I'll admit it - I was up at 5:00am to watch the royal wedding, and yes, I was also up to watch the wedding of Charles and Diana. The differences between the two are profound. Charles and Diana barely knew each other when they wed; William and Kate have known each other for almost a decade. Charles was 14 years older than Diana; Kate is slightly older than William, but for all intents and purposes they are the same age. Do we even need to talk about the engagement interview? Did Charles really think a good response to the question, "Are you in love?" was "Yes, whatever that means." The most profound difference, however, lies in the weddings themselves. Diana was a fairy tale princess bride, full of crinoline, lace, poufs and rosettes. Even on her wedding day, she overshadowed her groom. It was surely a sign of things to come. Kate was simply elegant, in an understated way. She complemented her groom and did not compete with him. The wedding itself was simple and elegant in a way Charles and Diana's was not.
When you look at British royal weddings in general, you learn something about couples. With the exception of Queen Elizabeth's wedding to Prince Phillip, not one of the fairy tale weddings has created a wedding that lasts. By contrast, the simple ceremonies, where the bride and groom complement each other, and where the ceremony reflects the personalities of the couple and not the needs of the public, have all been successful. It's not just royals. I can't begin to tell you the number of people who have had over the top weddings who end up in my office. By contrast, people like my grandparents who eloped after one day and stayed married for 63 years, and my parents who were married by a judge in chambers and just celebrated their 51st year of marriage, rarely see the inside of my office. Why is that? I think it's because the latter understand the true symbolism of a wedding as expressing the couple's commitment to each other, and the former loses sight of that meaning in favor of public displays and opinion. A marriage that starts with a meaningful but not necessarily ostentatious wedding contains a couple that has thought about the reasons they wed, and the conscious understanding of those reasons stays with them when the fairy dust wears off. A wedding is a only a day; it either produces a public show and only that, or it reflects a deeper bond between the couple. Which wedding would you like?
As traditional lawyers, we would say that the giving of legal advice is what we do, along with advocating for our client's stated position. Our education and training in the reading and interpretation of laws and cases gives us power and authority over our clients, because we know something big and mysterious that they don't. It is part of our aura and our mystery, and as traditional lawyers we use it to our advantage.
What is legal advice anyway? It is a codified opinion. It's what legislators think their constituents want, compromises they think they can pass. It's a predictor of what might happen if a judge made a decision. It is a demonstration of the fluidity of the law. It demonstrates the futility of applying hard and fast rules to changing facts.
As traditional lawyers, we don't necessarily want our clients to know all of this because it takes away some of the law's mystique. My question is why? Why would we not want our clients to know the law, to have a frame of reference for decision-making, to know the parameters of their options? Why is it not OK to know that different lawyers, and different judges will disagree on the application of the law to the facts? Do we really think that people won't hire us if they knew the truth? If that's the case, then we really aren't providing much value to our clients. There is a value to our talking to our clients about the law because it is a realm in which we are comfortable and our clients are not. Its usefulness is not just in the providing of the information but also the discussion with the client that ensues in which we help the client test options against the legal parameters. It foments collaborative dialogue between the clients, the client and their lawyer and the lawyers themselves. It is a debate that improves the delivery of legal services and redefines what it means to give legal advice.
This week has been Passover. As part of the Passover celebration, we re-tell the story of Exodus. Unlike some other religions, in Judaism, "re-tell" means dissect, debate and analyze the story. In particular, at Passover, the learned men (called Rabbis), discuss the meaning of the word "day." Does it mean simply the daylight, or does it include nighttime as well? Does the plural of the word mean a few days, a week, or a lifetime? Each of the various interpretations changes the meaning of the bible passage in which they are found, so the rabbis continue to debate, looking not only to the word itself, but the modifiers in the sentence, and its location in the passage. What the ancient rabbis knew was that the meaning of a word depends on its context.
So, what does this have to do with advocacy? Plenty. The advent of collaborative practice has created a new debate concerning what it means to advocate for a client. "To advocate" means to set forth and promote one's position, to argue for or plead in favor of a position before a tribunal. Does advocacy have a different meaning depending on whether one is advocating before a court or before the audience of one's family? Those attorneys who are hostile to alternative methods of dispute resolution such as mediation or collaborative practice would say it does. I think not. How we advocate changes depending on the venue, but the venue does not change the advocacy itself. Just as with the rabbis at Passover who argued over the meaning of the word "day," lawyers are engaging in a discussion over the definition of the word "advocate."
