Sunday, July 15, 2018

Plan Your Divorce Like a Disney Vacation?

I love planning Disney vacations for my family.  Next to running, it is probably my favorite hobby.  I listen to Disney vacation planning podcasts.  I belong to a number of Disney Facebook groups.  I take my Disney planning seriously.  What the heck does this have to do with the Trenches?  Plenty, as it turns out.
Interesting thing about planning a Disney vacation is that even though it’s just one destination, there are hundreds of vacations to plan at Disney.  There are three levels of resorts to stay at:  deluxe, moderate and budget, and there are numerous resorts in each category.  There are signature restaurants, table service restaurants and quick service restaurants.  There are 4 theme parks and 2 water parks.  You can go to the parks early in the morning, or late in the afternoon, If you don’t want to go to the parks, you can  stay by the pool, go fishing, boating, horseback riding, play golf, play tennis, shop, go to the spa.  There are so many combinations, but it is all a Disney vacation.  Whether it’s your Disney vacation depends on what you and your family want to do.
Here in the Trenches, everybody is getting divorced.  That’s the same, no matter what.  Just like a Disney vacation, no two divorces are the same.  Some people work out their own divorce details between just the two of them. Some of those folks get legal advice and some don’t (I personally recommend ALWAYS getting advice before signing anything, and not because I’m a lawyer, but because once you sign it, it’s over and you can’t change it).  Some people need the help of a mediator, and use a lawyer for legal advice (see a theme here?).  Some people need their lawyers at the mediation with them.  Some people use a child therapist to help them with parenting issues and a financial professional to help them with financial issues.  Some people divorce using the collaborative process with a full team; some use the collaborative process with a partial team; some use the collaborative process with no team.  Some people resolve their divorce using their lawyers to negotiate; my goodness, there are so many ways to do that, meetings, letters, draft agreements, phone calls.  Then, there’s litigation and the entire court process.  Within each method, there are a ton of permutations.  Maybe there’s a formal sharing of information, and maybe it’s more informal.  How you get divorced depends on you and your spouse.  

Here’s the difference between getting a divorce and going to Disney, besides the obvious.  There are tons of resources that talk about how to plan a Disney vacation.  The podcasts and the Facebook pages have travel agents as well as regular folks trying to plan vacations.  There are pages for people who run Disney, who are Disney foodies, who are Disney novices, who are Disney addicts.  Everyone shares information of what worked for them, what didn’t work and why.  They talk about what they would do differently and what they would do the same.  There’s nothing like that for the divorce process.  Maybe there should be.  Too bad ethics rules probably preclude lawyer participation. Here in the Trenches.

Tuesday, February 27, 2018

Build a Stronger Relationship to Avoid Divorce

Daughter loves her mama.  That is the only thing that explains why, year after year, she drags herself out of bed at 3:00am two mornings in a row to run with me in the Disney World Fairy Tale Challenge over Princess Half Marathon Weekend.  She hates to run.  Lest you think I'm kidding, let me tell you that although she is an awesome personal trainer, she runs only two days a year, both of them at Disney (ah, to be young enough to run 19.3 miles over two days with no running training!).  She really hates to run.  So, why does she do it?  If you ask her, she will go into a long story about how the first year I ran, she didn't, and she swore that if she had to get up that early again, she'd better be running.  There are a lot of people who line the race course who also get up that early, but who would never think that they should just get out there and run too.  No, she runs because it is something we do together, just the two of us.  It's our thing.  We plan the costumes.  We plan the character stops.  I pace myself to her.  No matter how much she hurts, she always kicks the last 100 yards to try to beat me (and usually succeeds.  I have no kick).  She starts wondering aloud why she's doing it at mile 7 of the half marathon, and by mile 9, she just wants to finish.  It's what we do, and I so appreciate she does it with me.  I enjoy doing it by myself, but I love it more with her.

