Divorce is an ugly word and an even uglier time. But it is a very real part of many peoples lives today. My name is David Bouschor; I’m a board certified family law lawyer.
The key question for many people, in time of divorce, is how does the divorce work? And how do I get it done? Unless you’ve been down the road before, this may be the first time that you’ve ever asked yourself this question. The short answer is that there is a process in getting you down the divorce road. And you have choices all along the way. The first choice or decision is the process that you want to follow in getting your divorce. You can use the litigation method or you can use the collaborative method. Both are recognized in the Texas Family Code. In litigation, the parties file pleadings with the court in an attempt to settle their case by working through their attorneys, using the rules of civil procedure, rules of evidence and other codes, to negotiate all the issues. If no settlement can be reached, the parties go before a judge, and the judge will make an order and finalize the case. In collaborative law, the parties file pleadings with the court to start their case. But then they and their attorneys enter into an agreement whereby they agree not to go before a judge. They enter into negotiations and they work on settling their case using third party neutrals, such as CPAs, communications coaches, and child specialists and ultimately come up with a settlement that they have crafted that they believe that is the best interest of their family. Mediation is a tool that can be used in both litigation and collaboration. It is where a third party mediator meets with the clients and their attorneys., sometimes together, sometimes separately, and work on issues that stand in the way of settling. As your attorney, my goal is to assure that your interest and goals are strongly represented throughout the process, both ethically and equitably and that you are given the information you need to make a fully informed decision about your case. My staff and I will help you navigate the curves and the potholes along the road so that you and your children will end up in the best possible position, both financially and emotionally.
These days with the internet, I think that people can do a lot of homework on an attorney. I think that attorneys that are in this business have left a footprint out there. I think you need to be wary of the ones that do nothing but advertise, because if you’re advertising that doesn’t necessarily mean you know what you’re doing. In my experience some the ones that do the least amount of advertising may have the most experience because they have always gotten clients by way having referrals, instead of having to pick them up out of the yellow pages or off the internet. So there is a lot of work that people can do themselves. But as far as the questions to actually ask the attorney:
- Ask them how they view a case.
- How they’re going to handle certain issues, issues that are personal to their case. Whether it be their children, whether it be a family owned business, and see if that’s the style or that’s the way that you want your case handled because if somebody wants to go in and spend all their time in court, they need an attorney that’s going to go files a bunch of paper and spend all there time in court.
- If they want an attorney that’s going develop the case, make sure that every one understands, at least on our side, everybody understands the workings of the property and the workings of the children, so the client can make an informed decision in the settlement arena. Then you want an attorney that’s going to work towards that.
These are styles and, like I said, if you’re going to be working with someone for six months to two years, you want somebody who you agree with their style.
With my experience and background, I have stayed in the arena of collaborative law and in probate litigation. In probate litigation, guardianships and probates and they are all family matters. In most cases these are all family issues, the laws are in two different books, one is in the estate code and one is the family code. But I have focused in those areas of practice and I think that my experience and background and my success in this area have been good. I have the experience to handle your case. I’ve been doing this since 1991. I have been doing family law cases and I believe that most of my clients believe they’ve gotten good results. Not everybody gets what they want because the judge doesn’t always give the what they want. But they understand their case, they understand what happened.
My business background has been referrals and those are clients that I’ve worked with before sending more clients to me. I’ve been reasonably successful and I think that I wasn’t good at what I do I wouldn’t be getting referrals. That is the proof in the pudding, because I can sit here and tell you I’m great. But all used car salesmen will say that. What I can say is that my clients are sending clients to me..
I’ve been practicing collaborative law since 2001 and I’ve been a trainer with attorneys and for neutrals in collaborative law. In the collaborative law process wee have what we call neutrals, which are CPA’s and social workers that don’t represent either party. But they come into the case and actually help the parties get through all the bumps. With my experience in this, I’m not going to say that all of the cases have worked out, but the vast majority of them do settle, and I think it is a much a better settlement because its a settlement that is created by the clients and not by the attorney.
An attorney that says that they do collaborative law cases but doesn’t have the proper training and doesn’t have the experience is a little problem because we didn’t come out of law school with classes in collaborative law. It is something that is actually self taught or with training that was done after getting out of law school. And it is a little opposite of your mindset from a litigator. As a litigator, the attorney is standing out front, and he is doing all the arguing and basically all the fighting in court, whereas in collaborative law, the client is out front and doing all the negotiation. They have the support of the attorney, and the attorney has educated them, and they know what they’re negotiating. But it basically is a very different process and the client has a lot more control of the final outcome.
