Tuesday, April 18, 2017

It's All About the Process



It's time to revisit process. Remember, I'm the process girl. The most important part of any process for dispute resolution is the first step: clarifying your interests and goals for the resolution of the dispute. If you don't take your time with this step and really flesh it out, then you have no idea what represents an acceptable resolution.  You might obtain a resolution or ask a judge for a result that doesn't actually meet your needs.  Do you want that to happen? Do you want to spend the time and effort (and many times, money) on resolving the dispute, only to find it doesn't work for you?  Heck no.

Here's the other thing, no matter what the process choice, settlement is ALWAYS a possibility, even if you're going to litigation, even if it's the first day of trial. If you know your goal and the interests that underlie it, you can assess options quickly, make tweaks to proposals and make decisions efficiently.  If you don't, you're destined to spin your wheels and dither (I hate dithering, even though I'm probably guilty of it myself).

I was reminded of all of this yesterday.  I had a case with an attorney who is renowned for taking little to no interest in a case until the day of trial.  Now, this attorney is a really good trial attorney, and he has other attorneys who prepare the case for trial so he can just show up and try it.  He is, however, the only attorney on his side with any authority to reach a settlement.  That means that if you want to settle with this attorney, you are necessarily unable to do so until the night before trial or the morning of trial.  That's tricky, because if you use your trial time to try and settle and don't settle the case, you have lost your trial slot and won't get another for month, and you will have annoyed the court.  Usually, a delay and pissing off the court are not in your client's best interest.  Ergo, if you're going to try to settle, you had better be reasonably certain it's possible, and more, that you know whether it's going to happen in a reasonably short period of time.  The only way that can happen is if you know your client's goal for the representation.  As I like to say, a case about the money is never really about the money; the money stands for something.


What does all this mean for you?  It means that you want your attorney to spend a lot of time getting to know you, getting to know what is important to you, discovering what is working and not working about your present circumstance and why.  You want your attorney to dig deep with you about your hopes, wishes and dreams.  I know, that doesn't sound like "legal" work; it may feel like it takes a lot of time.  Maybe you feel like it's a waste of time.  It's not.  Spending that time with you lays important groundwork that enables you to settle your case in a way that meets your core needs, and it lets us here in the Trenches work efficiently.  Spending the time now will save you time, effort and money later.  It's a worthwhile investment in your future.  Here in the Trenches.

Wednesday, April 12, 2017

Dos and Don'ts From a Child of Divorce - Guest Blog


Daughter asked me to write a guest post on her fitness blog about the effect strength and balance training had on my running (see my post and her excellent blog here).  After I wrote my post, I took leave of my senses and thought it would be a great idea to have her write a post for my blog about her perspective and experiences as a child of divorce.  No sooner had I hit the send button on my text when I realized the huge risk I was taking.  What if her father and I not only turned her world upside down by divorcing, but we also totally screwed up the aftermath?  To say I was concerned would be to put it mildly.  Still, I promised myself that because she published my entire post without changes, I would do the same for hers.  Without further comment, here are Daughter's thoughts - Here in the Trenches.

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I'm not your average child of divorce. When it was announced to me and my brother that my parents were getting a divorce, a word very common in our household since both parents are family law attorneys, we handled it very differently. My ten year old brother got the news and started crying, a pretty typical reaction, but my five year old mind immediately went "yay! I get two of everything!" As well, not only was my reaction different, but our situation was different. My mother moved away as far as I could ever imagine... just kidding she moved into a house on literally the next street over. Throughout my childhood, until my father moved, I was able to pretty much move freely between the houses if I forgot anything or needed to go over. I'm not sure if it's because of their knowledge of the situation, or just because they were able to handle it well, but my parents were always able to go to back to school night and be in the same room, or go to school events and be civil and say "hi," which definitely helped the strange divide in our family. 
Just because my parents know better doesn't mean they always made the right decisions however. You can know everything in the world, but when it comes to your family, your emotions can cause you to act in ways that you weren't expecting. Your divorce attorney, or best interest attorney, or family friend who's gotten divorced twice and is hoping third time's the charm (fingers crossed!) can tell you everything right, or wrong, but sometimes it still doesn't resonate with you. During my thirteen years as a child of divorce (until i turned 18, then I was technically an adult of divorce but that sounds weird), I've learned the good and bad. Hopefully my experience, one that has virtually no memory of my family together, but also one that has knowledge of divorce and what to do and what not, can help with the hardest parts of divorce.