What's important about Daughter and Princess Half Marathon Weekend is twofold.  First, that Daughter does it for us; and second, that I appreciate the gift.  I don't ask her to run every race of the year with me; I don't expect her to run this weekend with me.  I treat it as the gift to our relationship that it is.  That last sentence is so important.  What Daughter is giving is not a gift to me; it is a gift to our relationship which is given freely and generously.  There are gifts I give to our relationship too, also freely and generously given.  The gifts are not expectations.  They are not demands.  They are not one of a million gifts.  They are jewels to be treasured - and I do.

Here in the Trenches, I see few gifts.  Some couples never give each other gifts. Some have forgotten how to give gifts to each other.  Certainly, they buy each other things (most of them, anyway), but they don't give each other the thing that sings to those they love.  I am a big fan of Gary Chapman's The 5 Love Languages: The Secret to Love that Lasts, because I do believe that each person has a way that for them communicates emotional connection.  For those of you who haven't read Chapman's book, the five love languages are:
  • Words of affirmation
  • Acts of service
  • Receiving gifts
  • Quality time
  • Receiving touch
You might have guessed that I am an acts of service and quality time kind of girl.  If you haven't guessed it, Daughter sure has.  Some folks don't put a lot of stock in Chapman's theory, but I do, and here's why.  Taking the time to figure out someone's love language and how to speak it, tells the ones for whom you care that you do indeed care enough about the relationship to make the effort.  Even if the attempt is imperfect, just trying communicates caring and connection.  Letting someone else who you love know your love language is scary.  What if you let them know in every way possible how you want to be treated and how you want caring communicated, and they don't even make the attempt?  Hmm, that's a problem for the relationship.  What if you're an acts of service person, and they give you words of affirmation?  Not so much of a problem, if they're words of affirmation folks and at least they are trying to communicate.  Sometimes you have to adjust or educate, and in the end decide whether it is enough that they express love, even if it's not your core way.  Relationships have their ups and downs.  The depth of the connection often determines whether what goes down also comes up.  When there is no up, I see you in my office.  When there is effort at connection, I usually don't.  Here in the Trenches.

Monday, February 12, 2018

The Rules of Depositions

Let's talk depositions.  Everyone knows about depositions, because they're the only form of discovery, or information gathering, that's interesting or dramatic enough to be put on television. Any TV show that involves a lawsuit, shows a deposition. For those of you who have never watched TV or a movie involving one, a deposition is the taking of oral testimony under oath outside of a courtroom in front of a court reporter.  The person taking the deposition can ask any question that is likely to lead to finding evidence that is admissible in court.  That means the person taking the deposition can ask almost anything that is even tangentially relevant to the case.  That covers a lot of ground.

We take depositions here in the Trenches for a few discreet reasons.  We may need information.  We may want to pin the other side down to a position.  We may want to see how you appear when you testify.  We may want to see the weaknesses in your case and in you, so we can use that at trial.  We may want to scare you into settling the case short of trial.  Whatever the reason, whenever I have a client whose deposition is going to be taken, I send them my letter with all the rules of depositions, and I set them out here:

             1. Tell the truth. No fudging, no shading, no exceptions to this rule. Your answers are under an oath to tell the truth.

            2. Your testimony is extremely important to the case. If you are one of the parties to the case, your deposition testimony may be used instead of testimony at trial, or to contradict what you say at trial.  

            3. This is serious business. No chit-chat or small talk with the other lawyer; they are not your friend, even if they seem to be trying to be.   No sarcasm, no facetious remarks. The cold transcribed record will not get the joke  and it will reflect badly on your testimony. 

            4. Listen to the question. Take your time. Make sure you understand before you answer. If there is any part of it you do not understand, say so, and ask the attorney to repeat or rephrase it so you understand what you are answering.

