Reflections on 45 Years of Family Practice
When I was a young lawyer, the parties in family court were represented by lawyers. I do not remember people without lawyers. When I was a family court judge, I observe that motions to withdraw were heard almost daily in family court and a substantial portion of family litigants were unrepresented for part or all of their litigation. Such persons are frequently called “pro se” litigants. Most people said the reason for their failure to have a lawyer was their inability to pay attorney’s fees.
Thus, assisting pro se litigants is now necessary for the function of the courts. Legal forms are provided on line for free at the Florida Supreme Court website flcourts.org. Case managers are hired by the court to assist pro se litigants in filing the necessary forms. The case managers monitor the filings in pro se matters and draft orders for the judge requiring that certain forms such as financial affidavits, Uniform Child Custody Jurisdiction and Enforcement Affidavits, and parenting plans be filed. The need to assist the Court in managing pro se litigation followed the increase of pro se litigation. It did not cause pro se litigation.
Appearances by unrepresented litigants has increased dramatically in the last four decades. At the same time, the number of Florida Bar members has grown from about 15,000 to 103,000. No doubt it is increasingly difficult for family court litigators to obtain paying clients. Not that family practice was ever easy or lucrative for most lawyers.
My recollection of family practice in the 1970’s was of very modest fees. In 1972, the local fee schedule was $350.00 for an uncontested divorce, and $500.00 fixed fee for a contested divorce. Five hundred dollars was about three weeks take-home pay for a first year lawyers here. Hourly billing was less common back then. Human nature hasn’t changed, however. Some clients would change lawyers in protracted litigation. But this was the exception. It was not routine for lawyers to withdraw or be discharged by the client. Lawyers looked askance at lawyers who withdrew or were “fired”. I still find it discomforting.
This frequent withdrawal by counsel is regrettable not only because it reflects poorly on lawyers, but it means the judge may be hearing a trial conducted by unrepresented parties who will not present necessary evidence and make well-informed requests for relief. As a result, the judge may not be able to render a final judgment that provides the best possible parenting plan, the proper calculation of support, or an equitable division of assets. And rarely will the needy party prove a claim for the attorney’s fees he or she did incur. A judge cannot help people prove their case. If a party does not put on competent, substantial evidence, the judge cannot grant what the party wants or needs.
In 1972, law firms were heavily dependent on staff. Even a small firm would have at least one secretary for each lawyer and busy firms would have typing pools with two shifts. Secretaries took dictation by shorthand. Paralegals, however, were largely non-existent. Billing for staff time was unethical. There were no computers. Everything was manual. The IBM Selectric typewriter with a magnetic card (and no screen) was the newest technology. The photocopiers which made copies of very poor quality on special paper were a new technology, too. Many lawyers used carbon paper between three sheets of paper as the method to make multiple copies. Thus “cc” to a person meant “carbon copy.” One mistake in typing a will or a pleading required the secretary to start over. Mimeograph machines were used for large copy jobs. No fax machines existed. Telephones were to make telephone call. Messages were taken by someone answering the phone. There were no voice recorders on telephones. Long distance fees were charged from Fort Pierce to Stuart. There was little spent on advertising and marketing.
The statutes and the rules have changed, too. For example, in 1972, Section 61.13, Florida statutes, provided for “custody and visitation rights” and provided that “the father of the child shall be given the same consideration as the mother.” The only guidelines were “the best interests of the child.” No specific factors were mentioned. “The Uniform Child Custody Jurisdiction Act” was inserted in 1975. “Shared parental responsibility” and “primary physical residence” were inserted in 1982. As Chapter 61 evolved, it also expanded. The practice of family law was further enhanced by the development of alternative dispute resolution (mediation) and by the creation of Family Law Rules of Procedure in 1995, and the Family Law Forms. Statutory schemes have also expanded greatly to address social change for issues of unmarried parents, child support enforcement, and injunctions for protection from violence.
Case law also modified family law, sometimes provoking statutory changes. For example, increased awareness of gender equity led to evolution of “special equity” and alimony in the 1970’s. See Ball v. Ball, 335 So.2d 5 (Fla. 1976); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); and Brown v. Brown, 429 So.2d 846 (Fla. 4th DCA 1983). This evolved into “equitable distribution.” Tronconi v. Tronconi, 466 So.2d 203 (Fla. 1985). The enactment of Section 61.075, Equitable Distribution, followed in 1988.
So, family law has significantly evolved and grown in 45 years. At the same time, the lawyers and judges have been given more guidance. In the 1970’s most trials were less than a day and the evidence was sparse. Discovery was not extensive. The court had limited guidance from the statutes. Usually the mother was awarded custody and child support and often permanent alimony. Assets were sometimes distributed as alimony. There was no formula for calculating child support. As the law has became more defined, the lawyer has been better prepared with the necessary proofs and more informed to reliably advise the client on the likely outcome. Through the application these detailed statutes, rules and forms, family law practice can be better organized and standardized.
In the recent decades, although fees for uncontested matters are much cheaper, fees have increased greatly for routine family litigation between people of modest means. Lawyers are pricing themselves out of the middle-class litigation market. Yet this has happened while productivity has been greatly improved by the new technology. Lawyers need to harness the technology to be more competitive.
Lawyers also need to be creative about structuring services to allow for affordable fees. Simply billing everything by the hour will need to change. Rule 4-1.5, Rules of Professional Conduct, lists eight factors to be considered in determining reasonable fees. The time required is only a part of one of those factors. Rule 12.040, Family Law Rules, provides a means for an attorney to limit the scope of representation from the outset. Few lawyers are taking the opportunity to provide limited services for a fixed fee. Doing that consistently probably requires a new model of practice and marketing. For example, could one offer counselling and form preparation without court appearances? Or perhaps the converse, offering to appear in court for a pro se litigant? The assistance at trial by any lawyer knowledgeable in family law and the rules of evidence would be of immense value to any pro se litigant and a great help to the court. A lawyer may not get rich in such a practice, but a good living could be had. Who knows? An entrepreneurial lawyer might even develop a franchise of family law walk-in clinics.