Monday, October 31, 2011

Office Testosterone - Update

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. 

Friday, October 28, 2011


Leaving my heart in San Francisco
At the IACP Forum
Where I'm speaking on Sunday!

Wednesday, October 26, 2011

What if....

today were the last day of your life or of someone you love?  Is there anything you always wanted to say but figured you had time to do it later?  How do you know if later will ever come, or if it will be too late?  Isn't it funny how we always find the time to express negative emotions, to give someone else a piece of our mind, to tell someone when they give us bad service.  How often, though, do we tell our server they got it just right, that we appreciate what someone did for us, that we appreciate our loved ones?  My guess is  - not often enough. I'm not talking about false praise, but really looking to find something to appreciate, and telling the other person that you do.  We're moving all the time, consumed by the stresses of day to day living, work and family.  It's hard to do more than just get through everything you have to do.  I wonder, however, how many of our clients here in the Trenches wouldn't be there if they'd just looked for something positive in their spouse every day or even every week, and told them.  I think we'd see a lot fewer here in the Trenches, if what our clients say about not feeling appreciated is anything to go by.  Try it - if you've already been in the Trenches, maybe it'll keep you from coming back.

Tuesday, October 25, 2011

We Don't Always Need to Share

The saying goes "A son is your son til he takes a wife, but a daughter is your daughter for the rest of your life."  Well, bull.  Your child is always your child.   I don't care if they're 3 or 30, many of the same rules apply.  Here in the Trenches, we try to recognize that children are always affected by divorce.  In the collaborative process, we have used a child specialist to help children in their 20s and 30s and their parents deal with the realities of the marital dissolution on the family.  We tell parents, no matter what process they use to dissolve their marriage, not to involve their children in issues that are appropriately resolved between themselves.  So what is it about some people that they feel that when their children turn 18, those rules no longer apply?  I get that you may not like the other parent, it killed you to deal with them while the children were little, and you couldn't wait until they were adults so that you no longer had to discuss day to day parenting and access issues.  Some issues, however, continue past the age of majority - college education, health insurance and payment for health expenses, weddings, and babies.  These are not your children's issues.  They weren't party to your divorce or marital property settlement, and it is not their responsibility to negotiate those issues with their other parent.  Don't ask them to do it.  It's not appropriate.  Remember, in some ways, your children are always your children, even when they are parents themselves.  Be the parent.

Monday, October 24, 2011

What if?

I never lose anything.  Not the things everyone else loses, like pens and sunglasses.  Not even the things I would like to lose.  I have, however, lost my mobile hotspot.  I have looked where I usually keep it (my purse - yes, I've checked all of them), my briefcases, the floor of my car (both of them), and the inside of every client file, folder and box in my office.  It's not there.  Period.  So I have to go buy a new one.  You know once I replace it, the old one will show up.  That thought has probably been what has kept me from replacing it yet.  It's human nature to think that lost items will reappear, and that if we wait longer, something better will come along.  It's also what causes buyer's remorse, that feeling that if the other side to a negotiation accepted our offer, we could have done better.
We see buyer's remorse a lot here in the Trenches.  Negotiating a divorce or custody agreement is a negotiation like most others, with one very important difference.  Not only do we distrust the other side (no difference there - who really trusts a car salesman?), but we have the additional emotional underlay of broken promises and unmet expectations.  The hardest thing to do here in the Trenches is to focus on what you want and need, without regard to what your former spouse/the other parent thinks you should have.  Of course, you won't reach settlement if the other party doesn't also get their wants and needs meant, and we need to be mindful of that.  The point is, however, if you've done the hard work of figuring out what you want, need and will find acceptable, does it really matter if the other side agrees to that easily?  Of course it doesn't.  That is why, however, here in the Trenches we work very hard to help our clients really figure out what they want and need.  That way, if the other side agrees, they're done and happy for it, as opposed to worrying if they could have done better.  Wonder where my mobile hotspot will turn up....

