Sunday, August 20, 2017
The events of the last couple of weeks in both my personal and professional lives have brought to mind the subject of settling a case short of a judicial decision. As you may or may not know, I settle most of my cases. Some of my colleagues do not - they try most of their cases. I know you're asking "Why is that?" You're probably also asking what I know that could help you settle your case. Well, the answers to both questions are elated. Let me explain. Before I do, a word of warning: if you think I offer a magic wand or a quick fix, this blog will be unsatisfying.
Many times, a settlement is not what a client would get in court. A client might get more alimony or more property if they went to court than if they settled. Some lawyers see that and only that, and counsel a client that because going to court could get them something different from a settlement, they should go to court unless the other side gives them what they believe a judge would probably award. The problem is that these lawyers assume that judicial decisions are predictable and uniform. They're not. If they were, everyone would know what the outcome of a case would be if they went to court and they would settle their case. At least they would have a definite range of possible decisions. Those same lawyers mistake positions for needs, and then are confused when clients get what they want and are unhappy. As the courts are still in business and judges are still hearing family cases, even with the best of attorneys, these assumptions are obviously incorrect. So, there is an element of unpredictability in taking a case to trial, and a client might get what the attorney thinks they will and they might not. Settling takes away that unpredictability. Still, there are times when you have to go to trial.
How do you know if you have to go to trial? I have a few pretty good indicators.
1. There is an issue about which there can really be no compromise. For example, one parent is staying in the home state and the other is moving across the world to a location that is at least as desirable as the home state; and both parents want the child to live primarily with them.
2. You make offers of settlement and the other side doesn't respond, or makes counterproposals. that are the polar opposite of the original offer and they persist in insisting theirs is the only solution, and this pattern continues.
3. Mediation is completely unsuccessful, and by this I mean that there are no points of commonality.
4. The other side has an addiction, mental health or processing issue that makes it difficult to impossible for them to realistically assess the value of an offer, make a counteroffer, or compromise in any way.
How do you figure out whether your case is one of those that has to be tried? First, you need to do some homework of your own. All my clients do.
1. First, ask yourself three questions:
A. What MUST you have in order to settle your case? I'm not talking about things, here. I'm talking about concepts. Do you need a secure retirement, or is cash on hand more important? Do you need a flow of income, or could growth on investment get you what you want? Is it important to keep the kids in their home or school, and what does that mean?
B. What would be nice to have in order to settle the case, but which you could live without if necessary?
C. What don't you care about being included in a settlement of the case?
2. Second, answer the same questions about your spouse.
3. Think about all the ways you could get what it is you must have. There is never just one way to get what you need. Examine the pros and cons of each way.
4. Formulate a settlement proposal and make it. There's no shame in being the first to make an offer. Listen to the response, and not just what is said, but the underlying format and the expressed needs of the other incorporated in that response. See if there's a way you can adjust your offer to meet both of your needs. Remember, you are only going to be able to reach a settlement if it is mutually acceptable. It might be that even if you adjust your offer, the other side may reject it, may back away from what they say they need. This is a sign to you that your case may not be able to be settled, which you will have to explore further.
5. Think about the costs of settlement versus the cost of going to trial. These costs may factor into your needs:
A. Money: Each day of trial costs not only 6 hours of trial time, but three days of preparation. That's on top of all the preparation and work that leads up to the ultimate preparation for trial.
B. Time: There's a reason our Administrative Office of Courts puts a one-two year deadline on completing the trial of a case - it takes every bit of a year (or two) to get a case to trial and completed. That's a lot of time to have no resolution to your case and no ability to move forward with your life.
C. Emotion: Emotions run high in a divorce. As long as the divorce remains in process, the heightened emotions do no ebb and there is not relief.
D. Having to go to trial: Trying a case is not a pleasant experience. You will be subjected to direct and cross examination. You will have to sit through days of trial. It is exhausting. It is unpleasant. Some people are terrible testifiers. For some people, being subjected to the trial process will re-traumatize them, and set back all of their recovery from their divorce.