For the parentals:

Listen to your children. I know that seems like a duh of course I should do that, but I feel like many parents think they're listening, but are doing anything but. When the divorce is fresh, you're scrambling. Scrambling to adjust to your new life, maybe starting a new job, maybe in a new area, so I get it. You have a lot on your mind. But you know who else does? Your child. And if your child is anything like I was, he/she doesn't want to put anymore stress on you or "bother" you with anything until its too late. Too late = (for me) hysterical meltdown complete with incomprehensible sobbing so not really getting that point across anyways. The point of this, at dinner, go for a walk with the dogs, go get your nails did, but talk. Actually talk.

Keep some consistency. I know, you're like come on. You just told me that I'm scrambling to adjust to a new life, how do I keep consistent? It doesn't have to be hard. I'm talking as easy as Sunday night dinners. My father and I consistently went to hockey games. It was something we enjoyed doing together and we could just immerse ourselves in the game. It wasn't a time to talk, just time with my dad. My mother and I went through a rough patch and getting back together, we went and got our nails done every Sunday. I looked forward to those Sundays and it gave my life a bit of structure and it was fun times with my busy as heck momma. 

Have fun. Divorce is hard. It's hard on you, it's hard on your kids, it's hard on teachers who don't know who to send home letters to, it's hard for the mailman who's trying to find you, it's just hard. However, that doesn't mean your life is just a big hole of stress and darkness. You need to find some fun. Like I said in the last tip, I had fun with my parents. We had our own time to enjoy and to destress. My parents were busy. They both had their own businesses, taking people through the process our family was going through, and it took a lot of their time away from me and my brother. The times I remember from my childhood were the few really bad moments, but they were scattered in with really great times with each parent. 

Para los children:

Speak up. My big mouth has gotten me into more trouble than I can even count. However, the reason it's gotten me into big trouble is because I waited too long to say anything. I waited until my distress had built up so much that whenever I opened my mouth it was a huge sobbing/yelling/screaming fit. If I had just talked to my parents about things that were bothering me, instead of thinking I was bothering them with my feelings and shenanigans, it would have saved my household a lot of stress in an already stressful time. 

Be flexible. I know that you're the child and they're the parents and they're supposed to cater to you, but (again) this is a tough time for everyone. The amount of stress and emotion they are under through this whole process has the tendency to cloud judgement and make them a bit strange for a bit. You just need to roll with the punches (not literally and only to a point) and be flexible with how your parents are handling things for a while. Maybe work got in the way of your dance recital, but they sent grandma to record it to watch it later. I know it's not the same, believe me, but you need to realize they are doing their best. And if you feel like they aren't, say something. 

Accept change. I hate change. I'm a huge creature of habit and I don't like my life being uprooted. Maybe that stems from the constant change in my childhood with the family shenanigans, but whatever the reason, I hate change. But when your life is changing the most it could possibly change when you're a kid (aka any time before 18), you can't fight the change. If you do, you're going to be miserable. I know you were used to life as it was, but you need to be flexible and roll with it. Your parents are going to move, they're going to move on aka they're going to meet someone else that isn't your other parent, and the best thing you can do is stay positive that this is a good change and accept it.


The last thing I can say for both sides is that, this is possibly the hardest thing your family will go through. And the most important thing to remember is the love in your family. Just because your parents don't love each other like that anymore, doesn't mean they love you any less. Just because your children are acting out and saying how much they hate you (sorry mom), they don't. They just don't know how to express themselves in this situation. Your family is still your family, no matter what, and just remember the love and remember to love each other. 

Monday, April 10, 2017

10 Tips For Being A Good Witness


Today, I was a witness in a trial.  I hate being a witness.  There is nothing so nerve-wracking as sitting in that witness box.  Do I look at the judge or at the attorney?  Am I speaking up?  What if I don't knew the answer to a question?  What will the other side ask me.  Nerve-wracking.  I did fine, but it got me thinking on what it takes to be a good witness.  Here are 10 Tips.