            5. Answer the question – not some other question – just the question you are asked.  Say no more than is necessary to answer the question asked. Do not volunteer extra information or explanations.  If the other attorney wants more information, let him ask follow up questions, do not volunteer. At a deposition you should adopt a defensive posture. This is not your opportunity to tell the whole story; the other attorney doesn't care and if their client is a jerk, they already know it.  Save it for trial.

            6. Do not guess. If you do not know the answer, say so. If you do not remember he answer, say so. It is your job to give the answers you know – not to speculate    It is okay not to know or remember every detail or date. But if you answer, that is the answer that will follow you           throughout this lawsuit. Answer only what you know.

            7. You are the witness – not the lawyer. Do not argue with the lawyer for the other side. Do not object. Do not try to sell the case. Just answer the questions.

            8. Watch out for questions that paraphrase your answers. A lot of times the lawyer  may take your ideas and put them in other words – changing your meaning in   ways that you might not catch at the time. If the lawyer asks if his paraphrasing is accurate, you are entitled to say that you would rather stand on your answer and stick with the way you put it.

            9. Beware of absolutes. Watch out for questions that use the words "always" and "never."

            10. If asked, admit preparing for the deposition. There is nothing wrong in going   over your testimony in advance.

            11. If I object – listen. If you are talking when I object, stop talking at once. An  objection is a danger signal. It says you should put your mouth in the low gear and move your brain into high gear. Even if you think you heard and understood the question before the objection, ask to hear it again.

            12. I am not allowed to interfere with the other lawyer’s questioning of you. This means that we may occasionally object, but we are normally not allowed to say anything, nor do anything to affect your answers.

            13. If you think you have made a mistake in your testimony, let me know before he deposition is over. We will fix it. Mistakes cannot correct themselves. Make sure that you ask for a brief break, and then explain the mistake to me.

            14. If you get tired, ask for break. If you need to go to the bathroom or to get cup of coffee, say so. And if you start to get argumentative or talkative – which is natural when you get tired – I will ask for break myself; in that case, don't argue that you don't need one. 

            15.  This is the MOST IMPORTANT rule.  Practice having your deposition taken.  I know, you know your life better than anyone else, so that seems stupid.  I bet, however, you've never had your deposition taken.  It is an experience for which you need to be prepared as possible.  You will react differently under the pressure of questioning, I guarantee it.  Ask your attorney to arrange for a practice session.  If your attorney can't squeeze one in, ask a good friend to take your financial statement and at least part of your answers to interrogatories or the pleadings and REALLY GRILL YOU on them.  I mean, be really tough.  Why did you say that?  Where did those numbers come from?  Didn't you really just make them up?  Your spouse really didn't do X, so why did you say that? Practice, practice, practice being questioned under pressure.  Tell whoever is helping you to be really tough.  Take it seriously.  Be able to give firm answers.  Don't be wishy washy.

Follow the rules.  This is not a time to freelance.  Here in the Trenches.

Monday, February 5, 2018

Saving Money on Your Divorce

I had a client who actually read the letter I send with the other side's discovery requests.  I know, to you, that statement is not shocking.  To anyone who toils here in the Trenches, that statement is worth framing.  It gets better.  Not only did this client actually read the darn letter, that I have spent years revising and honing, but she did as I asked.  I requested her draft responses and documents in 20 days; she got them to me in 19.  I requested that she answer all the interrogatories in Word and send them to me in electronic form; she did it.  I asked that she go through the request for documents and let me know what she was providing and what didn't exist; she did it.  I asked that she provide me all her documents according to request number, in chronological order and save it electronically; she did it - there was not one additional document I needed to get. I almost fell off my chair. She didn't tell me it was too hard to find or ask for the documents.  She didn't argue with my about why what was requested was necessary to produce.  She didn't moan and groan about how busy her life was (it is) and how she just didn't have the time to do what I requested.  She couldn't believe I was amazed, because isn't that what I asked?  Well, yes, but almost no one does it.  She was shocked, because she couldn't fathom why anyone would want to pay hundreds of dollars an hour just to have someone else do what she did.  Me either.

