poorly represented

[42]

Do I have any recourse if I feel my attorney did a poor job of presenting my case to the judge in my divorce?  I have not received the judge's ruling yet, but many important aspects of my case, which had been discussed at length, were not presented to the judge.  Many of the documents that my lawyer and I had discussed as being important, and that I had provided to my lawyer and that my lawyer had said he would use as exhibits, he simply never did.  I'm extremely concerned at this point that I have not been well represented.  If the ruling is not favorable, what can I do?

[Lee Borden]

You should feel free to file a written complaint with the Alabama State Bar Association, which routinely disciplines lawyers for violating one or more tenets of its Code of Ethics. Here's a brochure about how to do it and what happens after you do: http://www.alabar.org/ogc/complaint_brochure.pdf.

[42]

Thank you so much for the quick response!  I will probably be filing a complaint, but is there anything I can do about the ruling itself?

[CollegeDad]

That sounds atrocious.  I hate to hear about this kind of thing going on.  The fact of the matter stands that anyone can go down to the Birmingham school of law (or the one in Montgomery or where ever) and eventually pass the Alabama bar if they take it enough times and they can be representing you in court the next day.  I know I'm exagerating but you get the idea. 

I?m sorry to hear that you feel that you have not been adequately represented on your dispute.  About the only thing that I?ve heard that you can do is file a complaint with the Alabama bar as Lee suggested above.  From what I understand, they are located down in Montgomery and depending on the merits of your complaint, the attorney may have to spend a day and go down and answer the complaint in person. 

It is tough in a civil case because nothing has to really be proven beyond a reasonable doubt as it does in a criminal case.  Depending on the situation, too much information can be confusing for the judge to keep track of so it is best to leave it out.  Sometimes, the attorney on the opposing side can cause some evidence that you might have thought was important to be excluded by raising an objection to it. It is not always clear that what was included or what was left out would have hurt or helped your case. 

Worse, once you?ve gone to trial with your case, you are going to be hard pressed to find a really good attorney that will take on your case after it has been tried.  You may find one but usually the really good attorneys want to handle your case from the beginning or not at all. 

But, to make sure that you make a valid complaint to the Alabama bar you are probably going to have to find an attorney that will review your case and help you decide what could have been done better.  Bear in mind that attorneys are taught a code of honor in law school to never tell on each other.  The implication is that code extends into their professional practice.  You may not find an attorney willing to help you file a complaint against a colleague. 

This kind of thing is the very reason it is so important to do your homework before getting tied up with an attorney that can possibly bungle your case.  Once your case has been mishandled, most of the time you don?t get another chance to go back and get it corrected.  You have to live with the results or it costs a great deal more in litigation expenses to try and fix it or salvage what you can from it. 

One last thing that you might be able to do is complain directly to your attorney and insist that he forfeit some of his fee because of how poorly you felt that you were represented.  You can site all of the things that you discussed that were not presented.  You can make a case that he went into court ill prepared and that you felt that you deserve better than that for the money that you were paying. 

If he agrees with you then fine.  If he doesn?t then don?t make the mistake of not paying your attorney.  If word gets around that you?ve stiffed an attorney, you may not be able to find anyone to represent you in the future. 

[42]

Hi Collegedad, thanks for your reply.  I did, in fact, do my homework before hiring this attorney, and he is no two-bit lawyer.  He came recommended by several people and comes from a well respected law firm.  I asked many questions before hiring, and afterwards, and felt that I understood the process well and what the issues were and what was needed to prove the case.  And I agree; too much information can be confusing for the judge to keep track of.  That was not the case here.  Without going into all the details here, everything during the trial went pretty much as we thought it would.  My lawyer simply dropped the ball for whatever reason, plain and simple.  I have no doubt if another lawyer were to review the case he/she would agree.  But as you say, finding one willing to do that is probably next to impossible.   I will certainly ask him about reducing his fees, but since I already gave him a large retainer, I don't think that will go anywhere.  It looks like my only recourse will be to file a complaint.  I was hoping there was some sort of channel, or appeal, or something to get the judge to look at the case again.  It seems absurdly unjust that there is no recourse (other than filing a complaint which does nothing to help me) when something like this happens. 

[CollegeDad]

I have been involved in filing appeals before.  You have to have grounds for an appeal.  You also have a time limit to file an appeal.  I believe that it is 30 or 42 days from date of judgment. 