That debate hinges on what is or should be a client's position. Traditional lawyers and litigators would say that the client's position is what the client says they want - the house, no alimony, primary custody, and that is for what they advocate. If instead, we look at the client's "position" as what meets their highest needs, what is at the root of their position, what helps the client not return to court, and what is practical for the client, then we are still advocating for the client, albeit at a deeper, more meaningful level for the client. If we help the client to understand why they are taking a position, and to inform them of the law and make sure they are making an intelligent decision, and help them speak for themselves, then are we not also advocating? If we level the playing field by making the process fair and even-handed, and sharing information and communicating openly, in order to make it safe for the client to explore and address their needs, isn't that also part of advocacy? Presenting evidence in court, supporting a client in mediation, representing a client in collaboration are all the advocacy - the question is whether the public face is all there is to one's advocacy, or whether it is the public face is really the overt manifestation of the long process and deep work of the advocate. The latter serves our clients better than the former, and gives them tools to move forward in their lives.
Life is full of pluses and minuses, good and bad, highs and lows. Today had both. I was honored by the president of my local bar association for outstanding service to the bar. It was really exciting and gratifying to be recognized and honored. Unfortunately, this morning one of my dearest friends found out that an immediate family member, who has been sick with cancer for quite some time, is going to Hospice. Watching him struggle with such intense grief is almost too much to bear. It has quite overwhelmed me.
Being angry causes people to do things that are not in their best interests. See yesterday's post for part one of this discussion. Anger also costs people money in attorney's fees. If I were the greedy type, I would want an angry client any day, especially if I could keep them angry. Angry people can't see a compromise, and they will not reach an agreement easily. Angry people also have trouble thinking rationally. I have a number of cases in the office where one side or the other is unreasonably angry at the other. These cases don't resolve and they cause a large amount of stress to the lawyers and their staff.
Part of my job, the part that really doesn't involve giving legal advice, is helping the clients channel and release their anger in a productive and healthy way. Only then can they clearly think about what is important and what is not, and what they need to move forward in a healthy way. Anger, like guilt, is a poor motivator, and it is my job here in the trenches to take it out of the equation as much as possible.
Tax Day and a full moon, what a combination. I hope everyone has either filed their taxes or requested an extension. Tax time is always interesting here in the trenches. When people aren't divorced yet, do they file together or separately? If they file separately, who claims the children? The house? Every year, for at least one couple, they both do, and the IRS isn't happy. After the divorce, someone claims the children when they shouldn't.
Today, however, I think I came across the most incredible tax maneuver ever. The couple has been divorced for numerous years. The husband has been paying alimony. He has now decided that he should never have been paying alimony, because he thinks the ex-wife was ineligible by the terms of their agreement. He's asked the court to modify/terminate his alimony retroactive to the day it started. Yes, he's really mad at her, for reasons unrelated to the payment of alimony. Let's follow this to its logical conclusion, shall we? If he wins, he'll get a judgment for the back alimony. He will also have to refile his last few years of taxes, claim the income he deducted because it was paid as alimony, and then pay taxes on it. Oh, did I forget, penalties too? And attorney's fees? I figure he comes out behind even if he wins, which he won't. I wonder if it would be worth it. I'm not going to let him find out, I'm just wondering. It continually amazes me what people will do when they're angry. I guess when they stop amazing me, I'll get out of the trenches.
Every once in a while, you need to go back to basics. The basics in the trenches are communication skills. Not how you say it, but how it is heard. I was taken back to school today, luckily by one of my favorite clients. As part of the settlement of her case, title to her house is being transferred. Settlement is tomorrow. I bet you're starting to see where this is going, right? So the client calls the office very upset because I didn't make sure that everything was happening on time. Huh? The settlement was ready to go; what was she talking about? She was talking about the settlement. Well, so was I. Trouble was, I was talking about the settlement of the transfer of the house; she was talking about the entire settlement package, all of the terms, conditions, money and property transfers related to her divorce. Yes, it took us a few minutes to realize that we were talking about two separate things, and we had a good laugh over it. The conversation gave me pause, however. How many times do I speak, thinking that the other person is interpreting what I'm saying the way I mean it? How often do I check? Quite a bit, but probably not enough. Lesson learned.