I have had a lot of experience with trials. I have had many jury trials. But we don’t go to trial unless we absolutely have to. But we have had cases where one of the spouses kidnapped the children for six months. Those cases are going to trial, you have to have somebody that can develop the case and will be ready. Because in court it is not what you know, it is what you can prove. And if your evidence isn’t in admissible form, you can’t prove anything. So we absolutely get our clients ready. The decision on whether or not you are going to trial, and the actual flavor of the trial, the clients going to have a lot to do with. But they are going to making a lot of those decisions after we’ve educated them so that they know that doing this may these ramifications, and that doing so may have different ramifications.
Most skilled attorneys in the family law arena are hybrids. 80% of our divorce and family law cases get settled. There is a movement in Texas that is called collaborative law, where attorneys are saying we won’t go to court. But for that 20% that go to trial you have to have somebody who has the experience, who has been to trial, done jury trials, and an awful a lot of attorneys, because 80% of them settle, may only have one or two jury trials in their whole life. They may not have many final trials in the last two or three years, because they’ve settled all their cases, but if you have a case where you have to go to court because the other side is just putting you in a position that’s unattainable, then you have to have an attorney that has the experience to go there.
First of all, I think that you need to find an attorney with enough experience to handle your case. What I mean by that is that if you have a marriage that’s 10 years, you have retirement, you have a lot of property, you’ve got several kids and you have several years of co-parenting, still in your future. An attorney who has been in this business for 5 years, may not have the experience and the knowledge to handle all of your problems because there are two cases that are actually happening. One is your divorce with all of your property, and the other your suit affecting parent child relationship, which has to do with you and your children. Both of those have long standing issues that are going to affect you in the future if they are not taken care of correctly. Second is that you need to find an attorney that you can walk down the road with, because a divorce is not an event, it’s a process. And if you are uncomfortable with your attorney then at some point when they say ” I think you ought to do this” or ” My advice is this”. You’re going to be less likely to take it, than if you’re really comfortable with this person. Comfortable with both with their experience and the way they handle your case. Some people want a more aggressive style, some people want a less aggressive style. Once again that’s a personal choice. So I think those two things are the two major issues that you need to be looking for when hiring an attorney for your divorce.
Collaborative law is great for parents that are in that eighty percent. The great thing about collaborative law is that as soon as you are hired in a case the attorneys agree “we’re not going to trial”. It’s their signed agreement. So one hundred percent of your effort is actually put towards settling the case. Where as in a litigated case, I spend a lot of my time getting ready for a trial that will only happen twenty percent of the time. But with that eighty percent that don’t go to trial, the collaborative law process is very good for those families, especially the ones that have a need for a future relationship. And that’s where you’ve got children, or in some cases, people have a need to continue the relationship because they have a family owned business or something like that, that they are going to continue to be involved with. That’s where collaborative law is really a good option.
Collin: This is Collin O’ Keif for LXVN TV and Affiliate Texas BAr TV. Im here at the 2013 State Bar of Texas annual meeting. And I am joined by attorney David Bouschor. David first, we are talking about negotiation, you just came out of a session of negotiation. Tell me a little bit about the difference between, precessional negotiation somewhat more traditional. And also interest based negation.
David: Well positional is something we are all really familiar with, it’s horse trading. You have a string and you have a pea and you’re going back and forth, you have one objective and really what you’re trying to do in the case of horse training is “how much am I going to pay for this horse”. Interest based is where you step back from the actual negotiation, you try and decide why everybody wants this horse. What peoples interests are, and often you can come up with a better solution, a solution that adds value for both of the parties. And in most cases you may be solving problems that are unsolvable with positional based.
Collin: I see. And with interest based you fine that it is really efficient in the legal world. How does it work there and do you find that you know. As you mentioned I understand it, you know both parties ending up getting what they want verses a winner and a loser.
David: Well in the legal world I think it is very useful, the problem that you have often in cases is that theres so much emotion involved and people are unable or with out train or help from the layers are unable to step back and actually look at their interests, and they stay in the positional so therefor even if they get a solution, they’ve left stuff on the table or haven’t gotten there best solution. If you explore why people want something what their real true interest are. You know its like they are fighting over the same sandwich, “I want the sandwich, no I want the sandwich”. But if you look at their interest and you say, “Why do you want the sandwich” they say well cause I’m hungry. Well I can get you this steak dinner over here, so now are you willing to give up the sandwich. So you know, theres just a lot more opportunities to solve problems out there. If you look at peoples interests, its a more intelligent way of negotiating and I think everyone comes up with better solutions.
Collin: Absolutely. Negotiation has numerous advantages certainly litigation in places. And thats some excellent insight right there. Once again that was David Bouschor he’s down form up in Denton. For more of our coverage of the 2013 State Bar of Texas annual meeting, visit us at LXVN.com and at Texas Bar Today.com as well. Thanks for interviewing me today David.
David: Thank you for your time.