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 The Family Lawyer/Civil Litigator Team: A New Style of Dissolution Trial Practice
Why We Hired A Civil Litigator A lawyer client engaged us to handle his dissolution of marriage. This case involved an overwhelming number of complex legal and financial issues. Each legal issue and each party presented potential areas of appeal. Each party was prepared, both emotionally and financially, to litigate every issue and appeal if necessary. The case would require a 30 day trial. The amount of burdensome discovery, intense legal research, document control, and case management required by this case monopolized our family law practice. Family law practices generally do not have the resources to manage mountains of discovery or to be absent from our other clients for extended periods of time. Our client persuaded us to hire a civil litigator as co-counsel to manage the litigation portion of the case. We selected a civil litigator, formed a specialty trial team, and ultimately achieved a successful result for our client. We decided to hire a civil litigator when we determined that settlement negotiations had failed. Negotiation sessions, which included four lawyers, two forensic accountants, and a private judge, proved fruitless. One of the clients even refused to attend one of the settlement meetings. The complexity of the issues both legal and financial, mired the settlement process. The other side, who perceived our client as holding all of the key information, relentlessly demanded documents and information. Our client felt out of control and abused by the process. A lengthy and complicated trial loomed. Our client interviewed several civil litigators and ultimately selected Mr. A of firm X. Mr. A, backed by the resources of a large civil litigation firm, immediately assembled a team, created a "war room," and propounded systematic, aggressive discovery. The discovery included noticing twenty-two depositions, numerous Inspection Demands, Special Interrogatories, and Requests for Admissions. Mr. A and his associate devoted their full attention to discovery and litigation tactics, which allowed us to focus on the substantive family law issues and to attend to our other clients. The pace and style of the case changed. The other side now had to respond to the mounting discovery and to prepare for depositions. They responded by hiring a civil litigator. Settlement finally seemed attractive to them and the case settled just three months after we hired the civil litigator. Our client is pleased with the result and felt empowered by the process. From a cost benefit analysis, the cost of the civil litigator was far less than the projected cost of 30 days of trial. The comments of the players in our case follow. Mr. A-Our Civil Litigator Mr. A believes the civil litigator brings something special to the table in the form of a "fresh look." Family lawyers have a standard method of doing cases and can benefit from a different perspective. He likes to look for "visceral pressure points" to get the case to a place where the opposing attorney would rather not try the case. Having tried a lot of jury cases, he feels he can get to the heart of the matter. He feels that the combination of a family law specialist and civil litigator makes a strong team. The civil litigator is equipped to do massive discovery. He uses this approach (lots of discovery) not to bully or be wasteful but to bring the case to conclusion faster. The total immersion in the case, which civil litigators have the capacity to do, gives the client a sense of confidence that the case is under control. Our Client Our client was very pleased with the final result (a rare and wonderful event!). He believes family lawyers are focused on compromise and settlement rather than trial. He believes such a mindset generally works fine, but in a case where the other side is bent on litigation, he believes you are disadvantaged if you do not fully develop your case for trial. He further believes the family law bar operates in a collegial way extending common courtesies. Civil litigators, in his view, are more willing to "take the gloves off." From a cost-benefit point of view, our client benefited by bringing in the extra litigator. By having both an experienced family lawyer and an experienced litigator he felt that he had the best of both worlds. Much of the work was routine which the civil litigator is well equipped to do. Setting twenty-two depositions was possible with the big firm support but would not have been possible using the family law firm given the time constraints. Family law practices, by their nature, are smaller, "boutique" practices which work fine, except in fact-intensive "mega cases." In Mr. A's view, cases of this size and potential duration require a large civil litigation firm as co-counsel. Lawyers who practice in general litigation firms are more likely to know and be known, by the non-family law judges, and since large cases, at least in certain counties, may not be tried by family law judges, it is an added advantage to have a civil litigator on the team. Opposing Counsel Ms. S of firm Y, San Francisco, was our opposing counsel. She believes that family lawyers think of themselves as generals marshaling the troops to complete the case management. We use forensic accountants, real estate appraisers and all kinds of experts. The civil litigator is another expert resource we should consider. The civil litigator brings an added dimension to the case. These specialists make full use of all the discovery tools, probably more so than most family lawyers. For example, civil litigators often use Requests for Admission, which are not commonly used by family lawyers. There is the cost of orienting the civil litigator to