Liverpool, NY asked in Family Law and Child Custody for New York

Q: How do I file ineffective counsel before my case ends. My lawyer will not submit any evidence I have

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2 Lawyer Answers
Howard E. Knispel
PREMIUM
Howard E. Knispel
Answered
  • Divorce Lawyer
  • Commack, NY
  • Licensed in New York

A: You can dismiss you Attorney at any time.

Peter Christopher Lomtevas
Peter Christopher Lomtevas
Answered
  • Divorce Lawyer
  • Brooklyn, NY
  • Licensed in New York

A: These are two of the most important issues plaguing American men in family court, yet no one ever reviews the details. These have to do with the two areas of lawyer performance the asker brings up.

The first is the ditching of a lawyer mid-trial. Lawyers are not a plug-and-play device that can be exchanged at will. The lawyer is the presenter of the case that the lawyer assembles and prepares. A family court proceeding is not a haphazard free for all, but rather a very carefully orchestrated undertaking. If the case is for an initial award of custody, the lawyer has to put together vast amounts of information much of it testimonial in a clear manner for trial. Also if the matter is a modification of a prior order of custody, the lawyer must show a sufficient change of circumstances. None of this can happen by switching attorneys mid-trial.

Then we get to the evidence in the case. What many clients believe is compelling evidence many lawyers may not. A video or text message the client thinks is the case cracker may in fact boomerang on the client. A court is also involved in interpreting evidence, so a flurry of police reports can be used against the client to make him out to be too trigger happy with police. The person who should decide what evidence goes in is the lawyer, not the client. Family Court is not a common-sense operation that a client can do himself. Family Court is a court of policy. Public policy as fashioned by the court is in charge of each case, and common sense is of no value at any time. Clients who dictate by common sense lose everything including the kid.

Lastly, there is no such thing as a claim of ineffective assistance of counsel in family court. That is a criminal appeals ground that does not apply here. While the client is free to pick and choose his attorney as he pleases, doing so in a crucial proceeding like one for an initial award of custody would be suicide. Once the case blows, the order remains to forever impact all subsequent petitions for modifications.

Hence the best advice is for the client to stop playing attorney, stop deciding on evidence and let his attorney do his job.

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