Divorce Counseling

§3:121 Advise Client About Normal Reactions of Children

§3:122 Be Honest and Do Not Boast

§3:123 Interview Checklist

C. Provide Information

§3:130 Begin After Preparing Client for Win-Win Solution

§3:131 Florida Law and Peace

§3:132 Apply Law to Facts

§3:133 Discuss Alternative Courses of Action and Consequences of Each Course

§3:134 Alternative Dispute Resolution

§3:135 Reality of Family Law Litigation

§3:136 Releases, Authorizations, and Assertions of Privilege

§3:137 Immediate Personal Concerns

§3:138 Open-Ended Inquiries

§3:139 Electronic Filing and Sanctions

D. Organizing Client

§3:150 Client ’s Own File

§3:151 Client Information Packet

§3:152 Mandatory Disclosure and Financial Aff‌idavit

§3:153 Interventions

§3:154 Hiring Experts

III. INVESTIGATION AND CLIENT PROTECTION: TRUST BUILDING,

ADDRESSING PROBLEMS, OR ELIMINATING “RED HERRINGS”

§3:160 Address Lack of Trust Between Parties

§3:161 Child Issues

§3:162 Abuse Issues

§3:163 Child Abuse or Child Sex Abuse

§3:164 Situational Domestic Violence

§3:165 Traditional Cycle Domestic Violence

§3:166 Stalking and Harassment

§3:167 Substance Abuse Issues

§3:168 Unfaithful Relationship

§3:169 Signs That Spouse May Be in “Secret” Relationship

§3:170 Wiretapping and Eavesdropping

§3:171 Obtaining and Securing Records and Memorializing by Video

§3:172 Insurance Issues

§3:173 Wills and Trusts Issues

§3:174 Property Issues

§3:175 Tax Issues

§3:176 Client’s Business Irregularities

§3:177 Relocation Issues

§3:178 Paternity Disestablishment