the case and particularly to the family law specialty area. Ms. S suggests that this kind of "team practice" style of litigation could turn out to be an interesting sub-specialty for a few civil litigators. In our case, Ms. S noticed a big change in the tenor of the case when the civil litigator arrived. All the discovery rules became very important, unlike most family law cases. Once you have made a commitment to a civil litigator, you have committed to a trial. There is little chance of turning back (unless of course, you settle). Ms. S observed a dramatic increase in the volume of her work once the civil litigator came on board. The cost of the case skyrocketed, making it hard to ascertain if this approach is cost effective. If the case goes to trial, it is valuable to have the civil litigator on board because of the volume of work and the devastating impact a major case can have on the typical small family law specialty firm. Comments by Other Family Law Practitioners One experienced family lawyer with whom we spoke is concerned that civil litigators tend to "rev up the litigation." Family lawyers are more oriented to settle. The reality is that family lawyers are not set up to manage huge cases. We typically practice in small offices and carry a substantial case load. To take on such an enormous case can wreck the balance of one's practice unless extra help in the form of a civil litigator is engaged. Our colleague's practice is to not accept the assignment of a major complex case without the client's commitment to hire a civil litigator. The further reality is that the major case tends to go to the most senior family lawyers who have done a number of these cases and do not want the burden of doing all the time-consuming litigation work, especially discovery, without some assistance. Our colleague worked with a civil litigator from a local litigation firm and was pleased with the relationship. He concluded that, on balance, the family law specialist is more important than the litigation help in the ultimate outcome of the case. One problem he identified was the inherent incompatibility of style between civil litigators and family lawyers. Civil litigators tend to be aggressive. Family lawyers, by nature, do not prosper and do not have their needs met by the civil litigator's aggressive style. The major advantage of bringing in a "real" litigator is that they typically work only on one or two major cases at a time so they are free to immerse themselves completely in the family law matter, a luxury that few family lawyers enjoy. A danger in this team approach is a constant conflict in tactics. Who is the boss and who decides what tactic is best? Family lawyers often pride themselves in their ability to impart a special and individual style of practice to each of their cases. It is not possible to do that with this new team approach. The case which attracts the civil litigator to the team is the one about more than pure money; it is about anger, revenge and perhaps response to an overcontrolling spouse. This team approach is not a trend. It will apply only in those few major cases too large for family lawyers to handle on their own. Our colleague's opposing counsel also worked with a civil litigator. This was a huge case and having a civil litigator as part of the team was absolutely essential. The family lawyer wrote the briefs and ran all the family law aspects of the case. The civil litigator was lead counsel on all litigation issues. This allocation of responsibilities worked well. Cost was not an issue and having the large firm back up for the extensive discovery was extremely helpful. According to the family lawyer, we do not spend enough time in the court room to be fully competent in major case litigation; it was therefore, extremely important to him to have someone who was completely familiar with all the technical rules of discovery in this case. As an aside, he observed that being in trial for six months is a good way to wreck the rest of your practice. Another family lawyer we questioned had one experience with a civil litigator in tandem with a family law practitioner. In that case, the other side brought in the civil litigator and he responded by bringing one in as well. He was very unsatisfied with the experience. He felt the case became way too expensive. He believes he can handle the discovery and related problems in a big case without the need to bring in a special litigator. Another attorney we talked to told us that he likes using civil litigators, provided he remains in overall charge of the case. He cited one bad example when he was brought into a case by a civil litigator who remained in charge. In that instance, nothing worked well. The major advantage of teaming up with a civil litigator is the ability to turn over the discovery to them. Also, having a civil litigator on board gives the family lawyer a chance to play "good cop" to their "bad cop." Civil litigators generally have no interest in child custody so the family lawyers will keep those issues. The dual team approach can be very costly. A current case involves over $1 million in fees on each side. At least two of the attorneys we spoke with believe that it is difficult to analyze the cost/benefit, but they like the process because it makes it possible to represent the client fully and effectively. One attorney suggests bringing in the civil litigator early in the case to do all the motion and discovery work. This approach allows for the family lawyer to focus on the substantive issues in the case. Conclusion Our conclusion is that for the unusually large case that does not do well in our current system, adding a civil litigator is a good bet. There are several things to watch out for:
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