Saturday, October 22, 2011


...And you can't have it!
I love you, I hate you -
Rinse, repeat
Fun with Friends

Thursday, October 20, 2011

If A Tree Falls in The Forest.....

Do you sometimes feel like the tree falling in the forest?  You know, the one that we're not sure makes a sound.  Sometimes we all feel like that tree:  alone among others of our kind, yelling into the wind when no one is listening.  Or maybe we feel like the tourist in a foreign country:  speaking when no one understands us.  You know you're the tree or the tourist when you find yourself having the same conversation over and over again with the same person.  Have the conversation enough times, and it's a relationship killer.  We think the reason the conversation gets repeated is because the speaker is unclear, or maybe it's because the listener is unable to hear the message.  Most of the time, the reason is that the speaker and the listener are so engrossed in their version of the conversation that they don't hear the other's version.  It's kind of like my Grandma Molly and Cousin Rose.  Both of them were stone deaf and hadn't seen each other in years.  Rose came to town, and she and Molly were so thrilled to see each other that they couldn't wait to catch up.  They did not stop talking all weekend, and had a wonderful time.  Problem was, they were having two entirely different conversations - all weekend.  Neither one heard a word the other said.  They didn't care because their purpose was just to be together; the conversation was secondary, and they both knew and accepted that.  Unlike my grandma and her cousin, for most people, it is the conversation that's important, and yet most of us don't hear the other any better than Molly and Rose, nor do we care.  We just want to be understood.  First, however, we need to understand.  We need to put aside our need to be understood and really work at understanding.  Then we can have new conversations and not just the same one over and over again.

Wednesday, October 19, 2011

Plan for War and Find Peace

I was fired by a client this week.  ( I know - again?)  Did I do anything wrong?  Not what you think.  What was wrong was the connection between her perception and my reality.  Let me explain.  If you read this blog with any regularity, you know I am a strong believer in parties settling their differences, preferably themselves, and almost always with a lot of help, advice and support from those of us in the Trenches.  I firmly believe that a durable settlement is not possible by judicial intervention.  There, I said it.  That does not mean that I don't believe that there are times a case has to be litigated or that I can't litigate vigorously (and with very positive results).  Yet, many clients think that collaborative and mediation mindset precludes the litigation one.  That was this client.  She was happy with my services, her second opinion told her I was doing a really good job for her, but although she said she "wanted" to settle (not!), she was afraid that because of my collaborative philosophy, I wouldn't represent her with the zeal she needed.  If you read this blog with any regularity, you know her fears are not justified in fact, but they are real to her, and I wish her well with her new counsel.  I hope they are a better fit.

           Obviously, this client does not share my philosophy of the practice of law and has never read Sun Tzu, The Art of War.  Here are just a few of my favorite quotations:

“The supreme art of war is to subdue the enemy without fighting.” 

“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win”

"For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill."

"To have peace you must be ready for War !"

Sun Tzu felt that finding victory while avoiding war was the ultimate goal of a warrior.  The warrior's preparation of his body, his mind and his soul came first.  Then came the preparation of his men, and the assessment of the enemy's strengths and weaknesses, all in preparation for a strategy of war.  The victory was had in the preparation and the groundwork; the battle itself was anticlimax.  So it is here in the Trenches.  We prepare ourselves and our clients fully, we learn to know our opponent as well as we do our own client, and then we form a strategy that helps our clients achieve their goals in a way that is also acceptable to the other side.  We win without the war of litigation.  We do not fear it, we plan for it in hopes we can avoid it, but if not we are ready to fight - here in the Trenches.

