The day that you most dreaded in your divorce has come—the receipt of your attorney’s billing statement. After having put it aside, and having found ten other things to open in its place, you are left with the one, unopened envelope, bearing your attorney’s logo, and certainly carrying no news of anything good. You carefully open the envelope; you are surprised by how many pages fit into that one envelope. Unfolding the pages of the billing statement, there it is for you to see: every single minute spent on your case, either detailed so precisely, you find it irritating that your lawyer would have been so picayune, or detailed so generally, you cannot understand how that much time was purportedly spent, doing so little. And what is the only thing missing? The majority of your initial retainer.
As a St. Petersburg practicing attorney with 26 years of experience in the Tampa Bay area of Florida, the last twenty years having been spent in family/criminal and personal injury law as Attorney Hanks, P.A., I am here to tell you that I take no greater interest or appreciation in creating that billing statement, than you did to open and read it. And not matter how much I prepared you for this moment when you first read and signed my fee agreement, you likely did not realize the math involved: .10, the lowest hourly percentage for which most attorneys will bill, when applied to a $275.00 hourly rate, equals $27.50. Ouch. Read your letter to me? $27.50. Sent you that email? $27.50. That time, last week, when you called me to ask about your hearing date? $27.50. And that is just at that hourly rate. Applied to the higher hourly rate of attorneys in bigger cities or in bigger firms, those small activities could run $35.00 each ($350.00 per hour), $45.00 each ($450.00 an hour), and so on. How quickly then, will your retainer be exhausted?
So, how can you prevent this? What can you do? My first suggestion, at least if you are not already in an hourly billing arrangement, is to ask your attorney for a flat fee quote, for part or all of your case. This is not as unusual as it may sound. Criminal Defense fees are standard flat fee arrangements. Personal Injury and Probate fees are usually flat fee arrangements as well, though these will be based on a percentage of the recovery or the amount of the assets. Professionally, I have had my fill of hourly billing arrangements, even in family law cases. No client wants to see how much I am charging for an email response and I do not want to account for every email I send a client. In this age of electronic communications, many of emails are sent when I am out of the office, either in Court waiting for a hearing, in a break between depositions, or even out to dinner with my family. To have to account for them the next day or days after, becomes a burden.
For the attorney, the basis for a flat fee in a family law case, whether the case is a divorce, child custody, child support or paternity case, is the same as the basis for a flat fee in a criminal case. Each case is going to have the same initial, basic components, and the same, initial procedures. For my clients, in a Florida family law case, these are the pleading stage, the exchange of mandatory disclosure (financial documents), and the attendance at an initial, family mediation conference. I know the amount of time each one of those actions takes, both before in preparation, during, and upon its conclusion. No matter what the dynamics of the case, these three elements will be present. For the client, the flat fee is somewhat of a relief. They know that their case, at least up to a point, will cost “X” amount of dollars. I say up to a point, because mediation may not settle all of the issues in a case. Depending on what issues are left over to be tried, then different amounts of time will be needed to bring the case to a conclusion. But even in those situations, I will try to provide my client with a flat fee quote for their representation beyond the mediation, and through a trial.
But what if you are already in under an hourly billing arrangement, how do you get the most out of your retainer?
1. Understand The Billing Arrangement. Recognize that you are under an hourly billing arrangement. Recently, I had a divorce client, who had received a billing statement tell me, “I didn’t know you billed for emails or phone calls.” Well, most family lawyers do, as our time I one of the things we are selling. Whether we spend ten minutes in a phone hearing on your behalf, or ten minutes answering your email, the cost is the same. Therefore, clients should only contact an attorney, when he or she absolutely needs advice or information. If you call me to ask if there is anything new in your case, I will be happy to tell you that there is no new update to provide you, but I have to charge you for having had that phone conference.
2. The Minimum Fraction of Time: Keep in mind what I wrote earlier, that the minimum slot of time for which an attorney will generally bill you, is .10—six minutes or one tenth of an hour. If you send me five separate, short emails to review, you will spend much more of your retainer than you would have spent, had you sent me one longer email to review. The same applies to phone calls. Ten phone calls over two weeks, will cost much more than one longer phone conference, or even an office conference.
3. The Attorney’s Assistant or Paralegal. Whenever possible, is to speak to the attorney’s assistant or paralegal, instead of the attorney. My hourly billable rate in St. Petersburg, Florida, is $275.00 an hour, but I bill my paralegal at $75.00 an hour. If you want to confirm your hearing date or time, you can get this information from my paralegal at a much better rate, than getting me on the phone. Now this will not work for anything that requires legal advice or consultation. In those instances, the paralegal should put you through to the attorney, but you will then get billed for having spoken to both. However, for any time that you are simply seeking procedural information, contact the paralegal or legal assistant. He or she can inform you just as easily as the lawyer can, and at much less of a cost.
4. Follow instructions. This would seem to be unnecessary to relate, but I have found this is the source of the greatest increase in billable time, and the greatest reduction of a retainer. It is, though, quite basic, and at the heart of any successful representation. Comply with your attorney’s instructions. When your attorney asks you to provide certain documents, provide them. I have had clients who have refused to provide many of the financial documents necessary for mandatory disclosure (tax returns, bank statements, etc..), on the belief that those records are either not relevant to the case (Florida’s financial disclosure requirements are the same—whether it is a new divorce or a modification of an older custody judgment), or the client believes the records should not be seen by the other party, for the sake of confidentiality. This leads to additional and unnecessary communications with me or my paralegal, then to letters and motions to compel filed by the other side, and finally to an actual hearing, so that the client can be told by the family law judge, what I have been telling him or her all along—provide the documents. And at that point, the client has not only run up his or her own legal fees, but now may be subject to paying the other side’s attorney’s fees, for having to take that step. It is simply a waste of a retainer, and potentially hampers the progress of the case on the actual issues such as alimony, child support or child custody, if the client has to raise more money to continue the representation.
If you follow these steps, you can guarantee you will make your own legal representation more affordable and more effective. And as a result, you will be more satisfied with your attorney, and more likely to refer a friend with a divorce, time-sharing or other family law case. So, both you and your lawyer come out ahead.
Mark Hanks, Attorney Hanks, P.A.
Your Family Attorney
St. Petersburg, Florida