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Mediation, Conciliation, and Litigation in Family Law

Jan 19, 2015
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Gabriel Cheong is the owner of a small family law firm. In this episode, Gabriel explains how his use of technology and fixed fees maximizes time spent on his clients' legal dilemmas. He mixes traditional litigation with mediation, conciliation, and guardian ad litem. With this kind of work, Gabriel experiences emotional ups and downs. Yet he observes that they’re two sides of the same coin. After all, his job is to help clients whose lives are being torn apart. Gabriel is a graduate of Northeastern Law School.

Transcript

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Aaron Taylor interviews the owner of a small family law firm who discusses how he runs an efficient practice.

Aaron Taylor:

Our guest today is Gabriel Cheong. Gabriel is a graduate of Northeastern School of Law. On the day he was sworn into the bar, he started a small family law practice. Many advise against starting your own firm right out of law school. What pushed you in that direction?

Gabriel Cheong:

When I graduated from law school, horrible economic event happened, which was the crash. The economy just tanked. Law firms were just laying off people left and right. There were just massive layoffs and nobody was really hiring because they didn't know where the legal profession was going at the time or what was going on with this economy. Are we going into a recession? Depression? What was going on? Long story short, decided to open up my own law firm because, one, there was those prospects, but two, I think I'm one of those people that I knew I didn't really want to work for somebody. I wanted to call the shots, not simply because I didn't want to learn from other people, but I had my own way of doing things. So I really spent a lot of the time in between taking the bar exam to getting sworn in.

There was usually about a three-month period of time really gearing up to open a law practice and I learned everything I possibly could off of reading books and reading things off the internet and doing a business plan, doing a marketing plan, really gearing myself up for it and I opened my law practice to the day that I got sworn in into the bar. And I remember, I actually remember that day because I already had business cards made and the first marketing thing I did was I handed a business card to the person that was sitting next to me getting sworn in at the same time.

Aaron Taylor:

And so after being a year in business, you became the Infinity Law Firm. Now tell us about that first year and then tell us about how the transition to Infinity came about.

Gabriel Cheong:

Yeah, so it was about a year or a year and a half. I don't remember exactly how long it was, but when I first started at my law firm, I did the traditional, the Law Office of Gabriel Cheong and that did basically the same thing I'm doing today, which is mostly family law, a little bit of estate planning, but mostly family law. And what happened about a year and a half in was an old mentor of mine, actually somebody that I did one of my law school co-ops with, she decided to shut down her business because she was moving to California with her family and at the time joined this one and a half year period, I stayed in touch with her and she sent me some cases that she didn't want to do in terms of family law stuff along the way. So we had a really good, not only professional but friendly relationship and she was definitely a business mentor of mine in terms of mentoring me about the law and also how to run a business.

And when she said that she was going to shut down, I saw an excellent opportunity to get out of the law firm model that I had, which is the Law Office of Gabriel Cheong. And the reason why I no longer wanted to practice under that name, the Law Office of Gabriel Cheong, was because I was actually thinking about further on down the road, many, many, many years down the road when I no longer wanted to practice law anymore or I wanted to transition into something else, I wanted to make sure that this business that I was building had value.

So if I had a law firm that had my name attached to it, I can bring value into it, but a large part of that value would disappear once I'm no longer in it. So if I had something that was a brand unto itself that didn't have my name on it, that I could build goodwill outside of myself, it is an asset that I can build that is sellable in the future. And that was really the main driving force for why I sort of abandoned the Law Office of Gabriel Cheong and I took on Infinity Law Group because I wanted that brand.

Aaron Taylor:

So you do mostly divorce and family law with some estate planning. If you could characterize, I don't know, a typical day or maybe even a typical week for you, what would it look like?

Gabriel Cheong:

Mostly I would say it varies of course, week by week, but on average I would say maybe once or twice a week I would spend a couple of hours in court. Most of the work that I do is me sitting in the office talking on the phone, doing emails and trying to negotiate with people. I think people have a misconception just like when they see on TV with Law and Order with criminal attorneys and stuff like that, most of the work that we do as litigators is done in court. But we don't actually, because if you get to the point where you are in court, that means that you haven't been able to resolve the case with the other party or with the other attorney, and you need a third party person to come in to intervene like a judge or a mediator or something like that.

If you had a good case and if you do your job right, hopefully you don't end up in court that much. And most of the work that you do is actually on paper trying to draft agreements, trying to negotiate, trying to come to a place where the two parties can agree with each other because at least with family law, there's rarely ever winners or losers in what we do. You have a lot of property, you might have kids, you might have other things, and it's just a matter of dividing the stuff and then also perhaps dividing the time so that each parent gets to have time with their children. There's rarely ever winners and losers, and I think people see it that way sometimes and it's not helpful to coming to an agreement.

Aaron Taylor:

All right. So Gabriel, if you could explain to us what types of family law matters do you handle specifically?

