I know, the office is closed until the end of the year. Do you really think I leave it all behind? Not a chance. The phones are still being answered, and the emails checked. I can't help it, it's what we do here in the Trenches. Anyway, I was having coffee with my law school friend, and we talked about families, and of course, the Trenches. We came around to my theory of crazy and sane. I don't know if I've expounded on my theory here before, but even if I have, it bears repeating. In a custody battle between a relatively normal parent (isn't it always relative?) and a parent with a high conflict personality, the high conflict personality almost always wins, at least in the short run. Why is that? It's actually pretty logical, if you stop and think about it. A normal parent will always love their child, not matter what, even if they don't particularly like their behavior. They're safe. They're the parent with expectations of the children, beyond what the children can do for them. They're always there when the going gets rough. The high conflict parent? Not safe. Loving the other parent is not OK to this parent. They have to be the only parent loved by the child. Children know that instinctively. The high conflict parent forces the child to choose between parents, and they almost always choose the high conflict parent. For them to do otherwise means they lose the love of one of their parents. What child would freely choose to lose the love of a parent? Almost none, so they choose the high conflict parent, knowing the normal parent will forgive them and continue to love them. Crappy choice, but in the theory of crazy and sane, it's probably the only reasonable one.
I had a good friend back in law school. I really liked her and we were pretty close. Then, I moved to Maryland. We still kept in touch - Christmas cards, mostly. Until the year the Christmas card came back. I thought it might be just a glitch with the postal service, so I sent a card the next year. It came back too. I couldn't believe my friend had moved and didn't let me know. I still don't know what happened with the Christmas card. What came afterward was almost 19 years without contact. Then came Facebook. Here in the Trenches, we like Facebook because of the incriminating information we find. We like it because our clients and their spouses find their long lost loves on Facebook and leave their spouses. This year, we like it for different reasons. We like it because we can find our law school friend and have coffee with her for the first time in 19 years (and four children between us). We like it because we can keep in touch with Office Testosterone when he's too sick to actually have an in-person conversation. We like it because we know what our children are doing and thinking, when they don't actually tell us. Social media is powerful. It has the ability to tear people apart, but also to bring them back together. It's all in how you use it and why.
Today is the last day of the year here in the Trenches. I find that I am in a reflective mood. It's been a trying year, not least of which because of the economy. For most of the year, we have been suffering along with Curtis, our Office Testosterone, as he fights for his life against Lymphoma. Then, at the end of November, our little Erin left us after seven years. As Chrystal has been here almost since the beginning (twelve of our 13 years), it's fairly obvious that we're not big on change here. Sure, we update our technology, find new ways of improving our service to our clients, but when it comes to the guts of the Trenches, our people, we don't like change. So, change is a big thing, and not one we enjoy.
Our people are what make the Trenches different from other family law firms. We have been truly blessed (and I think our clients would agree) to have some of the best support staff any firm can have. Everyone who works here really cares what happens to our cllients; to us, it's not just a job, it's who we are. So, who are we?
First, there's Chrystal. I don't know what we would do if she decided to fire us. She's the first contact clients have with the office. She's always compassionate and caring. She listens attentively long past when most of our minds have started to wander. Her people instincts are right on, and I have ignored them to my detriment only a few times (even I can be taught). She has common sense in abundance. I think a lot of our clients love us for her (in fact, I think they love her more than me, as they should). That's all on top of being a top notch paralegal. Plus, she puts up with me, through dictating emails on the road, triaging emergencies on potty breaks in trial, sitting with the phone line open when the office is just too darn quiet or when I just need a sounding board. She's also the best friend I have in the world, bar none. We've been together through a lot, and she assures me the Trenches will be her client until she wins the lottery (and thankfully, she never buys a ticket).
Then, there's Erin, our Little Miss Sunshine. She started working in the Trenches when she was just 17. We've watched her grow and mature into the truly fine young woman she has become. Through high school and college, there was always a home for her in the Trenches whenever she had time to work. I remember her "deer in the headlights' look the first time someone asked her a question on the phone, when all she really felt comfortable doing was saying "Hello" and "Can you please hold?" When she left, she was doing a lot of the things paralegals do, plus clients grew to love talking to her on the phone (and a lot of time, she liked it too). Erin always has a smile in her voice, and on her face. She has a big heart, and opened it to embrace all of us in the Trenches as well as our clients. I still can't believe she's grown up and left us.
Last, but certainly not least, there's Curtis. He's the youngest member of the Trenches and our newest addition. He's also the first individual with high testosterone to work here. (You've read about his troubles and also his praises multiple times here.) He is our Zen master. Life is crazy for our clients here in the Trenches, and sometimes, the agitation is contagious. Curtis never gets agitated. He's always calm, cool and collected, and that's contagious too. You can feel your heartbeat slow when he's around. Life's a little less frantic, and his upbeat attitude also rubs off. He's a special guy (as well as a top notch "safe place" finder!). As you know, he is gravely ill and needs our positive thoughts.