No, this is not an episode of "The Apprentice." Today I was fired by a client. Not just any client. A client whose case I had positioned perfectly for him to get everything he wanted. And he fired me. Why? Because although I had maneuvered and finagled his case perfectly, so that trying his case would be a cake walk, he had no appreciation for the skill involved in that. His perception was that unless that his attorney acted like a rabid dog, she wasn't really advocating for him. If you talked to all the professionals in this case, and there are a lot of them, they would all agree I'd done a wonderful job of advocating for my client, but the most important person for my continued employment, my client, did not. It's not because he didn't want me to be effective, or that he didn't want to win his case. It's because he had no understanding of what it means to be an effective advocate. His only model is what he sees on TV and in movies, and frankly, good advocacy rarely makes good drama in the same way ferocious litigation does.
So, what does it mean to be an effective advocate? It means, first and foremost, really knowing the law and what the court can and can't do. Second, it means knowing your court and how the judges apply the law. Third, it means really understanding the facts, all of the facts, of your case. Fourth, it means cultivating relationships with other professionals over time, so that when you bring the facts to their attention, they find what you say to be credible. Fifth, it means ensuring that the right people are presented the right facts at the right time. Sometimes, the right time is in court, but usually the right time is way before you enter the courtroom. If this were a game, it would be chess, not boxing - not as exciting as throwing punches, the skill involved isn't as readily observable, but it requires at least as much expertise, if not more.
It takes a strong individual to lead from behind. That's why not everyone can do it, and why most companies do not enjoy a culture of servant leadership. Servant leaders have a desire to serve first, and their passion for their cause and devotion to the team make others turn to them to lead. These folks do what needs to be done, jump in and help where the need is greatest. They put the needs of other members of their team first, stick their egos on the shelf, and promote and encourage the members of the team to do their best, even if it means they have a lesser role. They understand that only when we support, promote and encourage each other to do their best can we all succeed. They inspire everyone around them to work together and be their best selves, and as a result, the energy around them is high, as is the quality of work from the group as a whole. They don't lead for the sake of leading, don't search for power, and yet they yield so much. The selfless, servant leader is relatively rare, but when you find one, you know it. I have been fortunate enough to work closely with two of these individuals at the same time. They continually amaze me, and I'd follow them anywhere.
Today was groundbreaking - the first meeting of the Collaborative Law Section of the Montgomery County Bar Association. Some old faces and friends were there, and a lot of new ones. Again I was struck by the level of energy in a room of people who have dedicated themselves to collaborative practice. Everyone is so excited about really helping clients help themselves. If you're reading this and have no idea what I'm talking about, visit the website of International Academy of Collaborative Professionals.
What was truly fascinating about this meeting, and about collaborative meetings in general, is that people who embrace collaborative practice, integrate it into their entire beings. In the normal practice of law, lawyers really don't get to know each other. Sure, we may chit chat to pass the time of day, but for the most part, we really don't actually know much about each other. Some of us can have multiple cases against each other, and our relationships remain fairly superficial. Not so with collaborative. In order to practice collaboratively, the professionals involved have to trust each other, and I mean really trust each other. The only way to do that is to get to know each other. At the meeting tonight, there were lawyers from different parts of the county, different areas of practice, different size firms, and different types of practices, all talking and laughing together. People who have done a lot of cases were giving hints to newly trained lawyers. It gave me a warm feeling, especially when I looked over the room and realized all of the people there who were my good friends, became so through collaborative practice.
The added bonus of all of this is that most of us who practice collaboratively still have traditional law practices. The connections we build as collaborators spills over into the traditional practice of law. The result is that we treat our co-counsel as people we genuinely like, and it works to our clients' advantage. We communicate better, as we are more apt to interpret what they say as non-adversarial, and care more about having ourselves understood, and about understanding what they're saying. That makes it easier to reach a settlement because we learn both clients' needs and are committed to working together for a solution - even when the case isn't collaborative. It's kind of like Lucy, Charlie Brown and the football. We trust that Lucy won't pull the football away, and in the collaborative world, she doesn't, so we can let go of that anxiety and just concentrate on kicking the football well. Is that better for our clietnts? Of course it is.
I didn't go to Amelia Island. I'm missing all of my friends in the ABA Family Law Section, but all of the upheaval about the office move made the trip impossible. I'm sorry not to be there, but I decided to take advantage of the time I was planning on being gone to do some office maintenance work. Today's task was working on my website (Check it out and let me know what you think, and what we can add or change). We also worked on celebrating Chrystal's birthday (her 29th - ssh, don't tell!).