This isn't my life, it's yours. I advocate for you. My advocacy looks a whole lot different depending on whether I am advocating for a position or a need. If you don't do the heavy lifting and figure out your needs, with the help of your lawyer, not only will you probably not settle your case, you will also be unhappy with any outcome. Life isn't about things or money, although when you are in the middle of a divorce or custody matter it may seem so. Life is about underlying wants and needs; and in order to settle a case you need to know what they are. Here in the Trenches.
Sunday, August 13, 2017
Something else happened when I was sick that is really relevant here in the Trenches. I had a primary care physician. Let me tell you about my experience with this doctor. My insurance carrier told me I had to have a new primary care physician. I call this doctor's office and found they were taking new patients; and I asked to be able to designate them as my primary care physician. They agreed, and then informed me that I had to have a physical with this doctor as a condition of being her patient, the first appointment they had for that was 5 months in the future, and that if I needed a referral before then, I was out of luck. This doctor had come highly recommended and I'm rarely sick, so I agreed. I showed up on the day of my appointment and they forgot me in the waiting room. Then the doctor spent a lot of time telling me about their divorce and not really asking me anything about me - I was not wonderfully comfortable.
Fast forward 1.5 years later, and I'm really sick. I really didn't care for this doctor, so I didn't want to make an appointment, even though I needed one. Then I called their office. It was business hours, but they didn't answer. People are busy, so I left a message; they never called me back. Then I went online to their online appointment scheduler; there were no appointments for 3 months, even for a sick visit. So, I went to urgent care. They treated me. 1.5 weeks later, I was still really sick, and again there were no appointments with my primary care, so I went back to urgent care, and saw a different person. They prescribed a different treatment. 4 days later, I'm still just as sick. I thought, what should I do?
At that point, I thought about my own practice. If I had been a client instead of a patient, what would I have told myself? I would have said that lawyers and their clients are like dogs and their owners. In a successful relationship, we resemble each other in our outlook in life and approach to resolving disputes. I would have also said that your divorce lawyer will know more about you than you ever wanted anyone to know, and so you had better be comfortable with them and their staff, or you will be reluctant to share necessary information with them or to call them at all. At that point, it hit me like a ton of bricks that I had not taken my own advice when it came to choosing a doctor. I am certain this doctor is a good doctor - good recommendations count for a lot, and the existing patients love this person. This doctor is not the right doctor for me, just as I am not the right lawyer for everyone.
About a decade ago, I had a primary care doctor I loved. 8 years ago, she decided to become a concierge doctor. Although the annual fee for her service was not that expensive, I had no health issues at all. I didn't feel like I could justify the cost. As I went through primary care physician after primary care physician, and finally having no physician except my gynecologist, I kept thinking of this doctor and how I trusted her. Finally, as I was so sick and not getting better, having no continuity of care, and having no one who I could call who I trusted, I looked up her number and gave her office a call. The woman who answered the phone was like Chrystal at my office; I felt like she really cared. I paid the darn fee, and she got me an appointment for later that same day. I showed up, and my doctor was exactly as I remembered her. She was thorough. She answered all my questions (including all the really stupid ones that were ridiculous but were keeping me up at night); she and I had a rapport. She ordered the tests I needed. I felt better immediately, not because of the medication or the tests she prescribed, but because I knew I was in good hands. I felt safe and secure that my issues would be handled and all my questions would be answered. I think she's an excellent doctor, but she is probably no better or worse a doctor than the other one. The difference is the relationship, and that relationship makes her a better doctor for me. The relationship, more than technical prowess, makes one lawyer better than another....for you. Here in the Trenches.
Sunday, August 6, 2017
The last day I posted was the day my beautiful granddaughter was born - three weeks early. Not only that, I was in the midst of a horrible something that had settled in my chest, that made breathing, let alone functioning at an acceptable level, take all of my effort. As I struggled through not knowing if I was contagious still, and being unable to see the little angel until I was sure I wasn't, and then learning all the new ways medical science say we should treat newborns, and finding time to spend with grandma's angel, I thought about everyone in the Trenches.