As we end the year, the population of Trenches is reduced by half. We miss our Sunshine and Testosterone, as do our clients. We know, however, that they are never far away - geographically and in our hearts. Happy holidays
After another really tough holiday season here in the Trenches, I'd like to talk about our unsung heroes. No, it's not the support staff (especially because I sing their praises every chance I get). It's our significant others. As those of you who work in the Trenches know, it is difficult and draining to deal with our clients' crises on a daily basis, and even worse during the holiday season. We end up completely exhausted at the end of the day when we go home to our significant others. As you might imagine, we're not the best company when we get home, and I mean when we get home, which is usually pretty late. At a time of year when most folks spend time celebrating with family and friends, those of us in the Trenches are exhausted and decidedly antisocial. We work, eat, sleep, and go back to work. What happens when we go home for those hours to eat and sleep? The dogs are thrilled to see us, even more so if we take them for that four letter word that starts with "w", and ends with "alk". What about the people at home? Funny thing is, most of us come home to people who understand. They know this is what we do, and that it's tough on us. Are they thrilled with having a warm, semi-conscious person at the other end of the couch for three weeks? Of course not, but they don't complain, they don't add to the pressure. What they do is help us reduce our stress, and carve small moments of joy out of our days, so we can continue to be at our best for our clients at a really difficult time. They are our unsung heroes, and we love them.
You may remember my post a few weeks bank (OK, a rant really), about how the rules apply, except when they don't. On Friday, I had the opportunity to argue that an order should be vacated because the other side did not play by the rules. I knew that if I won, the other side would simply walk downstairs and file a different motion, but the right way. Still, what they did was wrong, it hurt my client, and placed her in an untenable procedural posture. The other side took the position that the ends justified the means. As you might remember in the post linked above, the judge who heard that type of argument a few weeks ago, bought it. Not Friday's judge. He heard the argument, understood what granting my motion would mean in the long run, and decided the rules meant something. It restored my faith in the law, but drove home what we tell our clients here in the Trenches: it's not the law but the judge who decides your case, and do you really want to leave it to them?
“We are never so much disposed to quarrel with others as when we are dissatisfied with ourselves.”
-- William Hazlitt
Isn't that the truth? Or perhaps you would prefer "If misery loves company, misery has company enough." -Henry David Thoreau? Have you ever noticed that unhappy people want everyone else to be unhappy as well? It's almost as if they can't truly "enjoy" being miserable unless others are as well. I don't know about you, but I like wallowing in self pity all by myself. I want someone to come along and convince me the party is boring and I should end it rather than joining it with me. When I'm in a bad mood, I'd rather you talk me out of it. When you yell at me, I try to figure out why - what did I do to provoke it, what might be going on in your life, why you handle disputes the way you do. Do I yell back? Sometimes, but I usually regret it. The times I do take the bait are times at which I'm not at my best, when I'm tired or overwhelmed. Here in the Trenches, what I do does not affect how I live my life. It does, however, affect my clients' lives. Here are people enduring the biggest loss, next to death, that they will ever encounter. Every aspect of their lives is changing, and they don't know how. They're off balance and confused. Every nerve in their bodies is raw. Many of them blame themselves for the breakup of their marriage. Maybe they didn't want the marriage to end. I would call most of our clients dissatisfied with themselves and their lives. Add to that their being high conflict people, and you come up with some epic quarrels. Understanding this means we view the most quarrelsome client with compassion and understanding. We help them feel safe, heard and respected so they can reduce the desire to quarrel. It's all part of what we do, here in the Trenches.
I know I sounded uncharacteristically pessimistic yesterday. As those of you who read this blog regularly know, many, if not most, of my clients or their spouses are what Bill Eddy likes to call high conflict people. To put it simply, these folks are tough, and it takes a lot of energy to deal with them on a regular basis. What makes them so tough? For starters, nothing is ever their fault - and I mean nothing. If nothing is ever their fault, then it must be someone else's. In the Trenches, that someone is usually their soon to be former spouse, but it can just as easily become their lawyer. They do "bad" things and justify their behavior because of some action by the target of blame. The problem is that bad events have longer lasting consequences than good, and bad behavior is more destructive than good behavior is constructive. If you think about it cognitively, it makes sense. It only takes one event to gain a bad reputation, but once you have a bad reputation, it takes multiple positive events simply to neutralize it, let alone turn it back into a good reputation (which may never happen). Many people don't exercise or eat right to feel good; they do it so they don't feel bad. What does all this have to do with the Trenches? Contrary to popular belief, lawyers don't just provide legal advice. Our jobs, done correctly, mean that we help our clients clarify their needs and goals, explore and weigh options, and negotiate effectively with their spouse. We know that once someone engages in bad behavior, given that our clients are already in a negative situation, our jobs become that much more difficult. That means that contemporaneously with helping our clients on a substantive level, we need to work to prevent bad behavior from occurring, both in them and their spouse (and probably the spouse's lawyer as well). We have to identify the high conflict people, recognize and manage our reactions to them, and help them feel safe so they can resolve their differences and move on in life. It's a tough job, and it can be exhausting and draining. We keep doing it because we care. We don't always like it.
