When a Complex Case Lands at Your Doorstep
Previously published in the Connecticut Law Tribune
May 15, 2016
The big case you have been hoping for (and dreading?) comes in the door. The client has signed the retainer agreement. You now have on your hands a complex dissolution of marriage, involving high net worth spouses, perhaps a post-nuptial agreement or a multi-generational trust, off shore assets, and other assets and contingent liabilities that are difficult to ascertain or value and a compensation package that is opaque and mind-numbing. Perhaps, as well, your client is the traditional non-moneyed spouse who has little working knowledge of the financial structure of the marital estate.
While we know that more than 90 percent of family cases will settle short of trial, that does not mean counsel can count on the case to settle. The best way to sell your client short or get caught short-handed yourself is to not prepare a case for trial. You will find yourself convincing your client to settle simply because you are at a disadvantage from failure to prepare, or, standing up in court at the time of trial clueless and unprepared. Both spell disaster for your client. Instead, you should prepare a case diligently for it increases the likelihood that you will settle with a better result, or, you will present your client's case faithfully and professionally at trial.
Counsel who are retained for complex matters must not treat them like a garden variety case. Immediately upon taking the matter in, thoughts should turn to what experts will be needed to advise the attorney and client, what experts will be needed for the trial, what appellate issues are likely to arise, who should be retained as appellate counsel and at what point in the proceeding.
What are complex matters? At a minimum, complicated compensation packages, asset holdings that are not vulnerable to easy computation of value, division or allocation of ownership, or assets that are outside the jurisdictional reach of the court all are facets that will provide difficulty for you in navigating a matter to successful completion. Complex matters include cases where key witnesses are in other jurisdictions and will resist submittal to Connecticut service of process. The age and health of the parties may factor into the complexity of the matter; you may be assisting your client with estate planning as much as a dissolution of marriage.
Analyzing a matter when it is new to you can be difficult. Typically, your client is absorbed with the emotional aspects of the break-up, focused on what went wrong and each party's role in the marriage. The initial interview by you is important to tease out of the client sufficient information to assist you in forecasting where land mines may lie. It is after this meeting that you should immediately prepare to either seek co-counsel or gain assistance. Discovery should commence early. Without the appropriate expertise you will not know what to ask and ask for. Do not fall into the trap of sending out the most comprehensive set of interrogatories and requests for production without being sure they include the targeted inquiries you need for the complexities of this case. It would be unfortunate for your client for you to discover late in the process that you never asked the right questions and now subsequent discovery is objected to as burdensome and harassment. Care must be taken from the beginning of the matter, not when you discover you have a mess that you cannot quite understand, that finds itself taking new shape every time you try to gain some command of it.
Many young or inexperienced attorneys bluff their way through a short calendar hearing, self-congratulating themselves when they survive it. The pendente lite hearing is strategically important in the life of a difficult case. Opposing counsel may use the opportunity to test your resolve or your client's presentation as a witness. Serious appellate issues are often initially primed in pendente lite proceedings.
Your first complex case should not be the crucible upon which you learn by way of example, not meant to be exhaustive: trusts and estates, the intricacies of tax law and tax court decisions, how incentive compensation can be varied, contingent, divided (and yes, again taxed), what unconscionability means in the world of post-nuptials, where and how to obtain and work with local counsel where out of state discovery is contested, and how to queue up and protect your client's appellate issues (which may be crucial if your client's ultimate day in court is either awful or so good that the other side has no choice but to appeal). The relationships necessary for this client must be built now, long before the client walks in the door.
Select the experts you trust, want to work with and who will mentor you so that your first complex case is not your last. You should have a go to tax advisor, forensic accountant, appellate lawyer, T & E expert, and more. Think about who has taught continuing legal education courses, what appellate lawyer has shown success in reported decisions, who your colleagues from law school rely on as their 'go to' advisors. Most of our lawyers went to law school here in Connecticut". Do not hesitate to look up a favorite professor, seeking referral to experts and mentors. Above all, you should think about whether you want, for your very first case that seems overwhelming, to invite in a mentor to co-counsel with you. The notion here is to not be either short-sighted or too self assured. Many experienced attorneys are generous of their time. It is the ultimate compliment to a colleague to be asked to help another attorney. While that is the person you may wish to consult with, perhaps the relationship should be formalized for this matter, as either co-counsel or a formally retained consultant. Once again, you should not be learning by trial and error on the back of your first client. Let this client be your best ambassador for attracting future clients.
Lynda B. Munro, Connecticut Superior Court Judge (Ret.) is a member of Pullman & Comley’s Alternative Dispute Resolution (ADR) practice focusing in resolution of family and civil disputes. Campbell D. Barrett, chairs Pullman & Comley’s Family Law practice and focuses primarily on matrimonial and appellate matters.