First, I thought about how it's now a "thing" that people don't disconnect from work when they vacation. I read one article on the internet and one in the Washington Post today that said that people bring their work cell phones and check emails on vacation. We all feel that tug to stay connected 24/7, because we can. As a result, we enjoy fully none of the things we should. I do it. My clients do it too. I resolved to spend an afternoon a week with my angel and her parents, and turn off my cell phone (except for taking pictures, of course). I want to enjoy this experience of my first grandchild and of my son being a parent, and I can't if I don't put my worries about my clients to the side for those few hours I'm with them.
I want my clients to do the same with your worries. I know it's your life we're talking about. I know that there is easily enough to do to keep you fully occupied with your case for all the hours you are not at work. I know you feel like if you don't work on or worry about your case, you feel guilty. I'm giving you permission to unplug, not for every day, but at least once a week. Take a few hours to recharge, to not read about divorce, to not work on your documents, to not talk about your divorce. It will be like you had a mini-vacation. Remember how you feel when you come back from vacation (no, not the part where you wish you could be on vacation every day for the rest of your life)? You feel renewed and ready to tackle what life throws at you. I know I feel that way after my half day with my son and his family. You need it too.
Second, I thought about all of the frustration I felt in being unable to do what I wanted to do while I was sick. I couldn't visit my brand new granddaughter. I couldn't help care for her. I couldn't help my son and his wife with some of the daily chores they were too tired to do. I couldn't run or lift weights or go to yoga. I hated it. I hated not feeling like myself and being able to do what I wanted to do. Isn't that how my clients feel too? Many clients feel depressed, angry and overwhelmed. Many lack the resources to do the things they like to do.
What did I do? Well, I asked mom and dad to send my pictures of the little angel. Bless their hearts, they were religious about it, and I had quite a collection by the time I could visit. They let me know how she was doing. I also embraced my physical recovery period as a message from my body to just stop; I realized that recovery is as important a part of fitness as the workouts themselves and by reframing, I could recover without guilt. You can do the same. Depression and anger are natural parts of the process of grieving loss; and in the Trenches, it's the loss of what was. The only way to get through those parts and get to acceptance is to embrace them as a natural part of the process. Part of that acceptance is accepting that life will change (by the way, life always changes), and adapting to the limitations and realities of your new life. Can you reframe what is happening? Can you find a workaround? Figure out what is most important and why, and I bet you'll come up with a solution.
Third, just as medical "science" changed its tune about what is best for babies in the 5.5 years between my son and daughter, so has it changed numerous times since then. All the rules for babies are different than when I was the mom of a newborn. Our minds become less flexible as we get older, and it's hard to rewire your parent brain to the new rules. What I could "get" easily as a young mother takes more time as a grandmother. It's hard, and frankly, some of the new rules make no sense to me. Still, I am working mightily to deal with the new reality and make it part of me.
Isn't that also what my clients do? The rules of divorce are something you have hopefully never dealt with, and if you have, certain aspects of the law have undoubtedly changed since then. The rules of dating are different. Life as a single is different than life as a couple. You have to adapt to move forward. Otherwise, you're the man in the blue leisure suit or the lady with the bouffant hairdo - out of touch and living in the past. Embrace the change and adapt to it. It will help your recovery, and as a bonus, will help maintain your mind's plasticity. Here in the Trenches.
Wednesday, July 12, 2017
The single most important document you will get from your divorce or custody matter is your settlement agreement, consent order, or court order. It is the document that will guide all of your interactions with your co-parent or former spouse. If that is so, why do so few people read it, either before or after they sign it? I mean it. I can't tell you how many phone calls I receive from clients asking questions, the answers to which are front and center in their settlement agreement. That's followed close behind by people who can't find that document at all and wonder if I have it. Honestly, you probably paid a lot of money to obtain the terms that are contained in your settlement agreement, consent or court order. Why would you not keep it safe? Why would you not read it carefully, tab it, index it, and know every term by heart? Does that make sense to you? Me neither. Here in the Trenches.
Tuesday, June 27, 2017
Back in 1998, after having completed my Guardian ad Litem (Best Interest Attorney) training, the Circuit Court for Montgomery County, Maryland, assigned me to my first case. I was to represent an 11 year old boy and his 16 year old sister. The details of that representation could probably fill a short book, but that's not the point here. I ended up representing that 11 year old boy for 6 years, and added a group of people to the folks I call family.
