Below is information for choosing and working with a lawyer in civil court proceedings, such as protection orders, custody, divorce, etc. (For someone who is a crime victim and dealing with the prosecutor on a criminal court case, most of the information will not apply.)
Choosing and Working with a Lawyer
Choosing a lawyer
Do I need a lawyer to represent me in court?
Although a lawyer may not be absolutely necessary, having a knowledgeable lawyer who will fight for you in court can change the whole legal experience for you. It can be intimidating to speak up in front of a judge or to know what your legal rights are in the court process if you are representing yourself.
A person who wants to file a case in court should be able to get the necessary forms from the courthouse or online from the state's courts website. For civil protection orders, the forms are often designed to be filled out by a person without a lawyer and can be fairly straight-forward. However, for cases that are more complicated, such as divorce, filling out the forms correctly and knowing what to write in the forms to try to get the best outcome can be challenging to do alone. Also, once the court case has begun, the other party involved may file legal papers (motions) that need to be answered in a certain legal format, which can be difficult to do without a lawyer.
A lawyer can be especially important if the other party has a lawyer and/or if the case cannot be resolved and the judge is going to hold a hearing or trial. There are complicated “rules of evidence” that spell out what type of statements, documents, or other evidence can be admitted (accepted by a judge) in court, which a lawyer would know.
How do I find a lawyer?
If you cannot afford to pay a lawyer, you may be able to get free legal assistance from a non-profit legal organization in your area. We have links for legal assistance in each state on our Finding a Lawyer page. However, very often, the demand for lawyers outweighs the supply of lawyers and so there may be waiting lists or you may get turned down. If this happens, you may want to ask the legal assistance program if they can recommend any other programs in your county that you can call or if, at the very least, you can get a free consultation with an attorney or some ongoing guidance from an attorney if you have to represent yourself in court.
If you can afford to pay a lawyer, or if you cannot get free legal help and feel that your only option is to figure out a way to pay for a private lawyer, your state's bar association likely has a program where they will refer you to a lawyer in your area. Often times, the initial half-hour consultation with the lawyer will cost between $25 and $50 and then it is up to you to decide whether or not to hire the attorney to represent you. You can find a link to your state’s bar association legal referral service on our Finding a Lawyer page. You may also be able to get a referral to an attorney who is sensitive to issues of domestic violence if you call your local domestic violence program or your state coalition against domestic violence – see our State and Local Programs page.
For a list of suggested questions to ask an attorney who you are considering hiring to represent you, see How do I pick the right attorney? What questions do I ask?
How do I pick the right attorney? What questions do I ask?
Choosing the right attorney to represent you can be crucial to your case. Before deciding whether or not you want to retain (hire) the attorney, you should interview the attorney to see if you think s/he is qualified, just as you would interview anyone that you are hiring to perform any job. (However, interviewing and choosing an attorney may not be an option if you are assigned an attorney from a free legal services organization or if the judge assigns an attorney to you.) Here are some questions that may be helpful to guide you in your initial meeting with an attorney:
- How long have you been practicing? What types of cases do you usually handle? How many of those have gone to trial?
- How many cases involving domestic violence victims (or custody, divorce, etc.) have you handled? What is your view of how domestic violence should be introduced in court in a case like mine (i.e., is it important, not relevant, etc.)?
- Here is what I would like to accomplish in my case (explain your goals) – do you think that is a realistic outcome or not?
- Can you explain to me what relevant laws will come into play in my case? What will a judge look at when making a decision?
- What type of communication do you expect us to have during the case. If I email you, how long will you usually take to reply? If I call you, when can I expect a call back?
It is also important to understand all of the fees that you will be expected to pay and what those fees cover. Most attorneys will ask for a lump sum up front, known as a retainer. This often covers the hourly rate of the attorney for the number of hours that the attorney estimates s/he will spend on your case. Below is a list of suggested questions that you can ask an attorney to best understand the total costs, many of which come from the National Coalition Against Domestic Violence:
- What are your fees? What work do these fees cover? Is this an hourly fee or a flat fee for the entire case?
- Is there an additional charge per court date for every time you appear in court?
- Do you charge a retainer? How much? What does it cover? Do you refund all or part of the retainer if my case ends up being dropped or not taking much time? (Attorneys should be willing to refund any part of the retainer not spent; make sure the agreement clearly indicates that any unused retainer money will be returned to you.)
- Are there other expenses that I may have to pay, such as filing fees, mailing or copying fees? What are they and how much are they likely to be? Will I be charged for your time if we speak on the phone or if we email each other?
- Will you be the only person working on my case? If not, what will other people do? How will I be charged for their work? Will I be charged for speaking to your secretary and/or receptionist?
- Are there ways that I can assist you to keep down my costs?
- Will you send me a copy of letters, documents, and court papers that you file or receive regarding my case?
- Do you charge extra if the case gets more complicated or we have to go back to court multiple times?
- Will you require that I have paid everything that I owe you before you will go to court with me or finish my case? (Many attorneys do this. They may also refuse to return your original papers or copies of your file, and in some states, this may be legal. Therefore, you should insist on getting a copy of any paper filed with the court, given to, or received from, another party or otherwise relevant to your case at the time the paper is filed or received. Be sure to keep all of them in a safe place, in case you ever need them.)
- Are you willing to work out a payment plan with me? Do you ever adjust your fees on a sliding scale for people who cannot afford your regular rate?
- Will you put our agreement about fees and work you will perform in writing?
- Will I receive a monthly invoice for services rendered and the amount of money owed/used for that period?