Lawyers and their paralegals are expensive.  Clients are always asking how they can save money on legal fees.  I always tell them that the best way is to do as much of the things that they are able to do as possible, and save the lawyer for things that only a lawyer or a paralegal can do.  Organizing documents by date, scanning paper and typing complete answers to questions in a format that is easily transferrable to another document are not things that only legal personnel can do - they are things most people can manage.  This client probably saved herself $1,000 or more by doing what I asked.  Sometimes, your lawyer really is trying to save you money, if only you put in the effort.  Here in the Trenches.

Wednesday, January 31, 2018

The Two Final Types of Hearings, and What Really Happens in the Judge's Chambers

OK, last two types of hearings, mostly because they don’t warrant a post by themselves:  settlement conference and pretrial conference.  The settlement conference is exactly what it sounds like - a court appearance devoted to settlement.  The settlement conference usually takes place 3-4 months before trial.  In different courts in Maryland, different things may happen at a settlement conference.  If you have a court-ordered custody evaluation, the evaluator would give his/her report on the record (recorded after being sworn to tell the truth).  You or your attorney are allowed to ask clarifying questions only.  At the settlement conference, the magistrate may try to help settle the case.  They may make suggestions or evaluate the case if it will help. If you settle the case, the magistrate may put the agreement on the record or maybe you could get your divorce at that hearing, if you have reached full agreement. 

If both you and the other party have attorneys, the conference could take a number of different forms:  it could be in the courtroom and very formal on the record, or the Magistrate could be more informal and meet with the attorneys in their office, and then the attorneys come out and talk to their clients and each other.  The latter form sometimes makes clients really uncomfortable, because it's somewhat like the Wizard of Oz, in that you don't know what is being said in chambers (which is what we call the Magistrate or Judge's office).  Here's my $.02, having been both a client and one of those attorneys.  I prefer the informal.  When people know they are being recorded for posterity, which is what happens at ALL TIMES when you are in a courtroom (the recorder is almost never turned off), they are not going to think out loud.  They are not going to ask curious questions.  They are not going to have a conversation. No one is going to assess the merits of various positions in the case.  All talking in a courtroom is formal, and usually very one way - you talk to the judge/magistrate, and they make a decision.  In chambers, there is a lot of give and take.  The Magistrate will verbalize assessments of strengths and weaknesses in a case, and as they WILL NOT be the trial judge, are not prejudging your case.  There are times I like that, because often one side or the other will not see a weakness in their case that could be fatal; sometimes one side thinks they have a smoking gun which really is not. Having a third party tell them that can make all the difference in the world.  Sometimes, the Magistrate comes up with a compromise or a way of reaching compromise of which no one thought.  At any rate, their point of view is from the receiver of the evidence, so you get some idea how the Judge might view your case and your smoking gun.  I think that's very helpful, and yes, I thought so as well when I was you, the client, and wasn't invited into chambers.  It's maddening for the client not to know what's being said, and I know you imagine that we're all back there having coffee, cracking jokes, exchanging the secret handshake and "fixing" your case. I won't lie to you and say that we're all deadly serious back there, but there's no secret handshake, and we don't predetermine your case.  What does happen is that we come up with some different insight to bring back to you so we can seriously discuss settlement.  

Here's the big secret - the Judge/Magistrate doesn't want to decide your case.  I know, that's what they're paid to do, make a decision.  There are, however, more cases in the courts than there are judges and magistrates to hear them.  They have more than enough to do without your case. They, as well as we, know that families are better served making their own decisions.  The studies show that folks who have a hand in crafting their own settlement come back to court less often, if at all, and that's better for families and for the court.  The judiciary knows this as well as those of us in the Trenches, so they really work hard to help you settle your case.