You see, at the beginning of the representation, for reasons unrelated to fitness, I had to recommend that the children live with dad. You would think that mom would despise me, but no. Every semester, I would receive in the mail a 2 x 3 envelope into which mom had folded (into a million pieces) both children's report cards, on which she would write a sticky note letting me know how everyone was doing. If something good happened in the meantime, I'd get another envelope from her. I loved getting them.
I would also hear from my little boy, who was not so little, every 2 or 3 months. He'd call me on the phone and update me on how well or not so well things were going at his dad's house, and in life. We'd have a phone pow wow and catch up and decide what he should do next. When my boy turned 17, we decided it was time to move back to mom, and this time I represented him as his attorney. I was so proud of how he advocated for himself and how we worked out all the details necessary for him to accomplish the move. After he moved back with mom, Daughter and I would stop by and see him at his job, and he would let her "help" him. I think he kind of liked having a little sister. Then he graduated from high school, and he gave me one of his very rare tickets to graduation. He also sent me a letter that I have framed on the wall of my office.
Then, his sister got married. I was invited as a friend of the family. I loved seeing her all grown up and happy. She has since had three lovely children, and I was invited to all of the baby showers. She's my friend on Facebook, and I get to enjoy all of her family's milestones.
Next, my boy got married. It was one of the happiest days of my life. You see, he asked me to be his Best Man. Last week, he and his wife had a beautiful baby boy. It made me cry with joy. His mom sent me a message of how well "our" kids turned out. She's right - they really did. Who knew, when I accepted that court appointment, that I would adopt a family and that they would adopt me. I know I made a difference in the lives of this family (and they made in mine), and that is my proudest achievement, here in the Trenches.
Sunday, June 18, 2017
Let's talk law offices and the practice of law. You all probably don't know that as part of what I do, I am co-chair of the fee dispute committee for our local bar. Yes, there is a committee that investigates and helps resolve disputes about the amount of a lawyer's fees. Before you get all excited and think you can come to us and say that someone's hourly rate was too high, or that they shouldn't have charged you a fee because you lost your case (yes, it happens), the fee dispute committee is there to look at a fee and see whether it was, in fact, too high (for some reason, no one ever complains that their lawyer charged them too little - go figure), and help the client and the lawyer settle on the disputed fee. Anyway, we joke at our Bar that I am chair of this committee for life, because I've been doing this 8 or 9 years, and no one else wants to do it. As a result, I have seen a lot of lawyers' bills, from the really expensive big firms, to the solo practitioner. Let me give you some tips as you wade into the Trenches, so I don't see your complaint cross my desk.
1. Read your retainer agreement BEFORE you sign it. I know, this sounds simple. In fact, a few of you just face planted on the table at the thought that someone wouldn't do this. It is my experience that almost no one really reads their retainer agreement. I have been in private practice for almost 30 years, and I can count on one hand (with fingers left over) the number of people who took their retainer agreement with them to read at their leisure, and who then contacted me with questions about the language in the agreement before they signed it. If it says I can charge you interest on an overdue balance, don't you want to know when I might do that and when I won't? I know I try to keep my retainer agreements in plain English, but there are still pieces of them that are not easy to understand if you're not a lawyer. Don't feel stupid if you ask a question; and conversely, if the lawyer tries to make you feel stupid for asking it, do you want them to be your lawyer?
2. OPEN your monthly statements and READ them. Again, sounds simple, yet it's not. I had one client to whom I mailed a cashier's check for a lot of overdue child support. After a period of time, the other attorney contacted me to make sure my client received the check, because it hadn't been cashed. I called my client, who proceeded to sift through the 20 or so unopened envelopes from me sitting on the desk. Yes, I said unopened. So first, open your mail. Second, read it. If you don't understand a billing entry, if you don't recall why there would be that billing entry, if the amount of time seems excessive (although I did have someone complain once that I didn't spend enough time perusing a document), then call the lawyer's office within 30 days of receipt. They should answer your questions and not charge you for the privilege of doing so (unless, of course, you combine a discussion of your case into that call or email). I'm charging you a lot of money - don't you care to know on what you're spending? If you wait until the end of your case and then open the bills and dispute on from 9 months ago, chances are, no one is going to be sympathetic.
