How far ahead of my trial date do I need to retain a family law attorney?

 

I get a lot of questions about cost in family law cases. I get questions about attorney’s fees, retainers, how to save money, how to pay for the case, and even how to get pro bono help (seriously, though, don’t count on it).

It really runs the gamut. And I get it. It’s a big transaction. It’s a lot of money up front to pay a retainer to an attorney. And it’s a pandemic, so people are struggling. You’ll need some time to get things in order to be able to pay to hire an attorney at all.

So, like, what’s the drop dead date?

If you have a trial coming up, at what point is it critical for you to have hired an attorney already?

Really good question. I can’t tell you how often I have someone come in who has a hearing in the next couple of weeks and wants to hire me to help. It’s an awful conversation, but, if I don’t have enough time to prepare before the hearing, I just can’t take the case.
You don’t want to find yourself in a position where you want to hire an attorney but you can’t find anyone to take the case because it’s next week. Right? You want to be in a position where you still have all of your options available to you, so that whatever choices you want to make, you can make them without limitations.

Attorneys, though, in general, are kind of a wary lot. We, like doctors and other professionals, are always concerned about our ethical responsibilities, and the possibility of a malpractice claim being filed against us. Not only that, but we genuinely want to do a good job for our clients. I can tell you that worry about these cases does keep us up at nights, and we always want to put ourselves in the best possible position to achieve our client’s goals. That can’t happen if we don’t have enough time to prepare.

But how much time is enough time to prepare for a trial?

Well, of course, it depends on what type of trial it is. In general, though, I think having at least 2 months lead time is critical. Why?
Because work needs to be done before trial, so that the attorney can be prepared to question and cross examine witnesses, introduce exhibits, make arguments, and so on. Documents need to be gathered. Subpoenas need to be issued. Discovery has to be drafted, served, and reviewed. All the information needs to be reviewed, processed, condensed – and all of that takes time.

In discovery, for example, once the party is served with it, they have 30 days to respond. In an ideal world, their response would include all the relevant information in perfect, well organized detail, and cross referenced to boot. In the real world, though, these responses are often missing information – information that, sometimes, we need to schedule hearings to compel the other side to reveal. To have time both to receive those answers and to enforce compliance with discovery requests in the event that the responses are not received is, well, pretty important. Not to put too fine a point on it, but the less time we have, the less options we have available to us.

Failure to respond to discovery carries consequences, but that’s only if we have time to enforce those consequences. It’s possible you could ask for a continuance for failure to respond to discovery, but a continuance is NEVER guaranteed. And what about a case where you don’t want a continuance? I can think of a case now, that I had several years back, where this was an issue – a custody trial was scheduled, opposing counsel had not responded to discovery, but we couldn’t ask for a continuance because the grandparents had the child and my client didn’t want the school year to start while the child was still in the grandparent’s care. We didn’t have more time. There was nothing we could do but go to trial, even though I really didn’t feel like we had all the information we needed or the time we needed to get it.

Subpoenas, too, have time limits. Whether you’re talking about a subpoena duces tecum, a specific subpoena you send to get copies of written documents, or a witness subpoena, you have to do it within a certain period of time prior to the trial date.

Aside from the rules and the responses and the deadlines, you also have an attorney who is human, and who needs time to prepare. We’re not lawyer robots! We can’t just whip up a case from scratch in very little time. It takes time to process information, to interview experts and witnesses, and prepare to put on a compelling case.

I don’t say this to discourage you, but to encourage you to get moving if you’ve got a trial date. You’ll need to make sure your chosen attorney is even available on your specific date; you’d be surprised how quickly these dates fill up!

 

For example, since motions day in Virginia Beach is on Fridays, you may find that an awful lot of your attorney’s Fridays are filled way in advance. Of course, that’s not always the case – especially in the pandemic – but it often is, and it’s something that you should be aware of all the same.

I do think that, at the very least, two months worth of lead time before your trial date is critical.

Any less than that, and you may run into some issues getting the evidence you need. In any case, two months isn’t a ton of time, and you will likely find that your ability to go through the discovery enforcement stuff is fairly limited. You should just be aware that, the narrower the time limit between when you hire and when your trial date is set, the less options you’ll have. Less than two months, and you may really struggle to find someone to take your case at all, or someone who has the availability to do so, even if they could otherwise do it.

For more information, or to schedule a consultation (sooner rather than later, if a trial date has already been set in your case!), give our office a call at 757-425-5200.

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