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Divorce is not always easy because there are so many legalities involved in the process. Child custody, property settlements and parental responsibilities are some of the legal issues that come into the picture when getting a divorce. It can be mentally and emotionally taxing and the last thing you want to do is struggle with the process. A divorce lawyer comes in handy during this trying phase of your life. The divorce attorney represents and guides you through the process, making it easier for you to handle. But to enjoy a smooth process, you must find yourself a reliable attorney.

1. Talk to friends and relatives

2. Know what your needs are

3. Do your research

4. Create a budget

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Divorce - Three Important Tips For Choosing a Divorce Mediator

Introduction

"Collaborative divorce" is the new buzz word in family law practice. Its proponents enthuse about better and less costly settlements, greater client satisfaction, fewer accounts receivable, and less stress in the practice of law, than they can achieve through a conventional approach to family law disputes. How realistic are these claims? What are the down sides of "collaborative divorce"? Does the concept of "collaborative divorce" present ethical pitfalls and possible malpractice minefields for the unwary practitioner?

Lawyers who participate in the "collaborative divorce" movement use methods borrowed from more established alternative dispute resolution procedures to resolve family law disputes without litigation. However, unlike more accepted dispute resolution procedures, in "collaborative divorce" the lawyers and their clients agree that they will not engage in formal discovery, will voluntarily disclose information, and will settle the case without court intervention of any kind . They assume a duty to inform the attorney for the other party of errors they note in opposing counsel's legal analysis or understanding of the facts. If they are unable to settle the case, both lawyers must withdraw from representing their respective clients and the estranged spouses must start over with new counsel.

Good Lawyers Routinely Practice Cooperatively

Even the most enthusiastic supporters of "collaborative divorce" concede that the concept of settling cases rather than litigating them is hardly novel. Capable family law practitioners have always directed their effort and creativity toward reaching agreement rather than duking it out in court. It isn't news to anyone that litigation is expensive - sometimes prohibitively so - and that the most satisfactory settlements derive from skilled negotiation between capable counsel rather than a court-imposed resolution of disputed issues. How does the idea of "collaborative divorce" differ from what experienced practitioners do as a matter of course?

Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and value assets, set and meet scheduling deadlines, and otherwise facilitate resolution of the case. They respect legitimate positions taken by the other party and encourage their clients to be realistic and respectful as well. They are willing and able to compromise, and they are creative in crafting acceptable resolutions of disputed issues. "Collaborative divorce" supporters intimate that their process is unique because lawyers commit that they will not "threaten, insult, intimidate, or demonize" other participants in the divorce process. Good lawyers don't do that now. The American Academy of Matrimonial Lawyers, which historically has provided a model for good practice nationally, has promulgated "Bounds of Advocacy" that set a high standard for professional courtesy and cooperation.

Emotional cost. "Collaborative divorce" proponents say their process is designed for parties who don't want to go to war and who don't want "to hate each other for the rest of their lives." This description fits the vast majority of family law clients, including most of those whose cases end up in court. Clients almost always care about the emotional cost of adversary proceedings, and about the impact of the divorce action on their children and other family members. To suggest that people who really care will give up the protections provided by court oversight is to do a vast disservice to most of our clients.

Financial cost. "Collaborative divorce" supporters want to reduce the costs of the process by streamlining the discovery process. This also is not a new idea. Good lawyers have always sought to keep formal discovery to a minimum, to share costs of appraisals, to stipulate to values, and to cooperate in other ways to keep costs down. Many experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in person conferences with experts, and other such collegial arrangements.

As the above analysis indicates, the goals espoused by "collaborative divorce" lawyers do not differ in degree or in kind from the goal of the vast majority of the family law bar. Most lawyers try a cooperative approach first. Most lawyers agree - and most of their clients concur - that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.

The Limits of Collaboration

Despite the most concerted efforts of capable counsel, we all know that not all cases settle, and those that do settle sometimes don't settle easily. All of us have encountered the frustration of the last-minute, courthouse steps agreement, after completion of all the work and stress of trial preparation. Why is it that some cases don't settle until the very last minute, and some cases don't settle at all?

Unsettled Legal Issues. Legitimate reasons to resort to litigation are not always evident at the beginning of a case. Much appellate work involves issues the existence of which - or at least the seriousness of which - did not surface until significant discovery and negotiation had occurred. Where the law is unsettled or where counsel genuinely disagree about the appropriate interpretation and application of the law to the facts of their case, it is not only reasonable but necessary to ask the judge to intervene. Cooperative counsel can reduce the complexity and expense of litigation by limiting contested issues, stipulating facts where possible, agreeing in advance to the admission of exhibits, declining to engage in delaying tactics, and other behavior that is both practical and considerate. Lawyers can commit themselves to conduct the proceedings without animosity and can counsel their clients to be courteous to the other side. But the court has the last word on interpreting and applying the law.