3. Ask who is going to be working on your case. Is it just the person sitting behind the desk with you now, or will other people be doing work for you? Ask what work they will be doing. Ask why. Ask what happens if there are two people sitting in on your meeting, mediation or court appearance? Will you get charged for both? Is there a blended rate? Why are two people necessary? There are often really good reasons for two people to work at the same time on the same matter and same part of the matter. Sometimes there aren't. My office rarely, if ever, charges for two people at the same meeting. Some offices, however, divide duties and as a part of those divided duties, each lawyer/paralegal is doing something different and necessary even in the same meeting - that might be a reason to charge for two people. I have been a client, however, and my attorney (who I soon fired) had another attorney sit in on every meeting, even though that attorney added no value whatsoever to the meeting and was simply there to know what was going on. When I complained after the first bill that showed that charge, I was told that was simply how they did it and I would be charged for two lawyers whether I wanted them or not. OK, then I knew, and I had a choice whether to stay with that firm or move somewhere else. Do not fail to read your bill and then complain at the end of the representation that you were double-billed; that's your fault and your problem.
4. By the same token, ask if the lawyer does all the work on your case, or if their paralegal/assistant does a first draft that the lawyer then edits and expands upon. Who goes through and organizes the volumes of documents you provide - the lawyer or an assistant? Some firms don't have paralegals. Some firms don't have anyone but lawyers start to draft or review anything. Others have their paralegals/assistants take a first crack at it. None of these ways of getting out the work is wrong, it's just different, with different costs. You're paying for it and you should know. If you don't know, and don't read your bill and then don't complain until after 9 months of those charges, I don't feel that sorry for you.
5. You will be charged for the lawyer to do research. We don't know everything like the back of our hands, and we want to make sure that we are accurately applying the most recent law to your case. As a client, I want my lawyer to do that. Here's what I don't want them to do: teach themselves the basics on my dime. You should not be charged for research for things as elementary as how to file an answer, how many interrogatories they are allowed to ask, how many days until a pleading is due. Yes, I've seen it.
6. For what are you going to be charged, when and why? Filing the papers in your file at the office? Opening and organizing your file? Phone calls to set appointments and court dates? Making copies (both by the page and by the hour)? Travel? Postage? Hand delivery? Again, I've seen courts award lawyers their fees for all of these things, so they're permissible charges, but don't you want to know before you open your bill? Don't you want to know how the lawyer defines all these terms, so that you can make sure you're on the same page? Many of these things will not be in your retainer agreement, or if they are, are not defined or set forth in detail.
7. Ask what you can do to work on your case to save money. It costs a lot of money to sort through all of your papers and put them in order and figure out what you didn't provide. It takes a lot of time to go through the documents your spouse provided and do the same. If you can do that, and give a detailed breakdown of what's there and what's not, it'll save you quite a bit of money. If you're good with a spreadsheet and are good at tracing the money, I won't tell you you can't, and again, if you do it well, it will save you money. Of course, if you bring me documents thrown into a shopping bag, or send me documents in no particular order, or forget to tell me everything I need to know to assess what I have, it will cost you a lot, and I can and will charge you for that.
8. Lawyers do not guarantee outcomes. There are a lot of reasons why you may not "win" your case. I can pretty much guarantee you won't get everything you want. Most of the reasons have absolutely nothing to do with whether the attorney did the work necessary for the job. If your lawyer phoned it in, that's a problem, but most don't and they are prepared for whatever your case brings to the best of their ability. Sometimes your case isn't that good, or the judge isn't sympathetic, or your attorney didn't have the skills or experience another lawyer would have. That last one's on you. I know, lawyers are expensive. I know, you want to save money. Let me clue you in to a secret that really isn't a secret. Although there are exceptions, the bargain basement lawyer is cheap because they are either not that good at what they do or because they haven't been doing it very long. Give me a $100 an hour lawyer, and I will run rings around them every time because I've been doing this almost 30 years so I have more experience and knowledge, because I've worked on hundreds of cases, and I attend hours every year of continuing education. I do the same work in less time and know what is important in a case and how to present it. I also have a reputation for knowing what I'm doing and for being candid with other lawyers and the court, and those take time and effort to build. That's why I'm paid more. Don't hire the cheapest lawyer and then refuse to pay the bill because they didn't handle your case like the most expensive lawyer.