Well, Christmas cookies are done and delivered (Whew!). Time to focus on the Christmas....emergencies. Every three or so years, they come streaming out of the woodwork. The last time that happened, we had a husband threatening to drive through a picture window and plotting to kill his wife, and a little chest butting at a Christmas concert. It was so crazy, I nearly threw out the holiday gifts I was wrapping. This year is slightly less crazy (thank goodness for my gift recipients!), but between now and Christmas, I have two emergency hearings, one truly ridiculous custody trial, and another potential emergency. Makes my shoulder hurt just thinking about it. All except one of this year's emergencies are nothing but power plays about parental control. In each case, there are clear court orders setting forth what the holiday access is supposed to be, and those court orders were by agreement between the parents, and not forced on them by a judge. It's cases like these that make me despair for humankind, because the only conclusion I can draw from them is that the other parent made an agreement never intending to honor it. Who suffers for that? The children. It's always the children, but parents like these don't care. It breaks my heart, but keeps us in business - here in the Trenches.
Sorry for the lack of posting recently. Between totaling my car and Erin leaving, there have been a major bunch of custody emergencies. Add to that the almost 300 dozen cookies I make between my two Christmas cookie weekends, and something's got to give. It's the blog. See you all next week.
Except when they don't. What is it with selective enforcement of rules? My parents' trainer's car was broken into. The window was smashed, but nothing was taken. The police refused to take a report because "they'll never catch anyone." My motion to dismiss a modification of custody was denied because "they'd just amend the pleadings and refile." A former husband files an emergency motion in a closed case, doesn't get a summons issued, doesn't personally serve the former wife. The court ignores the lack of jurisdiction and grants the motion. Really? Is playing by the rules no longer in fashion? Maybe we just get to selectively determine which rules and laws get enforced. The crazy making part of this is that on a different day, in a different court, or maybe before a different judge, the result would have been totally opposite. I feel like a rat in a Skinner box. You remember that experiment: B.F. Skinner created a box in which rats pushed a lever and food came out every time. Then he changed the experiment so that when they pushed the lever, they received an electric shock. A third time, the rats were placed in the box and when they pushed the lever, sometimes food came out and sometimes they received an electric shock. What did Skinner find? Behavior that was reinforced by intermittent reinforcement was more resistant to extinction than behavior reinforced by positive or negative reinforcement alone. What that means is that when the rules and laws aren't enforced uniformly, then not only do those people who abide by the rules continue to do so, but also those people who don't abide by the rules will continue to do that as well in the hope that they will continue to get away with it. For those of us here in the Trenches, who try always to abide by the rules, it's frustrating, just like it is for our clients when their spouses don't play by the rules. It's especially frustrating to know that unless the rules are enforced consistently, that behavior will probably never change. I guess we need to look at all this as an opportunity to practice our coping skills.
When a case is proceeding along the litigation track, instead of collaboration or mediation, chances are better than good that the client will receive requests for discovery. For those of you lucky enough never to have been involved in a legal dispute, discovery is a scripted game in which each side has the right to obtain information from the other. Some of that information may take the form of written answers to written questions. Some of it is providing documents in response to written requests. Some of it is admitting or denying written statements. Some of it is verbally answering verbal questions. The first three types are the most common, and the responses are due to the other side in thirty days, not a lot of time. The client may be asked up to 30 written questions, and the number of documents that may be requested is limitless. Needles to say, discovery is overwhelming and unpleasant. What we have told our clients in the past is to break up the task into smaller chunks and do a little bit each day until it's done, because that will make it easier. Turns out we've been wrong.
In Chapter 6 of The Upside of Irrationality, Dan Ariely discusses human adaptation. His conclusion is that if you are doing something unpleasant, you adapt to the experience. Once you take a break, however, two things happen: first, the adaptation to the unpleasant event goes away; and second, because you remember it as unpleasant, it is harder to start the activity up again. Actually, this is easier to explain when you look at it in reverse. Imagine doing something pleasurable, like soaking in a hot tub. Feels good, doesn't it? Now imagine you need to get out to get a drink of water. How does the hot tub feel when you get back in? Does it feel like a continuation of what you felt when you got out for the drink, or does the deliciousness of the warm water on your cool skin feel even better than when you first entered the tub? If you're like most people, getting back in the tub feels even better than it did at first. You remembered the hot tub as a good feeling, but your body "forgot" exactly how it felt when you got out, so you were primed for it to feel even better getting back in. With discovery, it stinks doing it, and stopping short of completion simply primes you for it to feel horrible to pick it up again.
