Or:
No, your Honor, I didn’t say she was batshit insane, I said she was fucking Goofey!
If the judge is unbiased he or she will ask the right questions from both sides.
Beyond that, even as it stands now, not everything is “fair”. Is it fair to penalize Wife A because she mistakenly hired a worse lawyer than her husband? You can never even these things out.
Note that I’m not specifically advocating this approach, and what I’ve written is predicated on the assertion in the OP that the elaborate laws and regulations in divorce law leave relatively little wriggle room (as compared to other areas of law). I’m not certain that this is actually true, but given that it is, I was responding to some specific objections raised in this thread.
That said, it is my impression that the US legal process leaves more in the hands of lawyers than does the legal process in many other countries. Most specifically, I recall reading that it’s common in other countries for expert witnesses to be appointed by the court as impartial experts, rather than by the opposing lawyers as dueling hired guns. In other ways as well.
The ratio of judges to parties is negligible in terms of having the time and resources to review cases enough to ask the right questions.
Plus, just because a system isn’t perfect doesn’t mean you shouldn’t strive for as fair a system as possible.
“Relatively little” wiggle room is still enough to generate years of litigation, given the right motivation.
The OP’s assertion is ludicrous.
It is now. You would need to hire a LOT more judges under that proposal. But you would also have a LOT fewer divorce lawyers. End of the day, I bet there would be a lot less legal time spend on these battles.
I’m disputing whether it would be less fair. But even if it would be, it would be a marginal difference.
IF lawyers are so efficient in resolving disputes, them why are people turning to arbitration? That would seem to indicate that the current sustem is slow, costly, and inefficient.
Actually, you make a good point. In fact, I see lots of cost savings to be had.
IF accountants are so efficient in doing taxes, then why are people turning to Quickbooks? That would seem to indicate that the current system is slow, costly, and inefficient. I’m sure going to save a bunch on tax prep this year!
I’d write more, but I have a doctor appoint… hey, wait a second!
Actually, in family law matters in Ontario there are now laws in place limiting the scope for arbitration.
The reason: the fear that some (mainly women) were being taken to “arbitration” that was inherently unfavourable to them. This is what that whole overblown “Sharia law” controversy was about (at least, the legitimate part).
Arbitration, like any contractual solution, can be a great solution for people of equal bargaining power. Unfortunately, family law is one of those areas where inequality of bargaining power is rife.
As a generality this is nonsense, and I’ll tell you why.
It is true that some lawyers will take advantage of clients - just as some professionals in any profession take advantage of clients. But it is a losing strategy.
But in many forms of law, lawyers rely on repeat business, often for sophisticated business clients - in many cases, run by in-house lawyers themselves who are employees of the firms they work for. These guys are not going to tolerate over-billing year after year, any more than they would tolerate being cheated by any other supplier. You don’t succeed in business without getting value for money, and legal services are no exception.
Lawyers in small-client practice also rely on repeat business and on word-of-mouth to attract and retain clients. I’m a lawyer myself, but I know little about stuff like wills and mortgages - I hire a family lawyer for that. The same one, for over a decade now. If he cheated me, I’d find another - and worse, tell all my family & friends about it.
That’s of limited impact.
A bird in the hand is two in the bush, and people are tempted by what’s in front of them. Maybe they shouldn’t be, and maybe in the long term they’d be better off by sticking strictly to the client’s best interest, but that’s not how people work. For the most part, people convince themselves that whatever is in their own best interest is also in the best interest of everyone else, including their clients.
This is obvious to me from looking at the world in general, and the people in it. But in addition, my own experience is similar. I work for a major consulting firm, consulting for corporate clients, and we face the exact same dynamic as decribed in your post. And while you don’t want to get too greedy and kill the goose that lays the golden eggs, there is absolutely and definitely a bias in favor of expanding the scope of the work that we do.
Of course, consultants at my firm (and others like it) tend to believe very strongly in the value of the work that we do, and genuinely believe that they add more value the more they do. But as above, that’s intermixed with personal bias. And this applies to lawyers as well.
But shouldn’t the decision to hire a consultant or an attorney be left to the client? Why should we as a society ban the use of attorneys in one particular area of law, just because an attorney may develop scope creep. If that’s the standard, to protect all potential clients from the abuses of attorneys then there are better ways to do this and a much broader field to do this…major tort reform.
Meh, my point is that it doesn’t much rely on what the individual lawyer happens to think - the business world is now significantly more competitive than it was, and pad your bill and they will find another firm to do the work.
The reality of a law practice these days is that there are lots of hungry lawyers out there, and firms (and individuals) can, and will, go elsewhere. The notion that lawyers are any better placed than other service providers to bill what they want is fantasy. It may even have been true at one point, but it sure as hell isn’t true now.
