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Rethinking the business of family law

By: Erika Strebel, [email protected]//November 16, 2015//

Rethinking the business of family law

By: Erika Strebel, [email protected]//November 16, 2015//

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Family-Law-Gavel

Number of pro se litigants on the rise

When Susan Hansen, a Milwaukee attorney, started her career in family law, about 10 percent of the cases of that sort filed in circuit court were brought by pro se litigants.

Now, about 30 years later, pro se litigants are believed to be the origin of well more than half of all the family-law cases filed. Although there is no official count, Hansen said, the state estimates that about 70 percent of family-law cases are now brought pro se.

That the number of pro se litigants is increasing is nothing new, said both Hansen and Elise Ruoho, a Madison family attorney.

Of far greater significance to the practice of family law are fairly recent changes in the characteristics and mentalities of those who make up the pro se pool.

Doing themselves in

Ruoho has encountered, in both her own practice at Cullen Weston Pines & Bach LLP and in the clinics that she volunteers for in Dane County, what she believes is a new group of pro se litigants. It is made up primarily of millennials who are steeped in technology. Many times, it’s people who can afford legal counsel but choose not to because they believe they can maneuver through a divorce or other family law action themselves.

That confidence, Ruoho said, is often misplaced.

Up-Arrows“In divorce and paternity cases … they are dealing with complex issues and the emotional side,” she said. “That’s also where the role of the attorney comes in … working toward making the best decision for them and their families without the emotional component driving it. People under stress don’t necessarily make the best decisions. It may be the best decision in the moment but not the best one long term.”

Hansen said the trend toward pro se litigation has emerged for a variety of reasons. Some simply do not value the services that family lawyers provide.

“There are many individuals who could afford a lawyer who don’t necessarily see the cost-benefit connection,” she said. “They don’t look to the cost of a lawyer and see that they are getting value for that.”

Many pro se litigants, Ruoho said, are learning the hard way – and the expensive way. Clients who litigate pro se cases often end up going back to court, sometimes to seek a post-judgment modification.

Usually, though, it’s too late. The courts can review custody rulings, but divisions of property in divorce cases are usually final while getting relief from a judgment requires meeting a high standard of proof.

Ruoho recently took part in a case in which a pro se couple paid a hefty price for failing to recognize that the terms of a support agreement were accurate.

“Had they gone through an attorney … they would have avoided having to spend close to more than $30,000, if not more,” she said.

Looking for the right fit

Hansen said the greater number of pro se litigants is a sign of a fundamental change that is taking place in family law. Clients, for the most part, no longer want to go the adversarial route in divorces and other legal disputes.

And lawyers, for whatever reason, are not viewed as a means of avoiding conflict.

“Too often, the perspective is that you need a lawyer as a weapon, a legal weapon to protect yourself or have an adversarial dispute to get the most you can form the legal proceeding,” Hansen said. “I think that some of that is now perhaps an old fashioned view.”

The general public, Hansen said, often cast family-law attorneys into the role of formidable court adversaries and fail to see they can also be problem-solvers who clear up legal disputes using mediation or similar means.

Catering for a different crowd

Both Ruoho and Hansen agree that much good would come from merely ensuring that the public is better aware of the legal options.

Toward that end, Ruoho has been working with the State Bar’s family-law practice section to develop a brochure containing useful information about the legal system and the choices that clients often must make. Ruoho also said that she and her colleagues are trying to use their firm’s website and marketing endeavors to place an emphasis on education.

“The goals of the section and section board are to improve relations with the community through our clients,” she said.

That involves getting information about collaborative divorce, mediation and arbitration to the public. It also means convincing potential clients that divorces, contrary to what is often portrayed on television, aren’t always rife with conflict.

Hansen and her firm, Hansen & Hildebrand, S.C., have decided to try a new approach. She and her firm have established what was initially called the Milwaukee Family Mediation Center and then quickly became the Family Mediation Center.

The center’s priority is education, Hansen said. Couples who go there can pay $250 for a joint-education session, during which a neutral lawyer will lay out all their options.

“We’d like to give people a place to go that isn’t a law firm but that is an education resource …” she said, “and then if they choose mediation they have the skilled and trained individuals who can help them navigate the  process.”

Hansen said the center also offers what she calls interdisciplinary mediation, which involves a neutral lawyer who acts as an adviser and educator.

“Typically, it’s ‘You represent the husband, you represent the wife, and we’re stuck. You got to mediation to hammer out a resolution,’” she said.

The kind of mediation she is offering is aimed at preventing the parties from ever getting stuck.

“It’s like contract mediation,” she said. “I’m seeing mediation in a different light, which at the very front end is about being a source of education, option generation and problem-solving before they’re stuck.”

Hansen she first thought the center would be nothing more than a small community resource and would need only a voice-mail system to handle the calls that would come in. It has instead proved so popular that additional employees have been hired to answer the phones and offshoots have been opened in Brookfield and Mequon.

Hansen said she believes no one else in Wisconsin is offering similar services.

“My competition is all of the pro se couples who are speaking to no one,” she said. “So I don’t see this mediation center as something that takes away business from private lawyers. I see it as an education resource and support system for couples who would otherwise hire no one at all.”

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