Moral of the story is to just pick up that discovery and get it done. Don't baby it, don't deal with it in small doses. Just do it. It will be less painful, and reducing pain is what we're all about here in the Trenches.
On this trip to visit mom and dad, I decided to bring (and read) more of the books I purchased at the International Academy of Collaborative Professionals Forum last month. The winning tome this time was Dan Ariely's The Upside of Irrationality. In Chapter 2, he writes about the meaning of labor, and in particular the pain of wasted labor. When I read it, I felt like I had been hit with a sledgehammer. The pain of wasted labor is one of the most difficult parts of life here in the Trenches. What most of us who work here know is that a good 98% of all family law cases settle without judicial determination. That means that at some point between the time the client first walks in our door until the moment the judge takes the bench to start the trial, the case will more than likely settle. That's great news for our clients. It's really hard for us who work in the Trenches, because we know that human nature being what it is, most of these cases won't settle early, but will settle on the eve of trial. We can't count on that, however, so we have to prepare as if the case will be tried. We have to make sure we know what witnesses we are going to use, prepare their testimony and prepare them to testify. We have to choose our exhibits, copy, and premark them. We have to prepare an opening and a closing. We have to anticipate and prepare for our opponent's case as well. We do all of this, knowing that in all probability, none of this work will see the light of day, and that much of the effort will have no correlation to the ultimate settlement of the case. In short, it will be meaningless. Do this long enough, and it becomes really difficult to find the motivation to prepare for trial, and it is all but impossible to find joy and meaning in it. We do it, though, because our clients need us to do it. We invent sayings such as "If you want to settle, prepare for trial" (sorry, Sun Tzu!), in order to give meaning and purpose to what would otherwise be wasted money and effort. We take time off and indulge in hobbies (like blogging) that give us a sense of accomplishment so that we can continue to do our jobs and provide our clients with the level of representation they expect and deserve. Here in the Trenches.
While I'm in Florida, I usually take time out to visit my longest term friends (I would say "oldest," but I'm thinking that wouldn't be appreciated). Whenever we get together, even if it is the day after Thanksgiving and their refrigerator is full of leftovers, he makes his mouth-watering barbeque ribs, homemade baked beans and corn, and I make my milk chocolate frosted brownies (from Maida Haetter's Book of Great American Desserts, which is, sadly, out of print). We always eat the same things, and even when we think of making something else, we never do. It's a tradition, and it's comfortable, kind of like turkey and stuffing on Thanksgiving. Would we have just as good a time together with a different menu? Of course we would (although those ribs really are fantastic); it just makes a good time that much better. The interesting thing about this particular friendship is that we have been friends for 26 years. We met in law school, where we were the Mutt and Jeff of our class. His wife became a friend as well. After graduation, we followed different career paths. I moved away from Florida; he stayed. I divorced, they've been married over 30 years. We watched our children grow up. We've remained friends - enjoying ribs and brownies and each other a couple of times a year. I'm one lucky girl.
Of course, the longevity of our friendship makes me think about the Trenches. Our clients' time in the Trenches is a period of tremendous change. Their most intimate relationships are contentious. The friends they had as a couple distance themselves, as if divorce is contagious. Traditions disintegrate, in the way most people think of traditions: no more Thanksgiving with the in-laws (which could be a good or a bad thing), alternating holidays with their children, and being alone at a time when they used to be with others. Losing those traditions is hard. It's especially difficult when our clients view the Traditions with a big "T" as the only ones that matter. The clients who recover most quickly from their time in the Trenches are the ones who maintain and cultivate the little "t" traditions, and who cultivate new traditions for the next stage of their lives. A tradition doesn't need to be a big deal with lots of hoopla and people; sometimes it's ribs and brownies, getting up at midnight to hit the Black Friday sales, or watching the ball drop in Times Square by Skype with your roommate from college. At a time when all the big things change, creating a foundation of little traditions and pleasures keeps our clients (and all of us) grounded and hopeful for the future, instead of mired in pain and loss. What is that saying form Lao Tzu? "A journey of a thousand miles begins with a single step." If you're in the Tenches now, take a step, even if you don't want to do it.
As you know, I am here celebrating Thanksgiving with my parents. My parents, who first appeared in this blog here, are truly awesome, and not just for the reasons in that first blog. What most of you may not know is that my parents have an age difference of 15 years. That doesn't feel like a lot when you're 24 and he's 39, but when you're 75 and he's 90, it's huge. As you might imagine, my dad is at a different stage in life than my mom at this point. They're still active socially, and they still go places and do things, but now my mom does all the driving. She makes sure he gets where he needs to go, and that he takes care of his health. She takes care of him, and as a result, it has placed limitations on her doing what she wants to do. What makes my parents different and awesome, is that my mom knew that this day would come way back when she married him. When she decided to marry a man 15 years older than her, she thought ahead and weighed all the variables and decided life with my dad was worth what might happen 51 years down the road. So, she's fine and they're still great.