I can't remember what some of the standard grounds for appeal are but you may not want to file the appeal with the attorney that you have. 

On the other hand, you might ask him to file an appeal and eat the cost because he clearly screwed up. 

Talk to him first to see if he admits that he made a mistake and if he does admit it, what is he going to do to correct it for you.

I have to say, that I admire what you are doing.  You are staying on top of the matter along with your attorney.  I believe this is the best way to get good representation from an attorney.  Ultimately, you have to live with the consequences of what happens.  So, it only helps you to stay on top of it and keep your attorney focused. 

Unfortunately, even if you are on top of things, you can still get a bad deal.  I had an attorney once that just did not know the law and they would not admit it.  When this happens you just have to do the best that you can to control the damage by confronting the offending party directly to see what they can or will do to correct the matter or firing them and finding someone else to pick up in their stead.  I've had to do this personally so I know exactly what you are dealing with.  I've even had a divorce reversed so that I could go back into court and get a better deal believe it or not.  I had to do this for my mom.  Even after gonig through this and switching attorneys the new attorney still showed up for trial completely and utterly unprepared.  After I let them know how much we had trusted him and how much he had let us down they agreed to correct the matter at their cost. 

Anyway, good luck with the judgment.  Maybe it will work out in your favor after all and you won't have to do anything else. 

If you feel you need to see another attorney, set up a free consultation and layout the merits of your case and see if they agree that you should have a favorable outcome first.  If they agree with you then ask them if they would help you fix it or file a complaint against this guy. 

Again, good luck with that. 

[42]

I finally got the ruling a little over a week ago, and I'm now trying to figure out my options.  My main concern is the fact that while my ex was awarded a hefty chuck of "equity" in the house (the house was bought entirely with my money and is owned outright), I was not awarded any of his 401k.  I am concerned that perhaps this was because my attorney did not ask for this in closing arguments, despite having discussed this at length with him.  The judge asked at the end of the trial "Well, what do y'all want me to do?"  (ugh).  My ex's atty said he wanted the house, my atty said well, if you're going to give the house to him, then consider giving alimony to my client.  He said nothing at all about the 401k (although it WAS brought up during the trial and the judge was aware of it, and was aware that it was accrued entirely during the marriage).  I was shocked. to say the least.  So the judge did end up giving half of the house to my ex, and only "reserved" alimony for either one of us.  There were no other major marital assets besides the house that I bought, and the 401k that he had.   

So I'm left wondering, how much weight did the judge give to the fact that my attorney did not specifically ask for the 401K?  He was aware that it existed.  I know the judge has total discretion and can rule however he likes, so on the one hand it would seem to me that regardless of the fact that my atty didn't ask for it, if he so chose he could have awarded it (or a portion of it) to me.  On the other hand, he's not going to waste his time thinking too much about the case, and if my atty didn't ask for it, he's not going to bother to award it.  Anybody have any opinions on this?

[m_t]

Have you asked your lawyer why s/he didn't bring the 401k up?

[42]

Yes.  I did not get a direct reply to my question, and in effect he did not answer it. 

[CollegeDad]

When an attorney goes to court to represent you they need to know what you are entitled to under the laws of Alabama and they need to stand up and fight for everything that you deserve in the face of opposition that either correctly or incorrectly disagrees.  If your attorney is a little vague or in some cases completely ignorant of the law, has not done their homework, and shows up to court completely unrehearsed on the merits of your case, you end up digging out of a hole that they dropped you in or worse stuck with a bad decision that can't be changed.

For whatever reason, it sounds like in the heat of the battle your attorney failed to fire all of the weapons that he/she had on your behalf.  I can almost certainly tell you that if your attorney didn't ask for it in court the judge is not going to give it to you when the final order is written up.  Once the trial is over, the judge has the task of writing a final order.  This usually becomes a negotiation that goes on behind the scenes between your attorney and your ex's attorney.  Your attorney will write up a final order that he/she recommends and your ex's attorney will write up an order that they recommend.  At least this is how it worked in my own court case.  They both send this to the judge and the judge can pick one or write one of his own based on parts he likes from both sides.  Your attorney might attempt to include some provision about the 401K in what they recommend to the judge but I can almost guarantee you that if it wasn't discussed openly in court, the judge will not include it in the final order.  I may be wrong but this is my opinion. 