The pretrial conference is perhaps the most deadly boring of all court appearances.  It is the hearing at which the court makes certain the case is ready for trial.  In some courts, that’s where you get your merits trial date if you asked for more than a half a day of trial.  In others, you already have a trial date and the court is making sure that you have identified all of your potential witnesses and designated your documents, photos and other evidence.  They want to know that there are no outstanding discovery disputes or other issues that will hold up trial.  THe court also wants to make sure that you can try the case in the amount of time you told the court you need for trial (remember I talked about this when we discussed the scheduling conference?).  The court requires clients to be at this hearing as well, but for the life of me, I can’t understand why, if you already have your trial date.  Boring and short, those are the bywords for pretrial conferences.  Here in the Trenches.

Tuesday, January 16, 2018

What to Expect For Your Contested Hearing

The next hearing you will have, after the scheduling conference, if you requested it, is called a pendente lite hearing.  That means during the course of this litigation.  At a pendente lite hearing, the court will decide issues from the date of that hearing until the date of trial (unless you come to an earlier agreement).  The types of issues the court will determine are child access, child support, spousal support, attorneys fees and court costs like the payment of experts.  Issues are either determined with prejudice or without prejudice.  If an issue is decided without prejudice, that means that any decision is not to be used at any later hearing or in any further negotiations as an admission that either party thinks that’s how the issue should be decided finally.  

What I have to say next applies not only to the pendente lite hearing, but also to other contested hearings.  The first thing you have to know is how much trial time you have.  Simply because you have two hours of trial time doesn’t mean you have that much time.  You have half of that time in a normal situation.  If your children have a best interest attorney, you may have even less time, because then there are three sides making arguments.  When you look at your half of the time, not all of it is putting on your witnesses.  Some of it has to be used for your opening and closing statements, and some of that is used for cross examination of the other side’s witnesses.  So, if I have two hours of trial time, I interpret that to mean I have roughly 40 minutes to put on witnesses.  That’s not a lot of time, and you have to plan your time carefully.

It’s not just time you need to think about.  There are rules to presenting evidence and documents.  There are ways witness testimony has to be presented.  It’s not like having a conversation. There are rules that govern what can and cannot be said.  You also have to think about what would be persuasive to your audience.  Every client thinks their story is egregious and that the court will be shocked; that’s usually not true.  It takes a lot to shock a judge.  You make decisions on what to present based on what will help your client get what they want.

What about for you?  What should you expect heading into a contested heating?  First, plan to spend a lot of time with your lawyer preparing your testimony.  I know it’s taking a lot of time away from work, but it can’t be helped if you want your hearing to be as successful as possible.  Second, plan to make yourself available for a LOT of phone calls from your lawyer, especially in the last few days before the hearing.  The facts of our lives in the Trenches are that everyone tries to settle a case before a hearing.  No one wants to try a case without having tried to settle it.  Some cases settle well before trial; others settle on the eve of trial.  When the case settles on the eve of trial, all of the back and forth between the sides and the refinement of details takes place in a compressed time frame.  It is not unknown for negotiations to continue until 11pm the night before trial.  Be prepared for that- it’s stressful and requires you to think quickly and analyze options on the fly.  Your lawyer is used to this and is thinking clearly and able to help you analyze options.  Don’t be afraid to ask them for help weighing your options.

If you do end up going to trial, don’t mistake your lawyer’s attempts to settle for being something that they aren’t.  Your lawyer is prepared for trial.  Your lawyer is prepared for trial as if the settlement discussions never took place.  Your lawyer’s attempts to settle the case doesn’t mean they have no faith in you or your case, or that they’re not going to do their darndest for you in court.  One of the great things about working in the Trenches is that we can move in two or three directions at a time.  We can try to settle and at the same time prepare to go to trial; for us, they are not mutually exclusive.  So, keep the faith, ride the madness and believe your lawyer is on your side.  Here in the Trenches.