A lot of couples with a large age disparity do well as they age and the tenor the of the relationship changes; but a lot don't. The reason why is that, unlike my parents, they didn't think ahead. They saw their personal chemistry and the lifestyle they enjoyed, and figured nothing would ever change. They thought there would never be a time when her stamina wasn't the same as his, when he wanted to stay put while she still wanted to party, or when she spent her time going from doctor to doctor while he was still young and working. When that time came, they were unprepared and resentful. Those people almost always end up in the Trenches, because having an aging spouse with increased needs requires a dedicated caregiver, one who gives without resentment or anger. People like my parents do it gladly; they feel fortunate they had a lot of years together before their age difference affected their lives, they find a balance in the circle of life, and most importantly, they love enough that the difference in their aging timelines is just part of the bargain. People who didn't think about it, can't do it at all, and in that way they are like almost every other client in the Trenches. Deciding to marry and deciding to have children are two of the most important decisions most of us make in our lives. Why is it most people give more critical thought to buying a car? It makes no sense at all - here in the Trenches.
I'm off to see Mom and Dad for Thanksgiving. It's Dad's 90th Thanksgiving - WOW! I feel so lucky to get to go home to see them. Unfortunately, our Office Testosterone is not lucky in that respect. Even though he has one TERRIFIC family (McIntyres and Pattisons, are you listening?), and I am sure they are doing everything in their power to make it a happy holiday, Office Testosterone is spending it in the hospital. He's still trying to get his blood counts where they need to be for a bone marrow transplant. Anyway, I wonder if I can ask all of you a favor? It won't take long, and I know he'd love it. Could you, would you please, either post well wishes for him as a comment here, or send him a message on Facebook (it's "Curtis McIntyre." That's his profile picture, above). If you feel so inclined, send him a joke (clean ones only, please) - laughter is the best medicine. Thank you for helping our Office Testosterone have a good holiday and Happy Thanksgiving to you all.
Not to be a downer, but today let's talk about the down side of the holidays. Sure, the holidays are wonderful (Personally, I ADORE Christmas), but for a lot of us, there is a flip side to all that holiday joy. For me, it's Thanksgiving. I love the holiday, seeing my family and having an excuse to eat a ton little stuffing. Thanksgiving is, however, a time of year where some really not good and not happy things have occurred in my life (this is, of course, why I'm not surprised that if I had to have a car accident, it would be a week before the holiday). Subconsciously, I kind of dread it, although consciously, I look forward to the holiday itself. The interesting thing is that I'm not alone. I can't begin to count the number of clients who walk in my door for whom the time of year in which they separated, decided to divorce, or suffered domestic violence are anniversaries of unpleasant events for them or their spouse. Holidays are especially tough times, because it's at these times that we miss those we love who are no longer with us.
You know you've heard me say it before, but I'll say it again - If you can avoid it, don't make major life changes at the holidays. Many of my clients or their spouses don't follow that advice (and I am not talking about cases of domestic abuse, for which you need to get out whenever you can); the thought of spending even one more holiday season with a spouse they no longer love is too much to bear, so they separate prior to the holidays, with the thought that the stress of being with their spouse at the holidays is greater than that of being newly separated. Usually, they're wrong, because separation brings its own stresses, and they're stresses my clients have never experienced, and that makes the stress feel so much worse.
If you have separated, and you are dreading the holidays, what can you do? All the tried and true advice applies: get enough sleep, exercise, and don't eat and drink too much. Beyond that, make plans, make new memories, and most of all, avoid triggers for unpleasant memories. If you always went as a family to the National Christmas Tree, maybe skip this year and try Mount Vernon. You can maintain family traditions of spending time together as a family doing special things without doing exactly the same things. It's kind of like adding a little hot pepper to the vegetables - they're still the same vegetables, but with a twist. Try something new, make new memories, and most of all, take care of yourself. This too will pass, the sun will come out tomorrow, it is always darkest before the dawn....you get the picture.
I should never have mentioned that the Master thought I had a car crash yesterday, because today I did. It was a rainy day, and I was heading home for lunch after settling a case (Hoorah!). There's one spot that is kind of slick, and my little Honda doesn't handle the road well, so I go a bit slow. Well, the car started to hydroplane, then to skid, and then I had a choice of whether to try to steer the car toward the right shoulder and the utility pole, or toward the left into oncoming traffic. I chose the former. The car is totaled. That's what they say when the front quarter is smashed in, the axle broken and he airbags deployed. (I'm OK. Thanks for asking. Thanks also to the lovely young woman who stopped to see if I was all right and call the police, the volunteer fire fighter who also stopped to check on me, and the police officers who were just great).