1.  Speak loudly, slowly and clearly.  Those microphones do not necessarily amplify; they are there to record.  Some of us are a bit on the hard of hearing side, and if you speak quickly, you are probably not speaking clearly, and I will have to ask you to repeat yourself.  It's even worse if the Judge has to ask you to repeat yourself....continuously.

2.  Look at whomever makes you most comfortable.  I was a judge at this year's high school mock trial competition, and all of the coaches must have told their students to direct their testimony to the judge.  Having them all stare at me when they answered questions was a lot forced and made me a bit uncomfortable.  When I testify, I look at whomever is asking me the question and occasionally, at the judge.  It just feels more natural for me.  Do what feels natural to you.

3.  Control your facial expression.  Just because the witness box may be below where the judge is sitting or directly to their side, or just because the judge appears to be focused on the paper in front of them, do not assume they aren't watching you.  They can see you, and part of how they view your testimony is how you act.

4.  Listen to the question and answer only that question.  Take a deep breath.  Calm yourself.  Really listen to what is being asked of you, and answer it.  Don't answer the question you think they should be asking.  Don't answer more than the question, even if you think it helps.  If they need to, they'll ask a follow-up.  Remember, the answer to the question, "Do you know what day it is?" is "yes," not the name of the day.

5.  Don't argue with the questioner.  Just answer the question. The judge wants the information; and they don't want to have to play referee to get it.  Remember, even if it is the opposing party or their attorney asking you the question, they are doing their jobs in the courtroom.  It's not personal.

6.  Don't play word games with the questioner.  That semantics crap just annoys everyone.  If a word has a common meaning and it is used in the usual way, don't play games.  Just answer the question.

7.  Don't be afraid to ask to have the question rephrased or repeated.  Sometimes, questioners think they are really clear in their questioning, because after all, they know what they're asking.  Problem is, sometimes, that's not so clear to our listener.  It's OK, ask us to say it a different way or to repeat it.

8.  Don't guess.  If you don't know, say you don't know.  Don't do it with every question, or you violate rule #6.  It's OK not to know or remember everything.

9.  If the other side says "objection," STOP TALKING IMMEDIATELY.  Let the Judge and the attorneys discuss the issue.  If the objection is sustained, don't answer the question.  If it is overruled, go ahead and respond, but not until the Judge rules.  Maybe I would be rich if I had a dime for every time a witness tried to explain why what they were about to say wasn't really objectionable.  I'm an attorney, and I don't even chime in on those discussions; I just check out my cuticles, or the way that bug is crawling across the witness stand, or how great the clerk looks in the blouse she's wearing.  I digress, but you get the picture.  Be quiet.

10.  Don't worry if you said something you think may be harmful, or didn't say something you should have.  The side that called you as a witness has two chances to either get out all the information or fix a mistake.  They call you for your direct testimony, and then after the other side cross examines you, they get to ask you rebuttal questions.  If they don't ask you anything on rebuttal, it means that whatever you are worrying about your testimony wasn't bad enough for your side to need to fix, so you can relax.  Let the attorney worry about what is enough and what hurts the case.

11.  A bonus for you.  Please dress at least in the style known as business casual.  The court and the process deserves the respect of pants without holes, shoes with toes if you're a man, blouses and hemline that leave something to the imagination, and pants below the knees.  It's not the grocery store on a Saturday.

Here in the Trenches.

Monday, April 3, 2017

Lessons From a "Failed" Mediation



I just had to file suit in one of my cases here in the Trenches.  We had attended mediation and made some progress.  Then we stalled.  Some people did some things they shouldn't have done and it destroyed whatever tenuous trust existed between the two spouses.  My client no longer believed anything that came out of the other spouse's mouth, including any of the underlying information on which we had based our prior negotiations.  My client needed to see the numbers - under penalties of perjury.  That's all there is to it.  So, I filed and I asked the other attorney if they would accept service of the court papers.  There are two points I want to make based on what happened after that.