Saturday, January 6, 2018

Look Confident at Your First Family Court Hearing

I don’t know about you, but the most stressful thing for me in any new situation is not knowing what to expect.  I hate it.  I like to know where I’m going and at least an idea of what’s going to happen.  I imagine most of my clients feel the same.  Probably the most stressful thing in their lives is going to court.  In this series of posts, I’m going to outline the different hearings you may have in your Maryland case, and what to expect.  

The first hearing is the scheduling or initial conference.  That’s the hearing at which you are going to receive your court dates.  Let’s get you there.  The first thing you need to know is when and where to go.  Check your scheduling order for the time and the date.  Google the address and locate the area parking.  Calculate how long it will take you to get to the courthouse and add 20 minutes.  You don’t want to be late and you will have to go through security and a metal detector (no knives, horse blanket pins or other weapons).  Oh, and don’t forget your calendar, because this is the hearing at which you will get your court dates.

If you’re feeling really ambitious and you have access to the internet, look up your case on Maryland Case Search. Depending on the county your case is in, the magistrate and hearing room will be listed there. If you don’t look up your case in advance, don’t worry.  Inside the lobby of every courthouse in Maryland is a listing of the day’s court docket.  In most of them, it is electronic, although in some, it is still a paper docket, posted on the wall.  The docket will list your name, case number, courtroom number and location of the courtroom. Head to the courtroom.  

In the courtroom before the hearing time, you’ll see a person sitting up near the magistrate’s bench.  That’s the courtroom clerk.  The clerk will check in all the parties for the morning’s cases.  There will be a number of cases on the docket; you will not be the only one in front of the magistrate at your hearing time.  At the hearing time or shortly thereafter, a door will open in the front of the courtroom near the magistrate’s bench and the magistrate will come out.  When the door opens, you stand until the magistrate takes the bench and instructs you to sit down.  Then you sit down and wait for your case to be called.

Until your case is called, you don’t talk.  Period.  When the magistrate calls your case, you go up to the tables in front of the courtroom.  Many of them are marked either “Plaintiff” or “Defendant.” Some are not marked at all.  Sit at the table marked for your party designation in the case, or ask the magistrate where to sit.  When you are called on to speak stand up to speak unless the magistrate tells you otherwise.  Refer to the magistrate as “Your Honor.”  At no point are you to talk directly to the other side while you are in front of the magistrate; you only talk to the magistrate.

The magistrate is setting a lot of dates at this hearing. In some jurisdictions, you will have received a notification of the need to take co-parenting (parenting during divorce) courses; in others, those dates will be assigned at the scheduling hearing.  The court will ask whether you have any pendente lite (during the course of the litigation) issues that can’t wait until the merits trial. Those are issues like child access, child support, spousal support, attorney’s fees and suit money.  The court will ask how long you need to try those issues before the court.  Be aware that some courts have limits on the amount of trial time they will give you for pendente lite issues.

Some courts bifurcate, or divide, child custody and monetary issues.  Others do not.  If it is bifurcated, the court will give you two sets of dates.  Otherwise, you will be asked how long it will take to try your case.  This is important, because the court will not give you more time than you request if it turns out you underestimated your time.  Some courts will give you a trial date at this time; others will give you only a pretrial conference at which they will assign a date.  By “trial date,” I also include multi-day trials.  The magistrate will also assign a settlement conference date at which the court will see if they can help you settle your case, and a pretrial conference, to make sure you are ready for trial.  Some courts make you wait in the courtroom to receive the papers indicating your court dates; others will just mail you the papers with the dates.  Either way, it’s important to write the dates down.

One final point for you to remember.  If you don’t have a lawyer at the scheduling conference, and hire one after that, the lawyer will have to be available on the dates you chose at your scheduling conference.  The court will not change court dates because your new lawyer can’t make them.  My advice?  If you intend to hire a lawyer, either do so before the scheduling conference, or make sure you have the calendar of the attorney you intend to hire with you in court.  Otherwise, you need to find a lawyer to match your court dates.  Here in the Trenches.