As I sit here and the Advil is wearing off, I started thinking about how my car accident is like life here in the Trenches (isn't it always?). Think about it. Lots of marriages are like driving my car on a beautiful day: smooth drive, good handling, enjoyable ride. Add a little water or snow, maybe a deer running across the road, and some cars will handle really well, and others, like my car, won't. They'll skid, they'll spin, they'll get out of control. Then they'll crash. Add a disabled child, a serious illness, a job loss or economic woes to a marriage, and some will weather the storm and be fine. Others will spiral out of control and fail. What's the difference between the ones that succeed and the ones that fail? For some of them, the spouses really should never have married. For others that fail, lack of attention and effort weakened them so that when adversity struck, they had no foundation left to support the marriage. The ones that make it understand that sometimes marriage, like life, is hard and you really have to put forth some effort to make it through the tough times, and more importantly, they want to do the work.
For the ones that fail, the spouses, like the driver of a car, have a choice. They can turn the car toward the shoulder, and try to avoid the utility pole, knowing that if they don't the only damage is to their car and themselves. They can turn the car into oncoming traffic, perhaps avoid the cars (but probably not), and not only destroy their car but probably someone else's and maybe hurt other, innocent people in the process. Divorcing spouses face the same types of choices: they can minimize the damage to themselves and others by choosing collaborative or cooperative process or mediation, or they can cause far more damage and hurt innocent people (like their children) by choosing litigation. How may rational people would choose a head on collision over steering toward the shoulder? Not many. So why do so many seemingly rational people choose litigation as their first choice for dispute resolution?
Ever have one of those days? I got up this morning, had a leisurely breakfast, checked my emails, got aggravated at what opposing counsel were up to, hopped in the car with plenty of time to get to my 10:00am hearing in Frederick. Got to Frederick at 9:40am - 40 minutes late for my 9:00am hearing. Oops! Yes, I was flustered, embarrassed and stressed when I checked the docket sheet in the lobby. I rushed upstairs to chambers, literally fell to my knees in front of the Master to apologize....and she said, "Thank God you're here. I thought you must have had a car crash and I was worried." No, she was not being facetious. You see, when I'm going to be late, even 5 minutes, I call. Every time. It doesn't happen often, but because I call if I am ever late, the Master was worried when I didn't show up and I didn't call. Another time, the docket was called at 9:00am. Opposing counsel was not a regular; and her client was not there. She had called him, and he was literally in the parking garage across the street. The Master said he should have been on time, held the hearing, and by the time he showed up at 9:03am, we were done. Ouch! Fast forward in the same case, same Master, one month later. The hearing was at 9:00am, but my client thought it was at 10:00am. Calendar was called, and I represented my client was late. No problem, said the Master, we'll pass the case until she gets here. She did, completely hysterical (she remembered what happened the first time), and the hearing was held. Why the difference in treatment? Reputation. I've spent a lot of time and effort making sure the court knows that I am always on time, and that I have enough respect for them to call if I'll be late. What that means is that on the rare occasions like today when I screw up my calendar, they're worried, not angry. It translates to my clients as well because I don't abuse it.
Reputation is built on other things as well. I have a reputation with court neutrals of providing an even handed history of a case; whenever one of them is appointed in a case in which I represent a party, they call me first to get a feel for the history of the case and the lay of the hand. I have a reputation with the court of dealing honestly and respectfully with the court and with counsel. I don't play games. I may kick your butt, but I'll do it honestly and according to the rules. My clients benefit from that reputation, but my reputation outlives any case. When clients hire lawyers, they hire for experience, knowledge... and reputation. The good reputation of the lawyer is one of the intangibles in trying and settling a case, and it matters here in the Trenches, as in the rest of life. It's fragile, and easily destroyed if abused. A bad reputation is long lasting and difficult to change. Don't ask us to risk a good reputation, because we won't - for anyone.
When did "ordinary" become a bad word? After I heard her speak at the IACP Forum in San Francisco, I started reading Brenè Brown's work, including her blog (click on her name and it will transport you there). I bought her book, The Gifts of Imperfection, and it's thought provoking. I had just finished the chapter on gratitude, in which she quotes from her other book, I Thought It Was Just Me (the story of my life): "We seem to measure the value of people's contributions (and sometimes their entire lives) by their level of public recognition. In other words, worth is measured by fame and fortune. Our culture is quick to dismiss quiet, ordinary, hardworking men and women. In many instances, we equate ordinary with boring or, even more dangerous, ordinary has become synonymous with meaningless." What's really interesting about this statement is that Dr. Brown goes on to talk about the importance of the ordinary in all of our lives. When you think back on it, what are the things we really remember? It's the little things, like your father slipping in to your graduation ceremony just at the right time, when you thought he was stuck in trial and would miss it; it's the powdered sugar fight your daughter and her friend have while making Christmas cookies; it's seeing a deer run in front of you in the fresh fallen snow. Sure, there are moments of public recognition, and they're important, but when you look back at what brings you joy, chances are those things are not in the top ten.