9. If you are running out of money for your case, talk to your lawyer. Don't let the bill continue to increase while you hide your head in the sand. We know the process is expensive. We know your finances better than do you. We would rather not be stuck with a huge receivable or have to withdraw from your case because we're not being paid. Have a conversation with your lawyer and see what other payment arrangements can be made. Don't be embarrassed - we'd so much rather have that conversation with you now than sue you later or leave you in a lurch. Maybe they'll work out the bill with you and maybe they won't. but isn't it better to know?
10. Be an educated consumer. Read what's sent or given to you. Ask questions. Learn your options. take an active part in your case. It is your life and your money, after all. Here in the Trenches.
Wednesday, June 14, 2017
As you all know by now, every year, Daughter and I run the Disney Princess Half Marathon Weekend at Disney World in Florida. In late February. The weather in late February in Central Florida is much like the weather in the rest of the country - unpredictable. You would think as a Florida native, I would remember that, but I don't always. Such was the case a few years ago, when Disney named their Princess weekend for Frozen. It certainly was - frozen. The temperature for the 10K was below freezing. Did I bring appropriate clothing? Heavens no. I brought shorts and floppy sparkle skirts. What to do? Well, we could run in our planned costumes and looked adorable and frozen. We could have not run. Lucky for us, two things happened. First, we stopped at the outlets for our usual shop on the way to the race. What is usually on sale at Florida outlets? Cold weather gear, of course, and I used the opportunity to stock up on some things I needed to run in the fall and winter. I had them with me, in all their technicolor glory. Second, the rest of our family ran the morning before in the 5K, when it was even colder, and Disney thoughtfully supplied them with warming mylar blankets, which they saved for us. Daughter and I looked a little goofy (no pun intended), our costumes were totally messed up, but we made do with what we had and were able to run without freezing off body parts because running the race and doing it together was what was important. That's life.
That's also life in the Trenches. Many times here in the Trenches, one party wants something the other isn't willing to give. It might be money for support. It might be time with the children. Whatever it is, that party isn't going to get what they want at that moment. They may, however, get something less.....for now. For now doesn't mean forever. It really means for now. So what happens when the party says what they want and the other says they won't give that but they will give something else? Usually, the first reaction is to say "no." "No" is really the wrong answer. I really don't care if the other party is being totally and completely unreasonable. Saying "no" is like throwing the baby out with the bath water. I want the children half the time; you want me to have the children every other weekend. If I say "no," not only don't I see the children half the time, I don't see them at all. I want $1,000 in support; you want to pay $500. If I say "no," I not only don't get $1,000, I don't get anything. Making do with something temporarily, even if it's not everything you want, is probably better than nothing.
Wait a minute, you say. Are you telling me to give in to that dictator? Are you telling me not to fight for what I want? Are you saying I should just cave in? Of course not. However, if you have no court date for 3 months, or you just separated, or the attorneys haven't had an opportunity to help you determine and resolve the issues, then making do with what you have while making sure the other party knows that it is under protest and only because something is better than nothing, may be what you have to do to stay in the running and continue to move forward. You're doing it for now, and only for now, and maybe that "now" has a defined time limit. Honestly, do you want to tell a judge that because you couldn't get your way, you just decided not to see the kids? Or would you rather show a judge how unreasonable the other parent was and that you took what time you could because being with your children was important to you? Would you rather have the other parent say you are incapable of caring for the children without the ability to disprove their statement, or would you rather you take less time and make them eat their words? Again, defining your goals early on and deciding what is most important to you, will help you determine whether saying "no," even just for now, is the right choice, or if settling for something less than ideal in the short term will further your goals. The knee jerk reaction is not usually the better course, and even those of us who toil here have to remind ourselves of that. Here in the Trenches.