Gabriel Cheong:

So family law, the reason why I love family law I think is because it touches on so many aspects of people's lives and also it touches on so many aspects of the real world and also at their areas of law. I think if you ask any other family law attorney, they'll tell you that family law attorneys need to know not only about family law, but a little bit about everything. We have to be counselors, we have to be their attorneys, we have to be their finance person, their accountant, all at the same time, only because we're not only dealing with their families, we're dealing with their entire lives, and a lot of it has to do with money. We have to know how to read financial statements and bank ledgers and business ledgers and balance sheets. So we get a good sense of all of that stuff.

Now in terms of family law also, there's a lot of different ways you can interact with this field that we call family law. The traditional one is you're an attorney, you represent somebody, you go to court and you advocate for them. That's a very traditional way to do it. Nowadays, there's also a lot of different things you can do ancillary to that. So more and more, there are people that are looking for family law or divorce mediators. Now a mediator is somebody that comes in and tries to help couples work out their differences. Now, mediators don't have to be attorneys. They can be mental health professionals and therapists, but a lot of the times if people are going through divorce mediation, meaning not only are they trying to salvage their marriage or rather than trying to salvage their marriage, they're actually trying to mediate a divorce, then that's really helpful when a divorce attorney comes in because we can give them some guidance.

And what we do as mediators, which I do as part of my practice, is you sit with both couples down and you don't represent either one of them. Your job as a mediator is a neutral third person. The role of the mediator is to try to get the two parties to come to an agreement on their own lives. You're not telling them what to do, you're not really telling them what the law is. You're trying to get them to agree to something that they can live with themselves because if it's something that they can just go to court and get the law or a judge to be on their side for, why would they need to mediate anything?

The issue with family law is that there's not a lot of black and white issues. A lot of it is negotiated. So if the parties can come to the table together themselves, it's usually the best way to do it. It's less fighting. It's cheaper because there's less attorneys involved. And also nobody gets disappointed because it's an agreement that they both entered into. It might not be everything that they had wanted to come into, but they can accept it. Whereas if you do traditional litigation, either one or both parties are bound to be disappointed.

Aaron Taylor:

So we've talked a bit about traditional litigation and mediation. I understand that you also do conciliation. How does this compare to mediation?

Gabriel Cheong:

Conciliation is somewhat similar to mediation, but it's usually done through the courts. So the parties have usually had attorneys already. They've gone through the litigation process and they're almost at the end, so they're almost ready for trial. But they are so close in their positions that judges think it might be a waste of time and money and resources for them to go to trial. So instead what they do is they send them to conciliation and the job of the conciliator is to try to get the parties to settle and to try to force the parties to settle really. And the difference with mediation is that with the mediator, we don't try to force them to do anything. They do it on their own. With conciliation, you're being a little bit pushier and it's usually done with either a retired judge as a conciliator or an experienced attorney.

So it's usually something that you do later on in your career. You're giving them a different perspective because believe it or not, parties sometimes don't listen to their own attorneys when their own attorneys tell them to settle. And it's helpful for a third party to come in. Somebody that's also very seasoned to say, "Hey, your position's not good here, you might as well settle because you're going to spend the same amount of money to get the same result as you would if we settled today." And you try to work on that with both sides to try to get them to meet in the middle. At the end of the day, it's still the decision of the clients to want to settle, but the conciliator really tries to push them and nudge them towards a certain position. So I do that through the courts as well. It's a volunteer service through the courts here. We can also do it as private pay conciliation.

Aaron Taylor:

I've read a little about guardian ad litem in Massachusetts and how it's used to avoid trial. Do you have any experience with this sort of work?

Gabriel Cheong:

So another thing that I've done in the past, sort of a fourth avenue, you can look at this family law sphere is guardian ad litem work. And what a guardian ad litem does here in Massachusetts at least is we go out and investigate families. So with judges, judges sit on the bench, they don't really get off the bench to see what the situation on the ground is. So if parents are coming in saying, she's a bad parent, he's a bad parent, well, how's the judge supposed to know who's telling the truth and who's not? It's helpful to send somebody out there to see what's going on. Is the kid having a good interaction with these parents? How do they interact with them? What do they say about these parents? What do other people say about these parents? You go and visit people's houses and see, well, is it a safe, clean, and healthy environment?

Is there clean clothes and food in the fridge and a bed for this child? So that's basically what a guardian ad litem does. We work for the courts. We don't represent anybody, and at the end of the day we write a report usually about what we see out in the field and we write a recommendation on what the custody situation should be or how the parenting plan should be structured based on what we saw and what's in the best interest of this child.

A lot of what the guardian ad litem does with the report is it does push parties to settle. Now the guardian ad litem itself, we do not push anybody. But once the party sees the report that we have that it's going to be submitted to the judge, a lot of the times the parties do settle because they can see that what we say is basically what is going to be presented to the judge and it's very persuasive. And then if they don't settle, they go to trial and usually the guardian ad litem gets called as a witness to the case because we've gone out and witnessed all these people talking about the family and what the family situation is like.

Aaron Taylor:

As the owner of a law firm, how much time do you spend on administrative tasks as opposed to the classic practice of law?