Our clients here in the Trenches are filled with fear, consumed by feelings of loss, and overwhelmed by the changes facing them. It's hard to find joy at such times. It is especially hard if you have to look for the extraordinary in order to create those feelings. It is so much more manageable to think of something ordinary, just one thing that makes you smile, whether it's the way the sun shines on the water, finding a parking space right in front of the store, or getting the mail and finding no bills (and no junk mail!). Little moments of joy in the ordinary are not so hard to manage, and they build on themselves and affect your entire outlook on life. How you get through life in the Trenches and what you find on the other side depends on it. Glass half full, anyone?
Some people are amazed there are so many disagreements in the world; I'm amazed there are so few. If you really stop to think about it, I don't know how anyone agrees on anything. Everything we hear, we hear through the filter of our own experience and internal dialogue. Unless the speaker and the listener have identical experience and internal talk, they are never going to hear the exact same conversation. It may be close enough for horseshoes, but it is not the same. That may matter and it may not. Where it matters most is when emotions are involved. Today, I was reminded of no less than four occasions where it mattered very much; two involved me and two involved friends of mine. Just so I don't "out" any of my friends unnecessarily, I'll use only mine. A little over a year ago, I was involved in a very emotionally laden and delicate negotiation to bid on training contract for the institute of which I am a member. We don't need to go into a lot of detail, but suffice it to say that it was really ugly and emotionally draining. As the negotiations were ongoing, I kept our governing board informed and let them know how difficult and exhausting the negotiations were becoming (at least I thought I did...). After we got the contract, I asked for additional help in planning the training itself because I was worn out - and got no reply and no additional help. I was mentally and emotionally exhausted, but soldiered on, asking one of my good friends to help "unofficially." (You know who you are, and I do love you for all you do!). I felt pretty unappreciated. Fast forward one year. When I was in San Francisco two weeks ago, I ended up having breakfast with two members of the governing board. We started talking about what the negotiations were like a year ago, and how really difficult and tiring they were. Mid way through the conversation, both of them said that they had no idea that things had been that bad, and they were sorry I had to go through it, and they really appreciated my efforts. After I finished staring at them like they had two heads each, I started thinking. Did I not express myself a year ago? No, I did. Was I clear? I thought I was, but obviously what was clear to me was not clear to my audience. I was too caught up in my emotional drama a year ago to check in to make sure what I said and what was heard were the same. What was different in San Francisco was that I changed my internal dialogue, and it opened me to the possibility that they weren't uncaring but just didn't understand. I was then able to express myself so that my audience could really hear what I was saying. It took a year, but I felt heard and my efforts appreciated. Really communicating is hard and takes lot of work. That's probably why most of us do it so poorly - we don't really realize how important it is, and aren't willing or don't have the energy to make the effort all of the time. If we did, there'd probably be less work here in the Trenches.
My colleague, John Crouch, posted on his blog about the disadvantages of collaborative law. What I love about it is that his post turned out to be more about the disadvantages of litigation. I really like what he has to say about the disadvantages of litigation: "you can use the timing and immense stress and fear of impending trials to get people to sign settlements they never would agree to if they actually had time to consider them." That point is something that most people really don't consider in discussing litigation. In litigation, the court decides how fast or how slowly your case progresses. That the process moves too slowly or too quickly is really too bad: the pace belongs to the court without any consideration of what works for you or your family. In collaborative law, the process moves at a pace which is comfortable for the parties. You progress when everyone is ready to do so. I had a case where my client had a health issue, and in the middle of the collaborative process, her issue became critical for a period. we were able to pause the process until her health recovered, and then picked it up again. That couldn't happen in litigation: you might get the court to postpone a hearing, but then again, you might not; and even if it was postponed, you would have no control over when the hearing would be rescheduled. The other thing about John's statement is that even though most cases settle, many, many of them settle at the 11th hour. Some settle the day before trial, some the night before, some at the courthouse before trial and some during trial. The court has its schedule and doesn't have a lot of flexibility. There's only so much time the court will allow people to work out a settlement when they are scheduled to hold a trial, because the court has scheduled a certain amount of time and no more, so they want to get it done. That means there is incredible time pressure to negotiate and come to an agreement. The amount of pressure that places on people is incredible: they are preparing for presenting their evidence before a judge who will decide their future, so they're anxious to begin, and then you add to that the stress of having to analyze options and reach a decision. A lot of clients melt down (their lawyers don't love it either), and they make decisions that are usually not as good as if they had the time to reflect and weigh options. Some of their decisions are just bad, and driven by fear and anxiety. In the collaborative process, people are given enough time to gather information, develop and weigh options, negotiate and reach conclusions that are acceptable to both sides to the dispute.