"Collaborative divorce" supporters also claim that clients are "more satisfied" with the results achieved with the collaborative approach. It's not news that clients are more amenable to and more willing to comply with the terms of an agreed settlement than one that is court imposed. But what is the evidence that clients are "more satisfied" with a collaborative settlement than with a settlement reached through conventional cooperation and negotiation?

"Collaborative divorce" proponents contend that the process offers a way to practice law that is "more positive, more challenging, more rewarding, and more fun" than conventional practice. This is simply not the case for those of us who have historically settled most of our cases creatively, without having to give up the option to litigate if negotiations break down, or to dodge ethical issues, or to assume additional malpractice exposure..

Cooperative Divorce

The attorneys who are spearheading the "collaborative divorce" movement have adopted this idea with the best of intentions. They are looking in good faith for a more humane and less stressful way to deal with the sturm und drang of marital dissolution. They are legitimately frustrated with the waste of time and duplication of effort that goes into simultaneous settlement negotiations and trial preparation. They want to make a hard time easier for their clients and for themselves.

We can work toward these goals without running afoul of ethical rules, increasing malpractice exposure, and refusing to use the available resources of the court system appropriately to facilitate negotiated settlements wherever possible. Let's call it "cooperative divorce."

The "cooperative divorce" practitioner would:

Respect all parties and counsel and treat all participants courteously.

Respond promptly and in a straight-forward way to requests - both formal and informal - for information. (No paper bags full of unsorted documents, receipts, and junk mail in response to a request for production of documents; if you need an extension of time, explain why and ask for it rather than leave the opposing attorney to guess when he or she will hear from you, etc.)

Cooperate with rescheduling requests, requests for extensions, and the like as a matter of common courtesy. Everybody needs a break sometime.

Tailor information requests to the information needed for each specific case, rather than sending blanket, form discovery documents or routinely scheduling depositions without a specific purpose.

Educate his or her client about the other party's rights and perspective, rather than simply supporting the client's position regardless of its merits or the realities of the case.

Encourage the client to take a broad view and consider relationship issues. Help the client focus on the issues that can be resolved within the legal system and discourage justification of the client's bad behavior on the basis of the estranged spouse's total lack of redeeming qualities.

Prepare seriously for settlement negotiations; do the homework that is necessary to conclude the case. Run after-tax cash flow schedules and marital balance sheets; put together comprehensive parenting plans, update financial statements - as if the case were going to trial instead of a negotiation session. Too often we contribute to delays by being unprepared to negotiate effectively.

Keep his or her word. If a cooperative lawyer commits to provide information or a document draft by a certain date, he or she does so or makes a courtesy call to explain an unavoidable delay. If a cooperative lawyer makes a proposal in negotiation, he or she does not renege on the proposal on the table and retreat to a more favorable position for his or her client.

Use the legal system as a resource to help settle the case if appropriate.

Understand the rich menu of alternative dispute resolution resources and recommend their use as appropriate.

Maintain a civil and courteous approach. If litigation is necessary, stipulate where possible, cooperate with the admission of exhibits, accommodate the other side's expert witnesses, and advocate for his or her client without becoming antagonistic.

Most good lawyers do most of these things most of the time. But we all slip up on occasion. Committing to "cooperative divorce" avoids the problems of "collaborative divorce" and improves the practice of family law.

Thanks to Gary Young, Allan Koritzinsky, Linda Balisle, and Margo Melli for their input and support of the "cooperative divorce" concept.
This articles provides general information only and is not intended as a substitute for legal advice. Nor does this article imply any attorney client relationship. This article is for informative purposes only and may not apply in your state, please consult an attorney in your area.

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A mediator in California can help parents involved in a contested child custody and visitation dispute resolve their disagreements in mediation without a litigated hearing. Mediation is a mandatory process in California that must take place before a contested issue regarding custody and visitation is heard in a litigated hearing as pointed out in Family Code 3170. Due to the high degree of conflict often associated with contested child custody and visitation disputes, mediators in California will have special training, qualifications, and experience and must adhere to certain guidelines and standards when conducting mediation.

Mediator Limitations

A mediator may not be able to help all parents work out their disputes. Some cases are too complex or far too acrimonious. When parents do not settle their issues in the mediation process, a mediator will notify the court that the parties participated but were unable to reach an agreement.

If you are involved in mediation you will want to consult an attorney in your area to help you learn about the mediation process, standards, purpose, your rights, and what mediators can and cannot do in mediation.

© 2007 Child Custody Coach


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