Gabriel Cheong:

The good news is that over the years I've been able to run a good business where I can get help. So now I have one associate that works with me. I don't have a secretary. Between the two of us at the firm, we do most of the secretarial work. So I've built a system where most of what my associate's time is doing is legal work. A lot of the administrative time from both the attorney, the associates and the secretary's end in law firms is devoted to billing. Not only are the attorneys keeping track of their time and billing, they're sending out letters to clients with the bills, chasing after clients for the bills. The secretary usually compiles the bills and make sure that there's collection on it, moving funds from the trust accounts over to the operating account. So a lot of it has to do with those administrative tasks.

And I've eliminated that. Most of what I do at my firm is we try to charge fixed fees for divorce litigation, any type of divorce. That way we collect the fees upfront. There is no hourly billing. In terms of collection, there is never any collections. We don't have any accounts receivable. All of our clients that are with us have paid in full, and that really dramatically decreases the amount of time that is needed for collections from a law firm. Another thing that we do here is we run a pretty much paperless office. Everything that comes in gets scanned. If it doesn't need to be on paper, we don't keep it around on paper. There's really no filing involved. Everything can be accessed right on the computer, and I think that keeps a lot of time free for us because we don't have to go around filing things or searching for paperwork or spending money on storage, for example, for boxes and boxes and boxes of paperwork.

We don't do any of that. So that frees up a lot of my time. That frees up a lot of my associates' time so that I can concentrate more time on doing the business of law side. We have a division of labor here at my firm where my associate does a lot of the nitty-gritty work of the firm. I do a lot of the overall planning of the cases and the rest of the time what I do is I spend time doing the business end stuff and marketing my firm, going out and networking with people, meeting new contacts, new clients. So that's mostly what I do.

Aaron Taylor:

So you touched on it, but how do you find clients?

Gabriel Cheong:

The marketing piece is difficult to describe, but there is a plan to the madness. So when you're first starting out, I think a lot of people tell you, oh, referrals are sort of the bread and butter of your business, and as much as that is that used to be true, I think that's less and less true nowadays, especially because of the economy that we're in. More and more people have less and less cases to come in. Less and less of our clients are able to afford attorneys. There's less of a pool of available clients. So a lot of attorneys are holding onto cases more so than they used to in referring cases out. That doesn't mean that we don't get referrals, that doesn't mean we don't give referrals, but I think generally speaking, there is less of it. With referrals also, the tricky thing is people only refer cases to other people that they trust and that trust needs to be built.

So when you're a new attorney starting out, for example, straight out of law school, you don't have that built in trust with people. That's something that needs to be developed. So you're not going to get a lot of referrals in the beginning. You do get more and more referrals as time goes on. So I've been in practice for seven years now and I do get a lot of referrals from other attorneys, but if I had to depend on referrals in the beginning, I think I would've starved. There's a two-prong piece to it where you're also doing networking referrals, but you're also trying to do a direct client acquisition as well.

Mostly about how we do that nowadays here is through online because with everything else that people do when they search for either restaurants or businesses, lawyers, they go online to look. There's no such thing as phone books anymore. Everybody is looking for reviews and recommendations from other people. So it's really important to keep up a good online presence so that not only can people find you, but once they find you, they can also research your reputation online so that they actually want to engage with you.

Aaron Taylor:

What would you characterize as best part of being a lawyer and what would you characterize as the worst?

Gabriel Cheong:

Ooh, that's actually a tough question. The best part of being a lawyer I think is that I feel like I am helping people. I really do. There are of course a lot of these cases that come in that are pretty routine and you go through the motions and you get it done, you get people divorced. But then there are these cases that come in every once in a while that as much as divorce attorneys, we train ourselves to be detached from our cases and from our clients. Sometimes you really do have to get in there and you feel for these people. I had a client recently that lost their child because of a administrative error basically, and they lost their child for about two years to a parent that was never there for this child, and we just went to trial and I managed to get that child back to the parent that was taking care of the child all these years.

When you see something like that, that you did something good, that you did something that was right, I think that is the best reward you can have and no money that your client can pay you or not pay you can make up for that. In terms of the worst part is on the similar line actually, because of the work that I do, sometimes you do have these cases that are so heart-wrenching and yet there's nothing you can do about it, whether because it's the law or the facts are just not on your side, there's nothing you can do. Those are the cases where you try really, really hard to not get emotionally involved, to not feel for these people because if you do, I think you take it home with you and that's extremely unhealthy. But it does happen every once in a while.

I mean, we're all human as much as we try to detach ourselves, and I think that's why we have, as a profession, high rates of drug addiction, alcoholism, and mental health issues because we deal so heavily in other people's emotional lives day in and day out, that sometimes it does affect us, but hopefully we find resources to help us with that. So here in Massachusetts, for example, we have a program that's free to all attorneys that if you have issues that you can go talk to a therapist or a mental health professional that can get you through it and it's free. It's paid through our bar dues and I know other jurisdictions have that too, but that's, I think, is the worst part of it. It's basically the opposite side sides of the same coin. Things I really love and things I really hate reside together.

Host:

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