Do you need a lawyer?

For you to decide whether you need a lawyer, you must first understand what an attorney’s duties are in order of importance. From my perspective, a Lawyer has three primary responsibilities. In order of importance, those duties are first and foremost, the duty to advise a client thoroughly so that the client, not the attorney, is making the decisions about the objectives of the case. Secondly, once the client has made the decision, the attorney is to advocate the client’s position. Finally, the attorney is to negotiate a potential settlement.

As an attorney, I represent clients primarily in three interrelated areas of the law; Criminal, Family, and Probate. I will demonstrate how to evaluate your need for an attorney in two of these areas; Criminal Law and Family Law.

Criminal Law

Today, people are representing themselves in growing numbers. While self-representation is increasingly popular, is it wise?

A criminal case can include everything from a DUI/OWI, a simple Domestic Abuse/Battery to Drug Cases and White Collar Crimes, such as Theft by Contractor, Arson, Sexual Assault, Rape, and Murder. While it is obvious that a person accused of Sexual Assault, Rape, or Murder needs an attorney, it may also be important for you to have an attorney in a DUI/OWI, Domestic Abuse, and Battery case.

A conviction in a DUI/OWI case has the potential to result not only in fines and imprisonment but also could result in the loss of operating privileges and the requirement that all vehicles owned and operated by the client be equipped with an Interlock Device. The person could be required to undergo Drug and Alcohol Evaluations.

A conviction for Domestic Abuse/ Battery not only could result in a fine but could result in jail or probation. Probation could restrict your ability to see your family, your children or even affect your employment. A conviction could potentially deny you the ability to have joint or sole custody of your children. Additionally, a conviction would result in the loss of your right Second Amendment Right to possess and carry a firearm under both Wisconsin and Federal Law.

As the previous examples demonstrate there are some serious consequences to conviction in even minor criminal cases. An Attorney’s primary responsibility is to explain those consequences to the client. Therefore, unless you are aware of all the consequences you should get an attorney.

The next consideration to make in deciding whether you need an attorney is, do you understand the legal and tactical issues of your case.? For example, assume you have been charged with Driving Under the Influence (DUI) / Operating Under the Influence (OWI). There are several issues that arise out of a DUI/OWI charge.

The first arises out of the stop. Some examples of issues include, Was the stop supported by probable cause? Did the officer have a reasonable suspicion to inquire whether you were impaired? Did the officer properly perform the field sobriety test? Was the officer biased or prejudiced in evaluating your performance under the field sobriety test?

The second arises out of the testing for drugs or alcohol. Did the officer properly and timely read the Informing the Accused document as required by law? Was the tester qualified to perform the test? For instance, for an officer to use a breathalyzer he must be certified. In order to perform a blood test, the person must be qualified to draw blood (i.e.: a doctor, nurse phlebotomist, etc.) Additionally, the testing device must be working properly.

If you go to trial, you need to learn the rules of evidence. The court will hold you to the same rules of evidence that it will hold an attorney. You need to decide how you will cross-examine the witnesses. In deciding how to cross-examine the witnesses, you need to understand the risks of various questions. It is possible that certain questions could increase your risks of conviction and could result in more severe punishment.

Finally, even if you know the answers to the previous questions you must answer one last question. The last question you must answer is can you set aside your emotional responses and make tactical decisions based upon logic and not our emotions?

Family Law

When people think of Family Law they generally think of Divorce. But a Family Law case can be anything from a Divorce, a Custody case, a Petition to Terminate Parental Rights, Grand Parents’ Rights, to Child Support hearings. As in criminal cases, there is a growing trend of self-representation. In deciding whether self-representation, is wise in your case?

As with criminal cases, family cases can have a major impact on your life. Take divorce, for example, the Court can limit your ability to decide your children’s school, decisions regarding your child’s medical treatment, and their religion by awarding the other parent sole custody. The court can also award joint custody while giving the other parent final decision-making authority. The court can give the parents general joint custody but award authority to make education decisions, medical decisions, or religious decisions to one parent.

Most people believe that their property is automatically divided equally however, in Wisconsin equal division of property is the starting point but the court can deviate from an equal division. This means the court could in some cases take your house, your car, your pension, and give it to your spouse.

The court can make you pay child support, pay maintenance(alimony) to your spouse, and pay the marital bills. The court can award the tax exemptions for your children to your spouse. The court can enforce its decisions by putting you in jail if you fail to comply with its orders. Thus, there is a lot at risk in a divorce case.

Once you are aware of the risks, the next consideration is whether you understand all the legal and tactical decisions involved in a divorce case. The first issue that generally arises in a Family/Divorce case is Custody and Placement of your children. There are over 16 factors the Court must consider in deciding the Custody and Placement of your children. Some factors you may have control over others you don’t. Additionally, under Wisconsin Law, the Family/Divorce Court under certain circumstances, can remove your children from both parents and place them with a relative or even in foster care. Thus, a tactic of simply accusing your spouse of abuse, neglect, or drug addiction may create more problems than you bargained for.

The next issue is Child Support. The Child Support issue is intertwined with the Placement issue, as the number of overnights determines which formula will be used to set Child Support. There are two basic formulas used for child support. Those formulas are the Traditional Percentage Support Order and the Shared Placement Formula. Under the Traditional Formula, only the payor's income is used to determine support, while under the Shared Placement Formula both parents’ income are used.

The next issue is maintenance. In Wisconsin, there is no set formula to establish Maintenance. The court considers 10 separate factors to determine the duration and amount of Maintenance.

Next, the Court must divide the property and allocate the debts of the parties. Most people have one of two misconceptions about Property Division and Debt Allocation. The first misconception is that each person has their own bills and their own property. The second misconception is that all the property and debts are automatically divided equally. In dividing property, there are two types of property and debts in Wisconsin. The first is Marital Property. The second is Non-Marital property. Marital property is subject to division in all cases. Non-Marital is subject to division only in special circumstances. Finally, when the Court divides the property and debt it must consider 13 factors to determine how to divide property and debt.

Just as in the criminal law, if you don’t have an agreement, you must not only learn the factors the Court must consider but you will also have to learn the rules of evidence. You will be held to the same standards as an attorney.

How to Select an Attorney

Once you determine that you need an attorney, the question turns to how you choose the right attorney. In my experience, there are basically three types of attorneys. The first type of attorney, I will call the Litigator. Some people might call them a sign and settle lawyer. The litigator takes a case with the idea of settling the cases, the litigator tries to avoid trial.

The second type of attorney, is an attorney who takes a case with the focus of going to trial and negotiations are not something the attorney is interested in. They are ethically required to pass an offer on to the client, but they don’t seek a resolution.

The final type of attorney is what I call a Trial Lawyer. A Trial Lawyer enjoys trial but also realizes that there are times when a trial is not in the client’s best interest and will recommend a resolution that is in the client’s best interest.

A good attorney is of no value to the client if the attorney and the client are not a good match. So, when you interview the attorney, your focus should not be on the cost of the attorney; but does his approach match what you need as a client? Does the attorney explain things in a way that you understand? Does the attorney make you comfortable with the way he discusses the case? Does the attorney take charge or does the attorney allow you to control the initial interview? Etc.

Does the attorney’s fee structure match the type of attorney you are looking for? For instance, if an attorney charges a flat fee, his incentive is to sign and settle your case quickly. If an attorney charges an hourly rate, the attorney is expecting to spend a lot more time on your case, etc. So, make sure the fee structure gives the attorney the incentive to approach the case in a manner consistent with your personality.

If you feel like your situation calls for an attorney, contact us today and request a free consultation.