You see, the first thing that happened was that the other attorney, who I have known and trusted for many years, called and email me so we could talk. The second thing that happened was that I called her.  She wanted to know what was up and why.  I told her.  She then said two things:  first, tell me what documents you need to see and I'll get them for you; and second, please send me another settlement proposal so we can continue to narrow the space between our clients' positions and meet their needs.  She knew I didn't make the decision to file lightly and that simply because I filed didn't mean we were in all out war.

The first take away for the client from all of this is that you really, really want your attorney to not only know the other attorney, but also to respect and get along with them.  It is your best option for a settlement that works for both you and your spouse.  This attorney and I trust each other.  We both know that we both know the practice of family law.  We both know want to help our clients be OK and move forward with their lives (not all attorneys share this philosophy).  We can believe that the other will not take an action without a good reason.  We know the other will not ramp it up without a conversation, and we will never shut down those avenues.  All of this is vital to making sure the clients get what they need, and that they get what they need in a cost effective way.  If this attorney and I did not have the relationship we do, there would be no offers of document production or continuing conversations at this stage of the game.   No, we would simply retreat to our corners and start churning out discovery, which in case you all missed it, is a huge money maker for us.  We'd be preparing for a 4 day trial, another big money maker, without any effort at settlement except what the court requires.  If I don't trust what you say,  I won't trust what you'll do.

The second takeaway is that the choice of process can be very fluid in family law.  There are very few, if any, process choices that are irrevocable or which cannot encompass other process choices.  Sometimes, mediation fails to reach a full settlement, and the case settles with lawyer-to-lawyer negotiation.  Sometimes, mediation fails to reach a full settlement, the court process starts, and then parties return to mediation.  Sometimes, folks start in court and end up in collaboration.  Sometimes, they start in collaboration, move to court and end up in mediation.  I always say there is a process choice that is right for every person; it's an art (and sometimes trial and error) to figure out which one it is in a given case.  I don't think using any process, even if it is not the one that leads directly to a durable agreement, is wrong.  Even in this case, I see a value in our attending mediation.  Each process helps the client and the attorney move forward toward resolution; thankfully the other attorney in my case and I see our movement from mediation in the same way.  Here in the Trenches.


Monday, March 27, 2017

Whatever is Child Support For?


Like many of us here in the Trenches, I think I'll scream if one more parent who pays child support tells me that they're pissed because the other parent isn't even spending their child support on the children.  It usually goes something like this:  "I pay my child support, and it's a lot of money, and the other parent told our child he/she can't afford to buy them "X."  What are they using the money for?  I certainly don't see our child in new clothes, and you should see the state of their shoes.  My ex, on the other hand, just bought a new car; is that where my money is going?""  OK, let's put the myth that child support is for the direct, palpable expenses of the child to rest right now; it isn't.  Perhaps a history lesson is in order here, because that's usually where I go first.

Way back in the dark ages, before 1990 or so, there were no child support guidelines, and child support was up to the discretion of the judge.  No disrespect to judges intended here, but most of them had no clue how much it costs to raise a child.  Most of them set child support so low that the custodial parent couldn't afford the ordinary expenses of their household and ended up on federal entitlements like food stamps, welfare and medicaid.  It cost the federal government a lot of money, so they government decided to do something about it; they tied federal highway funding to the passage by each state of laws that standardized the amounts of child support through their state.  Lo and behold, each and every state wanted highway funding, so they passed some form of child support guidelines.  Those guidelines are a formula that represent the legislature's best guess of how much it costs on average around the state to raise children.  By "raise children" what we mean is the incremental cost of a larger home, more utilities usage, higher grocery bills, more transportation costs of having additional human beings in a home, along with the direct costs of clothing, haircuts, medical copays and the like.  Their purpose is so that the child enjoys a relatively comparable standard of living in both houses; it's really not OK that they live like royalty in one house and like a pauper in the other.  Yes, child support can be a huge financial burden, and it feels really unfair to be paying so much money and see no benefit.   After all, when you spend that much money, you want to be able to quantify what you're getting.  I can't help you with the amount of support; that was set by the legislature.  Let me help you with seeing a benefit for you financial sacrifice.  What you're getting is your child having a decent place to live, electricity and running water, clothes on their back, a reliable car in which to ride, and a co-parent who isn't quite so stressed out about finding the funds with which to do that.  Your child benefits from all of that because of you.  That's priceless.  Here in the Trenches.