Another option might be to have your attorney ask your ex's attorney if you could include provisions for the 401K in the order that your attorney is recommending to the judge.  I would be willing to bet that if your ex got away with out addressing it during court, they are not going to willingly offer it up in the final order write up especially when it involves them forfeiting part of what they consider to be their 401K.  Now you may have a different relationship with your ex than I think.  If so, then you might see if they would help you avoid going back to court over something that you are clearly entitled to and agree to include it in the order.  The judge may still forbid it but its worth a shot especially if your ex is agreeable.

So, my guess is this will have to be dealt with in another trial where both sides can openly present their sides of the story and the law dealing with this issue can be applied. 

You have to be absolutely certain about the law when you confront an attorney about something that they allowed to fall through the cracks in your case.  Its not that hard to do though.  The law belongs to all of us.  No one has any special ownership or claim to the law.  You can read and know the law just as well as any attorney.  If you feel uncomfortable tackling it by yourself then talk to another attorney if necessary to make sure that you are correct about what the law says about your case and then go back to your attorney and ask them how they are going to fix this problem that they clearly created for you.  You can tell them that they can definitely expect to have this reported to the bar if their is nothing they can do to help you. 

I believe that you should be able to appeal this because the 401K was not addressed.  Be sure to appeal before the window for appeals closes on the ruling.  Your attorney ought to offer to handle this appeal free of charge. 

The 401K comes into play as property that must be divided when it was accrued during the marriage and the marriage lasted 10 years or more in the state of Alabama.  If all of this was true for you then you definitely should have received a share of it. 

[42]

Thanks, CollegeDad.  I'm not sure, but I'm assuming that when the judge asked for closing arguments at the trial, that would have taken care of each attorney writing up their version of the final order.  As I stated above, the 401k was indeed mentioned during the trial, and it was shown to have accrued entirely during the marriage.  It was the fact that it was not specifically asked for during the closing arguments, when the judge asked each attorney to tell him what they wanted him to do,  that leaves me wondering if that is why I was not awarded any of it.  I'm getting extremely frustrated with this, as it looks like now I'll have to go pay another attorney to get this question answered.  As you say, the law belongs to all of us - but the answer to this relatively straight forward question is something that I'm going to have to pay a lawyer for at their hourly rate.  Can I ask the judge??  Or is he not going to rat on one of his buddies?  I also wonder whether it's even worth going to another lawyer anyway, as they are not likely to say my lawyer dropped the ball.  I'm extremely frustrated right now.  I certainly know that a portion of my ex's 401k is an asset that could be divided.  I'm simply trying to figure out if it wasn't because of the technicality of it not specifically being asked for in closing arguments.  Thoughts?

[CollegeDad]

When I went back and read through what you've told me to date about your attorney, I was struck by how impersonal this person seemed to be with you.  I've worked with some great attorneys and the best ones always consulted with me before they sent their final recommendation to the judge.  Apparently, your attorney didn't bother to include you in that process for whatever reason.  I guess they felt like they could adequately handle all of your interests or maybe they billed themselves as someone that you could trust to leave all the details to. 

Your loss of the 401K was a little deeper than a technicality.  Your attorney should have not only asked for it in the closing arguments but they should have presented articles of evidence during the course of the trial that indicated how much the 401K had grown during the marriage.  This would have been accomplished with the introduction of account histories and the latest bank statements from your now ex.  These are materials that should have been produced during the discovery phase of the whole law suit.  This sort of thing is specifically asked for in the interrogatories that are exchanged at the beginning of discovery.  If all interrogatories are not satisfactorily answered then your now ex could have been ordered to produce all of the records that you needed to ask for this during the trial. 

Still when, the trial begins, even though you may have a mountain of evidence generated during discovery, specific articles of evidence need to be given to the judge to support anything that you are asking for.  The judge is not going to be aware of what came out discovery unless it is brought forth and presented to him during trial.  So, it is not just a matter of asking for something during the closing arguments.  You have to provide records that support your position that you are entitled to it.  When these articles are introduced, your ex's attorney would have had a chance to object to them if they had any reason to argue that you didn't deserve it.  Otherwise, they would have been the necessary information that the judge would have used to determine how much of the 401K that you should have received. 

If nothing was introduced to support your request, I believe that I would want to ask my attorney why.  Normally, all articles of evidence are uniquely numbered and entered during the course of the trial. 

Also, if your attorney is part of a big law firm, I believe that I would have to file my complaint not only with the Alabama bar but with their employer as well.  A successful law firm can't afford to get a reputation of inadequately representing their clients.