Note: In some states, the law allows the judge to order the higher-income spouse to pay the attorney fees of the lower-income spouse. If there is a big difference in the income level between you and your spouse, ask the attorney if this is possible under your state’s laws and make sure the attorney is willing to ask the judge to order this. Some attorneys may not want to make this legal request to the judge since it might mean that the attorney will have to wait to the end of the case to receive payment.
What if I cannot get a lawyer? How do I represent myself?
If you cannot get a lawyer, you may have to represent yourself in court, which is known as being a "pro se litigant." (“Pro se” is a Latin term that means “on one’s own behalf.”) Many courthouses have an office within the court that assists self-represented litigants in filling out paperwork or by providing brief advice - ask the clerk of court if there is any help for pro se litigants available in the courthouse. Advocates at local domestic violence organizations may also be able to help you with filling out forms or may accompany you to court for support if you are a victim of abuse. Go to our State and Local Programs page to find an organization near you. For tips on representing yourself in court in a protection order or custody case, go to our Preparing Your Case page.
Working with your lawyer
What will my lawyer need to know from me?
Once you choose a lawyer, take care to explain to the lawyer everything that you think is relevant about your case. Here are some things that you might want to bring up in your first couple of conversations with your lawyer:
- Explain what your concerns are about the case;
- Tell him/her what your goals are;
- Tell him/her what you think the other party’s goals will be or what s/he may say about you, regardless of if those things may be true or made up. Even if you think that this information would be hurtful to your case, your attorney should be aware of everything. Having surprise evidence come up during a hearing or a trial that your attorney was not prepared for can be very damaging to your case;
- Ask about his/her strategy for how to accomplish your goals;
- Ask what things you can do to better prepare your case, including what documents you may be able to show the attorney, what witness testimony may be helpful, etc.; and
- Ask the attorney what else s/he needs to know from you and be open and honest with your attorney in answering whatever questions s/he asks. Your attorney may have to ask difficult questions that will be hard for you to answer but remember that your conversations with your attorney are confidential (with limited exceptions).
If you feel you are having trouble explaining things to your lawyer, write down what you want to say beforehand. Sometimes it is helpful to write things down in a bullet point list, keeping each bullet point to two lines. When you write things down in this way, it often helps you get your thoughts straight and focus on the most important parts. It could also help the lawyer follow what you are trying to explain.
Who gets to make decisions about my case - me or my lawyer?
Your lawyer is supposed to advocate for you and represent your interests in the case to the judge. Your lawyer can make strategic decisions on the case such as what evidence to present, which witnesses will testify, etc. However, you are the only one who can make decisions about what type of settlement to accept in the case. For example, if the other parent wants joint custody or unsupervised visits and you feel this is not in the best interests of you or your child, you do not have to agree to this just because your lawyer might want you to. You can tell your lawyer to refuse the offer and go to trial. However, oftentimes people agree to settlement offers that might not be exactly what they want in order to prevent possibly ending up with an even worse outcome at trial. Your lawyer should give you information and advice to help you make an educated decision about whether to settle or go to trial. Your lawyer can tell you the likelihood of winning your case based on what the law says and how judges tend to rule in your county. You should consider all of your lawyer's advice carefully -- but the final decision is yours.
Before your court hearing, you can ask the lawyer how s/he is planning to present your case to the judge. Remember that while you are in front of the judge, your lawyer is probably trying to sift through everything you have told him/her to pick out the things that are most important to bring up in court. If you think the lawyer forgot something or said something incorrect to the judge, be sure to let your lawyer know. You know the facts of your case better than anyone and you are an important part of your “legal team.” Don't be intimidated by your lawyer. It is important to have a voice in the relationship with your lawyer.
Remember that while your lawyer has special expertise in practicing law, you are the one that has hired the lawyer and it is your case that s/he is working on. You will be the one who has to live with the outcome of the case long after your lawyer has moved on to other clients.
What are my options if I do not like what my lawyer is doing?
Talk to your lawyer about your concerns. It may be beneficial to put your concerns in writing, in an email or letter so that you can keep a record of your interaction with your lawyer. Your lawyer may have very good reasons for the decisions that s/he has made and can hopefully explain his/her legal strategy. If you do not like the decisions and/or you disagree with the direction that your lawyer wants to take your case, be clear in explaining why you think the strategy is a problem. If after talking to your lawyer, you are still concerned that your lawyer is not representing you well, you may want to talk to another lawyer, if possible, to get a second opinion about what your lawyer is telling you or doing (or not doing) in court. An advocate at a local domestic violence program or another lawyer may also help you think through questions you might want to ask your lawyer to help you better understand the lawyer's strategy.
If you are still unhappy with your lawyer's representation of you, you may decide to fire your lawyer and hire a new lawyer. If you do this, make sure that you get copies of your files from your first lawyer so that your next lawyer will have everything s/he needs to represent you. However, firing your lawyer and getting a new one may not be a realistic option when your attorney was given to you through a free legal services organization or appointed by the judge (if your state appoints lawyers in civil proceedings). In the majority of cases, the supply of lawyers who provide free representation is much lower than the demand and it may be more difficult to get a second lawyer to provide free legal services. For more information on ways to talk to your lawyer about your concerns, see Working with the lawyer you have from our When the Legal System Fails You page. You can find links for legal services organizations as well as your state bar association’s legal referral service on our Finding a Lawyer page.
If you feel your lawyer has acted unethically or committed malpractice, the state bar association generally handles attorney complaints in each state and can investigate your claim and discipline the attorney if appropriate.