Litigation Pros | Litigation Cons |
| • Take Advantage of the Court Protections | • If Served you Have no Choice and must Participate |
| • The Court Process is Available to Everyone | • Forced to Work on the Court's Deadlines |
| • Have an Advocate on your Side | • Displaying your Disputes Publicly |
| • The Court Deadlines can Keep the Case Moving Forward | • More Expensive than Mediation or Collaborative Law |
| • Court may not Completely Address Complicated or Unique Issues |
Below we have provided answers to many of the common questions that we are asked about Individual Representation. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
Individual Representation is the best way to describe our relationship with clients that hire us to advocate for them as their attorney in a family law action, such as a Divorce or Paternity action. When you hire us as your counsel we consider it our duty to provide more than just litigation skills. At Kelsey & Trask, P.C. we provide our clients with information, support, and confidence, in addition to our litigation experience.
Family Law is the area of the legal practice that addresses the legal needs relating to your family relationships. This includes Adoption, Guardianship (both of adults and minors), Pre-nuptial Agreements, Divorce, Paternity, 209A Restraining Orders, and Post-Judgment litigation such as Modifications (of custody or support) and Complaints for Contempt. When disputes arise relating to any of these types of cases, you can choose to hire either an attorney to represent you individually in court, or a mediator to assist both parties in reaching an agreement, or a Collaborative Law attorney to represent you in reaching agreements out of court.
Hiring an attorney to represent you in your family law case can prevent costly mistakes. If you sign agreements you do not understand, you will still be stuck with the consequences. For example, in cases that could involve future alimony, or complicated income or business issues, the choices you make now could create lifetime obligations. We guide our clients through the court process ensuring they understand the documents and agreements they sign, or the consequences of seeking the opinion of a Judge at trial.
It is not ethical or practical for a lawyer to represent both parties in a Divorce or similar action. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.
Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.
We often counsel clients who are participating in Mediation in order to ensure that they complete the court paperwork correctly, and that they fully understand the consequences of their agreements. Many mediators will encourage their clients to consult with an attorney at least once regarding their Separation Agreement to ensure they understand what rights they might be giving up. It's important to understand that a mediator does not represent either party's interest and is not in a position to tell you if you might be agreeing to something that is not in your best interest.
At Kelsey & Trask, P.C. it is our belief that every case can be settled, and we are always considering the various options that can lead to a mutually agreeable settlement. In many cases the costs of litigation (both emotional and financial) far outweigh the benefits that will be received by "having your day in court." In much the same way that mediation can give people more power over the process of their divorce, settlement provides both parties with an opportunity to have a say in how their case is settled. In contrast, when a Judge decides the details of your case your life is in the hands of a stranger.
Because settlement takes the cooperation of (and often compromise from) both parties, settlement is not always possible. In those cases when settlement is not an option, we have the experience necessary to appropriately and aggressively litigate your case.
On May 1, 2009, the Supreme Judicial Court of Massachusetts expanded the Limited Assistance Representation program (hereinafter "LAR") to include all trial court departments. At Kelsey & Trask, P.C. we recognize that LAR gives us the opportunity to provide "unbundled" services to clients at a Flat Fee, which can be a great service for clients of limited means.
Limited Assistance Representation (also called "unbundling") allows a lawyer to provide partial services to a client, limiting the attorney's representation to only a specific matter while the client manages the remainder of the case. In Family Law, this often means that the lawyer either assists in the preparation of court pleadings, but doesn't go to court, or agrees to only go to court for specific events. Limiting services in this way allows for greater predictability in the amount of time an attorney might spend working on your case. This predictability allows us to provide a Flat Fee for many family law related services.
Hiring an attorney to represent you in your family law case can prevent costly mistakes. If you sign agreements you do not understand, you will still be stuck with the consequences. For example, in cases that could involve future alimony, or complicated income or business issues, the choices you make now could create lifetime obligations. We guide our clients through the court process ensuring they understand the documents and agreements they sign, or the consequences of seeking the opinion of a Judge at trial. LAR allows you the option of hiring an attorney for advice, or limited appearances without having to incur the cost of an attorney for your entire case. In many circumstances this also allows the attorney enough predictability to be able to provide a flat fee service, something that is otherwise typically unusual in divorce litigation.
Every case is different, and although our hourly rate is standard, it is very hard to know how much time a particular case will take especially in divorce litigation which often involves high emotions. The LAR program allows us to limit our representation in a way that allows greater predictability in the amount of time we will have to spend on your case. After consultation regarding the type of services you want to limit our representation to and the complications involved in your case, we are usually able to provide a flat fee that we are willing to work for in those circumstances. If you then decide to hire us for further services we can agree to work on an hourly basis or work out a new flat fee for those additional services. In each case, a Limited Assistance Retainer Agreement will be signed by both the attorney and the client, specifically stating what services the attorney is to provide and what portions of the case, the client intends to perform on their own.
The LAR program is an exception to the normal rules, in which attorneys file unlimited appearances and "ghostwriting" is frowned upon. Under the LAR program, "ghostwriting" (writing pleadings on behalf of a client who will present them without counsel) and limited appearances are permitted by the Supreme Judicial Court to give more parties the opportunity to have legal advice even if they cannot afford an attorney for their whole case. The program requires that attorneys participate in a training for LAR in order to be eligible to provide these limited services. Attorney Kelsey participated in the required LAR training at the Norfolk Probate & Family Court, when LAR was only a pilot program, before it was expanded in May 2009, and is therefore certified to practice LAR.
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