There's a reason for the saying that a person who represents himself has a fool for a lawyer. Never has that been driven home to me so forcefully as now. No, I'm not representing myself. What I am doing is negotiating to purchase an office. You would think that, as I negotiate for a living, this would be a piece of cake. Except it's not. It's excruciating. When I negotiate for clients, I am in my element. I understand tax consequences (not perfectly, but enough for a ball park, and enough to know I need to consult with a tax professional), equity, and weighing options. I know what's worth a fight, and how to monetize a return on investing in going to trial versus settling. I know the value of a house and how to measure it. You would think it would be easy to determine the value of an office building, to know how to measure it and to know what is a fair price. If I were negotiating for you, no problem. Negotiating for me is completely different because it introduces the emotional element. What if I pay too much? What if I miss an issue? What if this is the wrong decision?
The emotions completely change the decision making process. They make it much harder to assess the options. How do I deal with this anxiety? Probably differently from the next guy, but when I feel anxious, information reduces my anxiety. I ask the people who know the subject matter - in this case, my usual appraiser, my banker. I ask my friends, especially the ones who have negotiated leases and purchased commercial real estate. Everybody has given me a piece of information so that I can make my own decision.
Isn't this what our clients do? They reduce their anxiety in a variety of ways, and one of the usual ways is to talk about their issues and elicit help resolving them. Why is it that when clients do this, we cringe? Because my emotionality is related to simply the stress of making one finite decision. Our clients are emotional 24/7. Their lives are in turmoil and emotional stress is their constant companion. So, although I am emotional about one issue, I am unemotional enough in general to be able to identify the source of my stress and what I need to do to resolve it. Our clients are so stressed that not only are they unable to identify the source of their stress, they are incapable of pinpointing what they need to do to resolve it. Because of that, they cannot distill useful information from the useless and the harmful. If we help our clients reduce their stress level in general, and help them feel safe, then they are better to tell us what they need to help themselves and help us help them. It's probably the most vital part of our job, because without it we can't know what is important to the client and how to help them meet their goals. What calms and relaxes your clients? Shouldn't you find out?
Plenty. Personally, I love Southwest Airlines. I know that, this week, that's probably an unpopular point of view. Too bad. Here's what I love about Southwest:
1. The fare includes everything. There are no hidden charges: no charge for baggage, for choosing seats, for breathing.
2. The employees are friendly and helpful. They have fun at work, and in a way that includes the customers.
3. The flights run on time.
4. For all the grousing about boarding by pass number, the boarding runs smoothly. It's actually fun to compare numbers with other passengers because you get to interact with others.
5. Most of all, I love that Southwest thought about flying from the passenger's point of view.
All of the above place Southwest head and shoulders above the other airlines. Unfortunately, Southwest was so busy putting its best face forward to the public that it forgot to take care of the back office. Planes that hadn't been inspected or serviced for years; maintenance neglected. We all know what happened - it was front and center in the news this week. A plane literally burst at the seams. In one fell swoop, all of the good things Southwest does are forgotten. As a result, Southwest has flight delays and cancellations all over the place as the company scrambles to inspect and repair its planes. Passengers are afraid reluctant to fly Southwest. What would it have cost Southwest to keep up with the repairs and inspections? Not much, certainly much less than the loss of reputation and business. I hope it gets its act together, because I still love Southwest. Fortunately, I have a long memory; most customers don't.
What can we as lawyers learn from Southwest? A lot, as it turns out. When was the last time most of us looked at our practices from the client's point of view? From what I've seen, not recently. If we did, we wouldn't nickel and dime our clients for postage, faxes and copies. We would be more pleasant on the phone, and more sympathetic and empathetic of our clients' problems. We would make sure we remembered their children's names and ages.We would under-promise and over-deliver.
We would also have balance in our practices by looking at our practices as business people. We would make sure contact information for everyone is correct everywhere. We would proofread documents carefully to make sure they had no obvious errors. We would make sure our equipment is up to date and repaired. We would make sure everything we did reflected the care we provide for our clients. We would treat everyone, clients, judges, masters, lawyers, as we want to be treated.
Bottom line: Having the public love what you stand for means nothing if you don't deliver what the public wants. What does your public want?
and came back rejuvenated. Sometimes, you don't realize how much you need to get away until you do. Our Erin spent ten days on the beaches of Puerto Rico. She came back slightly sunburned with a lovely glow, and with her thinking hat on. She single-handedly figured out a solution to a vexing procedural problem, and then kept thinking of more solutions. What a gal! We're glad to have her back, and it doesn't hurt that she brought our four-legged mascot with her.