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Friday, January 18 , 2019, 11:05 pm | Fair 50º


Brian Burke: About Your Divorce (Letter 45) — Lawyer Chosen; Strategy Discussed

Dear Pinky and Spike:

Ralph wanted a couple of days to decide on a lawyer, but he didn’t get them. The morning after his interviews, he got a telephone call at work. The man said he was calling on behalf of Ms. Heep to notify him that there would be an ex parte hearing in Judge Maryland’s courtroom at 4 p.m.

Ralph had the presence of mind to ask, “What day?”


“For what?”

“If you give me your email address, I’ll send you the moving papers right now.”

Ralph gave him the information and quickly received the legal documents. They made no sense. One set of documents notified him of an “ex parte hearing” at 4 in the afternoon. He looked up the term “ex parte” and found that it meant “for or by one party.” How could there be an “ex parte” hearing if he and Rebecca’s lawyers were both there? Then there was a request to advance a hearing on an “Order to Show Cause re Spousal Support.” Finally, there was some nonsense about Rebecca’s need for immediate cash in order to pay credit card bills and attorney’s fees.

Distraught, he called Costanzo & Gaunt — not because he had decided that they would be the best lawyers to represent him, but because they seemed the nicest. Plus, they were the only ones to give immediate attention to the “Williams case,” so he figured they would be more willing than the others to take his case on such short notice. He called their office and got Jennifer Gaunt.

“Mr. Robinson, of course it’s upsetting to be subjected to this sort of thing. To help you, I need to know what documents you have received even if they make no sense to you. Start by telling me what each sheet of paper says.”

“I don’t know where to start. They’re hardly in English.”

“Mr. Robinson, I will know what they say if you tell me what they are. If it is a court form, there will be a number beginning with the letters FL in the upper right corner. Find the number and tell me what it is. At the lower right corner there will be a page count that will say something like page one of four. That will tell you the length of each document.”

“That doesn’t help. The first document is not a court form; it’s this crazy application for an ‘ex parte hearing’ that tells me to be in court today. Obviously, Ms. Heep will be there so, if I show up, how can it be ‘ex parte’?”

“Very good. That’s a local usage and you’re correct. What we refer to as an ex parte hearing really isn’t. We can talk about that later. For the documents that are not court forms, read to me the footer on each page.”

Ralph proceeded to read through the stack of papers one by one, just as Jennifer requested.

After Ralph finished, Jennifer said, “Mr. Robinson, this is a typical Heep move. It is much ado over nothing, and it should be very annoying to the judge. So here are your options: You can go to the hearing without a lawyer. It won’t be fun, but there is nothing significant at stake. Another option would be to engage us as your attorneys of record. If you want to do that, we expect to be hired to handle the entire case. We are not available to defend against this motion and nothing else. Of course, you could also engage another lawyer or another firm. Finally, by phoning around, you may be able to find a lawyer to handle this one hearing for you. I don’t know anyone who will do that but, with enough calls, I think you could probably find someone.”

Ralph said, “I can’t spend the day on the phone trying to get a lawyer I don’t know to represent me at something I don’t understand. And I don’t know if the other lawyers I’ve interviewed will take my case on such short notice. So I guess it has to be you.”

Jennifer Gaunt replied, “I feel honored to be employed by someone who is so discerning. Now, you need to know that we don’t work for free. Ashley and I have talked about your case, and the legal issues are almost nonexistent. However, with Heep on the other side, there will be issues, and we won’t engage with her unless we are assured that our bills will be promptly paid in full.”

Ralph interrupted, “I always pay my bills.”

Gaunt continued, “Have you ever received an incomprehensible bill from a hospital?”

Ralph said, “Yes, I just send it on to the insurance company.”

“Mr. Robinson, our bills will be as ugly as the ones you get from a hospital — but there will be no insurance company to pay them. We expect to be paid as soon as the statement is prepared. This means we will require a substantial retainer, which we will hold in our trust account. We will pay ourselves on a monthly basis. If the retainer runs out, we’ll need another of the same amount. At the end of the case, we will refund any money we are holding for you in the trust account.”

“How much?”


“$50,000? I don’t have $50,000.”

“You’ll have to find it if you want us to represent you.”

“Where would I find it?”

“Do you have credit cards? Do you have an employee credit union?”


“Get the money from cash advances on the credit cards and take out a loan from the credit union.”

“You want me to borrow to pay you?”

“Do you expect us to borrow to pay our business overhead and our personal expenses for the honor of representing you and the pleasure of having a case with Heep on the other side?”

“OK. I’ll do what I can.”

“Mr. Robinson, if you choose us, fax all of those documents to me right now and be at our office at 3 — with the entire fee. If you’re short by a dollar, you keep your money and go to court on your own.”

“I didn’t think you would be this harsh.”

“You’re funny, Ralph. I need to respond to whatever they are doing so get copies of those documents to me within the next 15 minutes and be here at 3.”

After faxing the documents, Ralph walked to the employee credit union and found to his relief that he could borrow $50,000 interest only for five years. He signed a note and was given a check. Mission accomplished, and it was only 11 a.m. He would leave for the lawyers’ office at 2:45 p.m., so he had time to work for almost four hours. Right. He had almost four hours to obsess about his case.

It wasn’t until he was driving to the lawyers’ office that he thought, “Rebecca wants $50,000, and I don’t think she’s entitled to it. The lawyers say she isn’t entitled to it. Yet, it looks like it’s going to cost me $50,000 to save $50,000, and I’m sure they’ll tell me that there is no guarantee of winning and there is no guarantee that their fees will be limited to $50,000.”

When he got to his lawyers’ office, his expectations were surpassed. He read over the engagement agreement. No guarantees as to result, cost or duration. The last sentence in the paragraph took his breath away: “Because your income is so much higher than Rebecca’s, you will almost surely be required to pay at least some (and possibly all) of Rebecca’s attorney’s fees.” Ralph signed the agreement as eagerly as one signs “Instructions to physicians.”

Once the Engagement Agreement was signed, Jennifer said, “Ralph, pull yourself together. We’ve got some work to do and only 45 minutes to get it done. I need your attention.” The first thing he noticed after signing the agreement was that now he was “Ralph” instead of “Mr. Robinson.”

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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