Article by Barry Goldstein
The most common question I receive is where to find a good attorney for domestic violence cases. The problem is that few attorneys have the specialized knowledge to understand abuse cases. Law school provides zero training about domestic violence, and practice in custody cases makes things worse because attorneys receive substantial misinformation coming from judges and mental health professionals who are experts in psychology and mental illness but not domestic violence or child abuse.
Elizabeth Liu and I wrote two editions of Representing the Domestic Violence Survivor which are designed to help attorneys present abuse cases. Unfortunately, the books have not overcome the widespread ignorance about domestic violence because most attorneys are oblivious about the information they are missing. Attorneys routinely spend enormous time and energy to learn about technical and scientific areas of knowledge when they seek to help their clients in cases involving medical issues; accident cases or criminal issues, but have never made a similar effort to understand domestic violence even when they handle dozens or hundreds of these cases.
There are attorneys who have the needed domestic violence expertise. Most of them have worked for or with a domestic violence agency or have a personal interest in the subject often because of painful personal experiences. It is a pleasure to work with knowledgeable attorneys because they don’t have to be taught about domestic violence.
We don’t have enough attorneys with DV expertise to satisfy the needs of victims. The good news is that lawyers do not need to be to be DV experts to help protective mothers. They just need to be open to learning about abuse; presenting evidence of domestic violence and scientific research and zealously advocating for their clients. This seems like so little to ask of an attorney but many are happy to take mothers’ money while refusing to provide a basic level of services, competence and ethics.
Interviewing Attorneys
The Difference Between what the Court Believes and Reality: Attorneys have spent their entire careers in the insular atmosphere of the court. Therefore, they have heard a lot of misinformation that is deeply ingrained. Unfortunately, judges have heard the same misinformation and make bad decisions based on this. The attorney needs to advise you about what the court is likely to do and what information it will be open to. This is not pleasant to hear, but protective mothers need to know this. At the same time, we don’t want the attorneys acting as if the false information is accurate or that children benefit from abusive fathers. Mothers may have to consider compromise if the judge would otherwise do something worse, but there has to be the ability to have an informed conversation based on reality. Attorneys have distinct roles to provide advice that might be hard to hear and to advocate for you once a strategy is decided. The attorney needs to understand that the mother is the expert on what the father might do; the research has the expertise on what is best for the children and the attorney is the expert in what the judge is likely to do. The attorney must be willing to understand and learn about the reality in order to have an informed discussion.
Willingness to Present DV Evidence and Research: I tell any protective mother considering hiring me as an expert that I won’t do much good unless her attorney is onboard and willing to present the research and other evidence. A lawyer might be reluctant to present abuse evidence because they don’t agree with it or because they believe the judge is hostile to this information. They should not accept DV cases on behalf of DV victims if they disagree with the evidence or the importance of the research. It is their job to warn clients if they believe the judge will be hostile to evidence of abuse. But the client has the right to decide whether this evidence should be presented.
As long as the evidence is presented in good faith and is relevant, it is ethical to present this information and unethical for an attorney to refuse. It is especially unethical if the attorney objects because of a concern how it might affect other clients or the lawyer’s relationship with the judge. This would be a conflict of interest. These issues must be decided before the attorney accepts the case. The attorney should agree to present this evidence if the client wants before they are retained. It is extremely harmful to a mother, especially someone with limited financial resources to pay her limited resources to an attorney who later refuses to present the evidence.
The Case Is Not Likely to Settle: Most court professionals have a fundamental misunderstanding of the nature of contested cases. They are not “high conflict” as the court means, but rather domestic violence. This is why most of these cases will require trial. More than 95% of custody cases settle and some attorneys don’t bother preparing for trial in the expectation it will be settled. They then pressure the mother to accept a dangerous settlement or withdraw right before trial. Again, this is often devastating for mothers with limited resources. Accordingly, this needs to be discussed before the attorney is retained because this cannot be permitted to happen. Any attorney who failed to prepare for trial should return any fees in order to withdraw.
The Attorney Must Zealously Advocate for the Mother: The research confirms that the present court system is severely tilted in favor of abusive fathers and against protecting children. This means it is important to make the court aware of the research that many standard court practices have been proven wrong. From the start, attorneys for protective mothers need to tell the judge that there is now substantial scientific research from highly credible sources that many common assumptions courts have been using for decades are harming children. Ask the judge to be open to this research. Attorneys need to discuss this research and evidence of abuse as early in the case as possible and as often as possible. This is because of the burden of overcoming a career filled with misinformation. The mother needs to explain the advocacy she needs to protect her children and an attorney must commit to this support and advocacy before taking the case.
These major topics particular to abuse issues are in addition to issues in any legal case like communication, billing, access to the attorney and office policies.
What if you need to Switch Attorneys?
When I was an attorney, I often met protective mothers after a prior attorney had drained all her money and undermined her case. This is all too common because attorneys don’t understand abuse issues and too many are only concerned with their income. In many cases, the mistakes the attorneys made prevent even trying for the outcomes necessary to protect the children. Abusers’ attorneys claim the difficulty mothers have in finding a good attorney reflects on their cooperation and character, but it really says more about our failed legal system and bad lawyering in abuse cases.
The purpose of this article is to try to help mothers make a good decision when they first hire a lawyer, but inevitably many won’t see the article before the fateful decision. In many cases, the mother has no choice for financial reasons or because the attorney has become hostile or is undermining her case. Sometimes the choice is between continuing with a bad attorney or representing herself.
When the situation deteriorates to the point of the mother trying to decide between an attorney who is not advocating effectively for her and representing herself, this is a lesser of evil situation. It is difficult to face your abuser in the courtroom and courts routinely misunderstand a mother’s emotion and anger. On the other hand, the mother likely knows her case better than anyone and understands her abuser best. I have seen mothers do a good job pro se and others totally unable to proceed. The mother will need to consider if she can keep her cool and make sure she includes all her evidence and arguments.
At most preliminary hearings, the mother, if she can maintain her composure might argue better than the attorney because she knows her case and what she wants. The trial itself is more problematic because there are technical rules of evidence and failure to follow these rules could prevent her from having her evidence admitted. Another potential pitfall is judges who refuse to take pro se mothers seriously.
Conclusion
Finding a good attorney for an abuse case is difficult because there are so few with any expertise. The situation is made worse because attorneys have spent their careers repeatedly hearing misinformation. The sooner the mother knows what she needs and what questions to ask, the better. It is a lot easier to protect mothers’ rights if they make clear to the attorney what her needs are and what she will expect. Protective mothers need attorneys willing to listen and advocate them. Hopefully this article will be a good starting point for protective mothers.