Wednesday, March 22, 2017

Hope Springs Eternal


I thought I was trying a case today and tomorrow.  I thought there was no way to settle it.  This case had gone on for 4 years, almost without abatement.  The parents have been caught in a cycle of pain and disappointment.  One is trying their darndest to break the cycle; the other is too hurt to move beyond the pain.  Their child is suffering mightily.  My client thought there was no hope of moving forward and had no choice but to ask the court to make a choice between the two parents.  It wasn't what she wanted, but without cooperation from the other parent, it was what she had to do.  At the last minute, we were able to resolve the dispute.  Is the resolution perfect?  No.  Is it possible everything we put into place to help these parents move forward might fall apart?  Yes. Might they never get out of their cycle?  Possibly.  Sometimes, there is no happily ever after.  Sometimes, you do the best you can and hope for the best.  If they can adhere to the consent order we entered today, there is hope for this family and for their child.  I'm keeping my fingers crossed.

What I hope for them is that they retain the optimism they had today.  We were fortunate that the judge insisted that even though we had a signed agreement, the parents nonetheless come before him so he could ensure that they understood their undertaking and its importance.  The judge did a masterful job.  He asked each parent questions about their son that made them smile.  He talked to each of them about the struggles their son was enduring; he opined that parental conflict probably made those problems worse. He asked them about the terms of the agreement and made sure they understood their undertaking.  He warned them about what would likely happen if they failed to obey the order they were entering.  He made them smile and he made them tear up.  I hope he caused them to soberly reflect.  They left the courtroom a little lighter and with some hope.  I wish for them that the actions they take justify that hope.  Here in the Trenches.

Tuesday, March 14, 2017

Trial Tuesday - Watch Your Ps and Qs in Court



There was a time in my life (and I know this is going to make me sound old) when, if you told someone to dress like they were going to church, or like they were going to travel, or they were going to work, you knew they would be dressed appropriately for court.  You knew that the men would be wearing dress slacks and either a button down shirt or a polo, and the women would be wearing nice slacks or a skirt with a blouse.  If you were lucky, the men would come in a tie and the women would wear a dress.  Back in the old days, we knew that the way you dressed when you showed up demonstrated the respect you had for the institution.  Those days are gone.  Mother lives near our local Catholic Church, and I am often running by there as folks are arriving for mass.  The way they dress appalls me:  cutoffs and bikini tops (it is Florida), jean shorts, "distressed" jeans, running clothes., and the like.  When I travel, I see folks dressed in their pajamas.  So now, instead of just telling clients to dress like they're going to church or work, I have to spell it out.  Oh, I know, everyone dresses down these days.  Not in court when you're my client.  Shorts and sandals?  Heavens no, especially not for men.  Momma told me you only get one chance to make a first impression.  If you don't think the judges notice what you wear and decide whether it's appropriate, please think again.  If you don't think that what you look like in the courtroom influences how the judge sees your case, please think again.

While we're on that subject, don't ever think the judge doesn't notice what's going on in their courtroom.  Sure, they may look like they are intent on the witness in the witness box.  That doesn't mean they don't notice you rolling your eyes, or mouthing "liar", or taking and receiving texts (yes, all those things have happened).  Judges are like your momma - they have eyes in the back of their heads, they can see through closed eyelids, they hear that mutter under your breath that you thought no one heard.  One of the reasons that it is so darned difficult to overturn a judge's decision on appeal is that the appellate court defers to the individual who had, not only the opportunity to hear the evidence, but also the ability to observe the witnesses and assess the demeanor of the litigants in their courtroom and on the stand.  Don't believe me?  Read about 100 published appellate opinions and I guarantee you will, because that's what they say.  There are so many ways to win or lose a case.  Why would you let how you look and how you behave, instead of the facts, determine the outcome of your case?  Just my $.02.  Here in the Trenches.