In fact, we have been the ‘beneficiary’ of this in an odd sort of way: some of the lawyers I work with, and myself, do some specialized legal work and are relatively quite expensive; many clients, consequently, go elsewhere, put off by our pricing - only to come back to us when the file runs into problems that the cheaper option could not deal with. We call this process the “we repair $6 hair” cycle, after an old add I once saw at an expensive hairdressers’ when budget places became popular. 
You could argue that there’s a difference between different types of situations and that people in divorce situations are particularly vulnerable, due to the stakes being high, their emotional state, and their lack of sophistication and experience.
But as above, I’m not really advocating banning all lawyers, but was primarily responding to specific objections to doing this. As a practical matter, I’m not sure if this could be done anyway. Because I can’t see banning people from pleading their own cases, and once you allow that you’re opening the door for lawyers to come in as consultants who will advise people on what to plead, and there’s not much substantive difference.
[My own position is that lawyers are inevitable as long as the law is complicated, and I don’t see that changing any time soon. But I do think it might be helpful if the legal processes were more amenable to the lay person representing themselves. Much of the reason why people can’t do this on their own is not so much knowledge of the relevant laws, but of the legal process, and process can frequently trump right/wrong. If it was possible to change this it would be helpful.]
I’m all in favor of major tort reform, although I’m not sure what that has to do with divorce situations.
That depends on how widespread the practice is, and on how egregious the overpricing is.
Is there an equivalent of the state bar structure and ethics enforcement system for consultants?
I’d wager most big law firms, especially over the last few years, have written WAY more hours off of bills than they have padded.
Not for consultants specifically. Consulting is a job more than a profession. For example, we have lawyers working for our firm as consultants - they would be regulated by their state bar like any other lawyers, but not by anyone regulating their specific activity as consultants. (I’m not completely sure how it works for them - I know that they are somewhat constrained in that we are not a legal firm, but their purpose is provide all sorts of legal advice on compliance - I think they may need disclaimers of some sort.)
Similarly the actuaries - which is a big chunk of our employees - are regulated by the SOA & AAA and the related disciplinary board, but not by anything relating to their specific role as consultants.
I don’t think anyone is looking to see if anyone is padding their bills.
And again, the suggestion is not that lawyers pretend to be doing work that they’re not actually doing, or that they bill for thinking about your case while eating lunch (although I’m sure these happen as well). The suggestion is that lawyers say “if we go to court we can get such-and-such great terms rather than compromising with your ex-spouse for a lesser deal” (or the like), when in reality the extended court battle serves the lawyer’s interest a lot more than the clients’. I don’t see how the bar could possibly regulate this on a regular basis.
Well we write off quite a lot of hours too. A lot of client want fixed fees for projects rather than hourly fee arrangements, and if you go over, you write off your time. But at the same time, it might be that the project itself, or at least the scope of it, was not providing as much value to the client as it was to the consulting firm. So it cuts both ways.
Yet people aren’t generally presuming they know consultants pad their bills and accusing them of such, or suggesting people should be prevented from being allowed to hire consultants.
Actually, there’s a fair number of “consultants are useless/overpaid/just brought in to do the boss’s dirty work” rants out there.
Consultants ARE useless, overpaid, and just brought in to do the boss’s dirty work. But that’s different to consultants deliberately paid their bills.
I dunno about family law, not my area, but from everything I hear family law litigation is driven far, far more by the parties’ sometimes-irrational harsh feelings about each other than it is by lawyers attempting to drum up billable hours.
In business law, lawyers are judged by their clients based in part on how accurately they make strategic choices, such as whether litigation is “worth it” on a cost/benefit level. Family law, from what I hear, is much more emotional and much less driven by cost/benefit.
Most individuals don’t hire consultants, so it’s not as likely to come up on a MB of this sort. Also it’s not as big of an issue. If a huge corporation overpays for some marginal-value consulting it doesn’t have as much impact on anyone as someone who wastes years of his/her life and much of their assets on a long-drawn out legal battle that they were egged into by a lawyer who promised them it would be worth it.
In addition, no one is saying you can get by without lawyers any more than you can get by without consultants. The recent HC reform bill is about 2,000 pages and someone has to read it and figure out how to avoid falling out of compliance, and that someone will generally be a lawyer. (Someone else needs to understand the key provisions of the bill well enough to advise employers on what the financial impact will be on them, and what their options are in dealing with it, and that someone will generally be a consultant. :)) The question here is specifically about divorce situations.
Probably true, but that doesn’t mean that lawyers’ self-interest is not also a big factor. If anything the emotional aspect makes clients more vulnerable to this type of thing. If you’re interested in getting back at that jerk for everything he/she did to you, you’re particularly susceptible to someone telling you that you can accomplish your aims by fighting it out, even if you’re really better off not doing this.