In family law, don’t focus; use a wide-angle lens
Joseph Trotti.
There’s truth to the adage by renowned education administrator Nicholas Murray Butler, “An expert is one who knows more and more about less and less until he knows absolutely everything about nothing.” Some lawyers are becoming increasingly specialized to carve out their niche in the legal field. Opportunities for specialization continue to crop up, with growing need in areas like cannabis law, for example.
This may work for some areas, but after nearly 40 years in practice, my advice is this—in family law, don’t focus; use a wide-angle lens.
Polymath perspective
Matrimonial and family law encompasses a wide range of issues that families face. A family law attorney’s work mostly consists of the obvious ones: division of assets, child custody and visitation, termination of parental rights, abuse, relocation, etc. But what many attorneys fail to comprehend, in my experience, is that family law invariably touches upon other areas of law, and it’s important to have at least a rudimentary knowledge of them or collaborate closely with colleagues and other professionals from those fields.
These other areas include tax law, real estate law, business and corporate law, labor law, pension obligations, and trusts and estates—to name a few. To overlook these when representing a client is to potentially do them a disservice. In extreme scenarios, it might even lead to malpractice.
For example, in the state of New York where I practice, in a divorce or separation, the parties divide property under the equitable distribution law. Although equitable does not mean equal, in many cases, certainly in long-term marriages, the parties do equally divide their assets. For an attorney to properly advise their client, they must be able to evaluate these assets. The issue of values arises more than one would think.
Say the couple owns two parcels of real estate appraised at the same value—without an understanding of real estate law, how can the attorney factor in the tax basis for the properties? Or the capital gains that may be imposed on a commercial property as opposed to a marital residence? What is the equity in each of the properties? Is either income-producing? Are there mortgages in both names, which must be modified or satisfied in the event of settlement? Has a title search been conducted to verify that there are no judgments, liens or other encumbrances that might prevent the delivery of a clean title? The attorney would be remiss not to address these things.
Similarly for tax law. Sometimes—oftentimes—what appears to be a simple tax clause in the stipulation of settlement could be a trap. Does the attorney know the difference between having one be declared head of household as opposed to taking the dependency exemptions for the children? Is there a value to one party or the other taking these credits? Is that a negotiable item so the parties equalize their benefits or obligations? Has the tax impact on the retirement accounts been examined? Tax ramifications and continuing obligations post-settlement are crucial.
A new family law attorney can shadow colleagues from other practices and learn from them, or at least meet with them periodically to ask questions. CLEs are a good source. So are former law school professors. The more initiative they show, the better.
Advocate and adviser
Family law attorneys must also possess a wide range of skill sets. If contractual lawyers are trained to be meticulous, and litigators are trained to be assertive, a family law attorney must be both. They need to be a fierce advocate as well as a realistic adviser to their client.
And they must be both from day one. Attorneys are mostly concerned with the preliminary conference with the court, understandably so, since that’s when the issues are addressed, and the discovery and trial schedule is set. However, I believe that at least as important, if not more so, is the initial intake meeting with the client. That’s when they need to clarify for the client all the rights, obligations and issues of the case and manage their expectations regarding the process and, importantly, the financial and emotional cost of obtaining their goals.
At the same time, the attorney must be ready for trial from the get-go. It’s not just that defending their client’s rights and interests is their duty, it’s that being prepared for trial usually helps reach a settlement quickly, because the opposing counsel and the judge see that the attorney is prepared.
COVID-19 considerations
The most obvious consequence of the pandemic for lawyers has been virtual conferences with the courts. These continue despite the fact that the courts are increasingly requiring in-person appearances. They have their pros and cons—an essay for another day—but they throw into sharp relief the importance of practicing family law with a wide perspective.
An attorney has a more limited amount of time to emphasize the significant issues in a case and what they are doing to resolve them—usually a hard 30 minutes, significantly less than in-person. They have to get to the point quickly, without the lead-in, and present their points in descending order of importance to make sure the salient ones aren’t left out (or if they can’t, because the case is too complex or nuanced, ask for an in-person conference). It’s therefore crucial to include any vital issues that may fall outside family law, like the ones I described earlier.
The significance of being prepared both to settle and try the case cannot be underestimated. It’s up to the attorney to move the case toward resolution. Even a court that’s not pressuring the attorneys to resolve the case will ultimately focus on the issues. If an attorney is constantly prepared for both trial and settlement, the court will ultimately put pressure on the opposing council. It can even impose sanctions, council fees, etc.
What makes family law so interesting is how dynamic and evolving it can be. Legislation and application change rapidly, and there’s always something new in another field that has a bearing on it.
This, coupled with being able to resolve family disputes and restore people’s lives, it is endlessly rewarding. But to do a good job, the attorney needs to have a wide view of it.
Joseph Trotti is a partner at Vishnick McGovern Milizio in New York, where he heads the matrimonial and family law practice. He is the founding partner of the VMM Family InstituteSM, which applies collaborative law principles to domestic cases. He is also a key member of the surrogacy, adoption and assisted reproduction and LGBTQ representation practices. He can be reached at [email protected].
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