“Helpful ‘Comments’ for Modification Cases” by Erin F. Duncan was originally published in the Orange County Bar Associations’ The Briefs magazine, July 2016. Republished with permission.
It’s one thing to sit with a potential client and review the issues involved in an initial division of a family’s affairs. It is quite another when the matter is post final judgment — when things haven’t worked out as anticipated at the time of the original settlement or trial. The potential client before you may be your former client, but more likely is another attorney’s former client and he isn’t in your office to tell you how great a deal he made at mediation or what a good job the judge did in determining the distribution of the family finances and/or children’s time-sharing.
What percentage of Florida family law matters are re-opened for modification proceedings? There were 60,830 dissolution and other domestic relations cases (including paternity) filed between January and June 2014. During that same period, 28,370 modifications of the same types of cases were filed.[1] That suggests that in nearly half of our domestic relations cases, we are taking at least a second, if not a third or fourth look, at the true manifestation of yesterday’s legal and judicial efforts to determine the best outcome for our clients (and especially the children[2]) in the hopes of somehow improving upon them. Since this colossal statistic suggests that we don’t get it right the first time in the eyes of at least one of the litigants, there has to be some serious contemplation by the second legal team (hereinafter referred to as “Team 2”) to determine whether or not the perceived dissatisfaction has a legal basis. Post–judgment litigation can begin as soon as the days following entry of the final judgment or may take years to surface. The family law practitioner must be procedurally versed in post-judgment procedure from rehearing matters to appeal, and substantively versed in the various legal standards that each phase requires.
One need not be an economist to understand the phrase “throwing good money after bad” or a student of Roman lore to know the cliché “adding insult to injury[3]” and yet these cases continue to be presented to the court, often without merit. The two may not be related, but hearing time is becoming scarcer while discussion in professional association meetings about the merits of these cases is becoming more prolific. Add in an influx of new attorneys and attorneys dabbling in the area of family law and the modification problem exponentially multiplies. 2015 saw numerous CLE’s from the Orange County Bar Association and brown bag lunches conducted in both Orange and Seminole County, hosted by judges and advanced practitioners, all including reminders and practice tips on the subjects of: motions to dismiss, motions for summary judgment, and even motions for sanctions pursuant to Florida Statutes §57.105. I took away from these meetings a directive to expeditiously deal with modification cases that can’t hurdle the requisite legal threshold in order to preserve judicial resources.
Thankfully, family law attorneys have the Bounds of Advocacy: Goals for Family Lawyers in Florida and the corresponding “Comments.” Every attorney practicing family law should review this enlightening publication and share it with colleagues to educate and refresh memories. It recognizes that the average family law matter goes far beyond the expected issues of the irretrievably broken marriage or the legal determination of paternity and that we are duty bound to be versed in all manner of related subjects[4]. The Bounds of Advocacy recognizes that family law includes elements of tax, bankruptcy, criminal, elder law, and estate planning to name a few. Failure to attain or acquire the vast array of skills (or professional referral network) that family law attorneys must have to effectively practice puts the attorney dabbling in family law, and the client, at a disadvantage for round two of his family law case.
According to the Bounds of Advocacy, a guide that the Family Law Section created, where the proposed modification truly meets the heightened legal standard, counseling and advocacy must in turn be intensified. The prospective client should not be encouraged to “make up for” what he didn’t get the first time and the attorney has the continued obligation to keep the client focused on objectives rather than retaliatory behavior.[5] A client believing he got a bad deal the first time will be more apt to insist on trial or to at least have a day in court to show the judge how [my ex-wife] failed to do any of the things that were agreed upon (or ordered) and [therefore] should be punished! We again must rely on that vast array of skills, or established professional network, to provide counseling, social work, dispute resolution, etc., for our client and maintain the ever-present understanding that in family cases, “cooperative resolution of disputes is highly desirable.”[6] When the client reaches an emotional pinnacle (usually fueled by anger, regret, disappointment, or any combination thereof), as extreme as it may sound, the Comments to Goal 3.5 suggest we may need to consider this client impaired to the extent that he cannot assist in his own case-planning or decision-making.[7] In these instances the personal and professional return on investment for Team 2 is uncertain at best. So, there had better be strong legal facts to make pursuit of modification a worthwhile undertaking for the client.
A Comment to Goal 3.2 states that it is “important for the family lawyer to accurately and thoroughly advise the client and, if necessary, to provide the client with a negative assessment of the case.”[8] The practical reality of modification cases is that they often take more time and resources than the original case and can ultimately cost more than the original proceeding. Additionally, when the modification case involves the resetting of client expectations that were improperly established during the original proceeding, or repair of the legally mishandled original case, it can put the Team 2 attorney in a defensive position. Team 2 has the arduous task of providing sound counsel without undermining previous counsel, the judge, or the system, while possibly also having to point out to the client his culpability in participating, or failing to participate, in his original case.[9]
If it appears that requiring more input and sign-off from clients in original actions would provide some relief, a comment to Goal 3.4 reminds us that we cannot abdicate responsibility for representation to the client, but rather we must share in the decision-making process, each having respective relative input.[10] We still have tough decisions to make and while we would all like to get it right the first time, it is just not always possible. When calendared for a consultation with a potential client already in possession of a Final Judgment, remind yourself that these cases, unlike fine wine, don’t get better with age.
Erin F. Duncan practices family law at C. Todd Smith Law in Baldwin Park, Florida. She has been a member of the OCBA since 2006.
[1] Florida Courts Home Page, Trial Court Statistics Summary Reporting System (SRS), http://trialstats.flcourts.org/TrialCourtStats.aspx (last visited December 1, 2015).
[2] Family Law Section of the Florida Bar, Bounds of Advocacy, Goals for Family Lawyers in Florida Goal 7.1 (May 2004).
[3] Originated from the Aesop’s Fable “The Bald Man and the Fly.”
[4] Family Law Section of the Florida Bar, Bounds of Advocacy, Goals for Family Lawyers in Florida Goal 2.1 (May 2004).
[5] Family Law Section of the Florida Bar, Bounds of Advocacy, Goals for Family Lawyers in Florida Goal 3.2 (May 2004).
[6] Id. at Goal 2.5.
[7] Id. at Goal 3.5.
[8] Id. at Goal 3.2.
[9] Id. at Comment to Goal 3.2.
[10] Id. at Goal 3.4.