The holidays will soon be upon us, and with them, all of the drama and angst that is our life here in the Trenches. My favorite blogger, Gretchen Rubin, posted some tips for dealing with difficult relatives over the holidays. I think those tips are great, and most people need them every once in a while. Here in the Trenches, I'd like to add a few more.
1. If you aren't separated yet, think long and hard before you decide to separate at the holidays. Not only will you forever link the holidays with a stressful and perhaps unhappy time in your life, if you have children, they definitely will.
2. If you're thinking of separating, please don't drink alcohol at holiday celebrations. Alcohol lowers inhibitions, and if you're already stressed or spending time with people you don't like, you may very well do or say something you will regret, especially if you know you won't be part of that family unit next year. Even if they already don't like you, why give people more ammunition?
3. Especially if you have children, try to maintain family traditions as much as possible. Children need stability and predictability and family traditions provide that for them. Now is not the time to decide that you should have Christmas Eve at your house, when the children have always spent that evening at Aunt Tilly's.
4. If you don't have your children with you on the holiday, find something else to do. Wallowing in self pity never helped anyone.
5. If you have your children with you on the holiday, don't spend your time crying and moaning the loss of your marriage. The children feel the loss too, they don't need you to remind them. They need you to show them that everything will be OK. Even if you don't believe it, fake it til you make it - your children will thank you.
6. If the thought of the holidays causes you to cry, hyperventilate, develop a migraine, shake uncontrollably, or want a drink, schedule some special time with your therapist. Your family and those of us in the Trenches will thank you.
Lots of changes going on in the Trenches. Yes, we're searching for a new home in Frederick (still!). "The staff" has supervised the annual clean up/bulldozing of my office. But, biggest change of all is..... Erin is leaving us :( After 7 years of part, part time, to part time, to full time employee, she is leaving us to work in the Montgomery County Courtroom Clerks' Office. I know, she had to spread her wings and fly sometime, but I always thought "sometime" would be sometime far in the future - forever away. Wishing makes it so, right? (Wrong!). Her last day is November 29, which is coincidentally, my last day out of town with the folks. That means my last day with her is - gulp - November 22. That's less than 3 weeks away. (Anyone have an Excedrin?)
You all know we wish her well, send her off with our love, and make it a point to visit her for lunch every month or so. If you talk to her before she goes, let her know you'll miss her. I know Chrystal and I will. What will Leeroy do?
Well, we did it. Bruce and I taught our workshop on informed consent at the annual Forum for the International Academy of Collaborative Practice. It was Sunday morning, the last workshops of the Forum, and we had six attendees. Our room could only hold fifteen, and even the bigger rooms that could hold fifty or more only had twenty one people. So, I think we did well. As usually happens, you learn something from every seminar you teach, and Sunday was no exception. When we asked our learners what they took away from the seminar, a lawyer from Canada said that she realized that although she routinely obtains informed consent from clients for the collaborative process, she hasn't really ever obtained the same for litigation. A light bulb moment for her, and for us. Even though I've always said that litigators never obtain informed consent to litigate, I was amazed that it was the take away piece at the IACP Forum, the annual conference for collaborative practice. What an unintended consequence. What we're about as collaborative practitioners is to help our clients make informed choices, both for their lives in the future and for the process used to get them there, so unintended or not, I'm thrilled with the result of our workshop. If more clients knew about the advantages and disadvantages of litigation, more clients would choose mediation or collaboration instead and retain control over their family's future.
Today is Random Thought Day. So, if you needed any proof I was absolutely correct in what I said in my post about The Royal Wedding, check out Kim Kardashian's filing for divorce only 72 days after she got married in one of the most ostentatious weddings of the century. Was she so caught up in wedding planning fever that she didn't notice that they were so incompatible that they couldn't even stay married 3 months? Truly amazing.
Also, when I tell you something won't work, why must you keep on badgering me and insisting it will? The Trenches have now spent three days telling another law firm that the way they want our client to execute a document won't work. We say that because we know our client. What we get in return is simply an insistence that things be done their way, and they will not entertain any other option, even though we've offered many to them. When I say "no," wording the question differently will not change the answer. So stop.
While I'm ranting, when a judge asks you what you want, tell them. Don't talk around in circles, saying nothing. If you have a plan, and they ask, tell them what it is. I spent 15 minutes in a hearing this morning with an unrepresented party who kept saying we were close to agreement (we're not), because he has a plan to bridge the distance between the two positions. The judge asked him what his plan was at least five times, five different ways. He wouldn't tell her. So, instead of working toward settlement, we got to play 20 questions. What a way to waste everyone's time.
Sometimes the Trenches are fun, sometimes they're satisfying, and sometimes they're just not. They're frustrating. Today is one of those days.
Our Office Testosterone has relapsed. He is in the hospital, preparing for a bone marrow transplant. This is so difficult for him and all who love him - to be in remission and then such a short time later to have relapsed. We are sending all of the positive energy we have to him and visualizing his recovery and long, healthy life.