No Lawyer? Or Just Any Lawyer?
Published to: 000111, 000114, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on September 13, 2011 11:38 pm
|Grey Hair is Sometimes a Good Thing|
Recent events have taught me again that going to court without a lawyer is foolhardy. I was reminded recently that going to court with the wrong lawyer can also have devastating results.
A. FIRST MISTAKE; NOT HAVING A LAWYER AT ALL:
1. Woman driver is followed down a long, winding WV rural road by “good ole’ boys in a truck on her back bumper.
2. She searches for her turn, finds it, puts on turn signal and realizes the guy behind cannot stop.
3. Woman swerves to the right, as, to her surprise, does the pick-up truck behind the dump truck, which strikes her in her side, forcing her over an embankment.
4. She gets herniated disk and $70,000 in medical bills! This is called a “permanent injury”; serious stuff.
5. The dump truck driver, his passenger, and the pick-up driver all agree that “the woman driver” slowed abruptly and caused the collision. Of course that is not true. The collision occurred because two cars were tailgating! But it takes some “lawyering” to establish that.
6. The woman, believing propaganda about not getting a lawyer because they file “frivolous lawsuits”, delays hiring a lawyer. She comes perilously close to missing the two year statute of limitations, is forced to file the suit she wished to avoid, and she and her lawyer now must try to track down the tailgating truck driver because he had no impact and was not cited.
7. She was a day away of losing a $250,000 claim. In retrospect, it is a no brainer that she should have had counsel just a few days after the collision. Only then can the lawyer collect the evidence, identify parties, and begin to build the claim professionally. Now, the contingent percentage will be higher, documentation will have to be compiled for the last two years, and the job will, simply, be harder.
B. SECOND MISTAKE: DELAYING GETTING A LAWYER OR HAVING THE WRONG LAWYER:
1. Former wife signs agreement and transfers custody of child to her former husband. She keeps their little boy. He accepts their girl.
2. Each make about the same money over eight years and each provides support, housing, etc. for the child in her and his respective custody. If Court calculated child support, NEITHER PARTY WOULD OWE THE OTHER CHILD SUPPORT.
3. Father, with no lawyer, fails to get court approval of the agreement.
4. Mother then sues father for $75,000 unpaid child support, relying on a clear court order that he was to pay it!
5. Father hires a young attorney from a good firm who urges him to cough up $40,000, in compromise or risk the $75,000 judgment. Father almost mortgages his house, just to get it over!
6. Instead, Father retains an experienced lawyer who understands “equitable estoppel” (see next post).
7. Mother ends up waiving the entire claim and giving up custody of the younger child too.
8. At first, the husband needed an attorney to tell him to get the custody transfer approved by the court. Otherwise, unless there is a “good reason” otherwise, a monthly child support order is treated as a “decretal judgment” each month a payments come do. The first lawyer couldn’t identify the “good reason”, but the second lawyer, having taken similar issues to the WV Supreme Court of appeals, could. The difference is something called “experience”.
C: THIRD MISTAKE: HAVING AN INEXPERIENCED LAWYER:
(Do not get me wrong; young lawyers can have brains, passion, energy, and compassion. We were all young lawyers once. Such lawyers need a good mentor, watchful judges, attentive clients, and a bit of luck. This is just an argument for having a lawyer who has been those things, learned from practice and mistakes, and kept that passion and compassion. 3-6-2012 j.b.h.)
1. In custody negotiations, the mother is pressured to give the pushy, controlling, father to share with him much more time with children than WV law would give him.
2. She refuses.
3. But, Mother has young, inexperienced, counsel.
4. Mother’s lawyer fails to explain to Mother that under WV law the father will get, if there is a contested trial, approximately the same percentage of time with thier child as the percentage of “caretaking functions” he performed during two years before separation. In this case, he did at best 20% of the caretaking functions. Normally, such a father would be awarded every other week-end, one evening after school, a few weeks in summer, and shared holidays.
5. Father offers, if she will agree that he can have children 40% of the time, instead of the 20% the law would give him, and to pay her child support as if she had the 80%. In WV law, that is called “basic shares formula”. That offer gave Mother approximately $250 more per month more than “extended shares formula.”
6. Mother, who does not know about the “caretaking functions” law, partially because she needs money, agrees, and the Court approves their parenting plan including the extra child support.
7. Less than a year later, Father, who makes $21/hr. gets a $9.00/hr. raise, up to $30/hr.
But………………….you won’t believe it! He files for REDUCTION OF child support and is granted a $150/mo. reduction! She and her young lawyer is dumbfounded but puts off the appeal too long and misses the thirty day appeal deadline. Sadly, without a properly drafted Parenting Plan Agreement, the appeal probably would have been lost too.
8. Mother finally goes to experienced lawyer and learns, to her chagrin:
a. That she had been entitled to full custody and full child support and did not have to negotiate away that precious time.
b. That because of the percentage of overnight time she gave up, if she desires to move from WV, for better job (to go with new husband to another state for example) she may have to leave the children with their father! (In another case, Mother agreed Father could “temporarily” have the children a few extra days a month for one school year while she got her nursing degree, only to learn too late that he was able to get this “de facto” plan approved by the court, costing her $500/mo. in child support. She would have known this if she had a lawyer. These stories make me ill every time I hear one. 3-6-2012; j.b.h. )
c. Because her lawyer forgot to get father’s promise to pay the extra child support in writing, it cost her client at least $10,000, and 500 days with her children over the next five years!
d. Finally, because the lawyer failed to explain certain issues involving custody and parental rights to the Mother, she was at risk of losing substantial, additional parenting time the next time they went to court.
e. Some of these cases are irremediable, but many can be salvaged. Having the right lawyer can save you much worry and delay, and money too.
You can still find a good lawyer from friends of the community and by studying with some care on the internet. I write extensively on these subjects so you can read as much as you want, learn on your own, and hire me if you like my philosophy and approach. I look forward to meeting you, your friend, or your loved one. They can learn some things about my attitude and approach at my blog, www.burtonhunteresq.blogspot.com , and about my experience and qualifications at my website: www.hunterlawfirm.net .
This post was written by Burton Hunter