Tuesday, October 18, 2011

One Tough Broad

After I posted a comment on Facebook about my experience at the Baltimore Marathon, one of my friends ( a real friend, not just a Facebook one), commented that I was one tough broad.  It made me laugh, because this friend buried her husband less than six months ago and has two children under the age of 7 while managing an active and successful litigation practice (she is not a collaborative practitioner), and she said I was one tough broad.   Really?  True, I ran over 2 miles in a lot of physical pain, but every day this friend gets up, parents her children and takes care of her clients, all while suffering an unthinkable and unimaginably painful loss.  She is amazing.  Do most of her clients know about her loss?  Maybe, but not because she shows them any less sympathy, or cares for them and their cases any less. 
I think there would be a huge temptation for my friend to tell her clients to just get over it, that their problems and complaints can't compare to what she's going through.  She doesn't do that, however.  She treats them all the same as she always did.  She soldiers through every day despite her grief.  She's my hero.
Truth be told, most of us who work in the Trenches have suffered.  We're just like everyone else, with the same problems and tragedies as many of our clients.  Some of our problems pale in comparison to what our clients have gone through, and sometimes, our client's difficulties are trivial to what we have experienced in our own lives.  The best of us, however, never feel our clients' problems are trivial, let alone tell them that.  We all realize that every person's pain is just as awful to them as ours is to us, even though it may not be the same kind of pain.  It's like comparing my knee to my friend's loss.  What she and I both know is that we need to recognize each other's pain and celebrate the triumphs over it, because it is vital that the victories and not the defeats define us and give us the hope and strength to get up each day and live our lives to their fullest.  It is our job here in the Trenches to impart that philosophy to our clients by the way we live our lives and help them live theirs.

Monday, October 17, 2011

The Baltimore Marathon

Saturday, I ran in the Baltimore Half Marathon, and ran a personal best time.  It was a great day for a race, clear skies, and a light breeze gale force bunch of wind gusts.  I made a friend at the starting line, so I had someone to run with.  In short, it was perfect - except for my knee.  It gave a twinge or two as we started, but I wasn't worried; it had given twinges before and the pain had gone away.  That happened Saturday too - until mile 11.  At mile 11, my knee decided bending was fairly optional, and when it did bend, it hurt like the dickens.  Maybe the pain would go away, I thought, and so it did, for about 100 yards, and then it came back.  I had two choices:  I could stop running and walk to the finish line, or  I could push through and run across the line.  Neither choice was great.  If I stopped running 2.1 miles before the finish, chances were better than even that before I got to my car and returned home, my knee would cool down and seize up.  As it was my driving leg, that would present a problem.  On the other hand, if I ran through the finish, I would have a personal best time (who says I'm not competitive?), and I would probably make it home before agony set in (which it did).  Of course, who knows how much additional damage I would do to my knee by continuing.  Because you read the first sentence of this blog post, you know which choice I made. 
The first thing I did when I returned home (after popping multiple Ibuprohin and strapping on the ice packs), was research my injury.  I learned that I made a mistake, and that one mistake caused my big problem.  You see, what I found is that running was not the only leg exercise I should have been doing.  By using running as my only leg exercise, I was causing my calves and my hamstrings, and some of my glutes to become very developed, but I was exercising my quadriceps not at all.  For those of you who have no knowledge of anatomy, what that means is that I was exercising my lower leg and the back of my thighs an awful lot, and the front of my thighs not at all.  It takes the muscles of both the back and the front, the top and the bottom of the leg to hold the knee in the right position for running.  My training guaranteed that at some point, my knee was going to give out and I would be faced with the choice I had yesterday.  As I sit here, immobile on the couch, I started thinking, as I usually do, about how my marathon was like the Trenches.  Believe it or not, it is.
Before our clients even get into the Trenches, they (and probably their spouse) have ignored at least one, and probably more, things that were important to the health of their marriage.  In the back of their minds, they suspected it, but things seemed to be relatively OK, so they ignored the occasional twinge - until mile 11.  At their mile 11, the problems became impossible to ignore, and so they had a choice.  They could stop what they were doing and try to fix the problem, or they could power through.  Sometimes the first choice lands them in the Trenches; the second choice always does.  The sad part is that the demise of their marriage, like my knee, could have been prevented if they had recognized the warning signs, interpreted them and acted accordingly.
Once our clients end up in the Trenches, the divorce process itself is like my Baltimore Half Marathon.  No matter the process, a divorce is an endurance test, not a sprint.  The choice of process the client makes determines the kind of race they have and the result with which they are left.  Do they litigate as opposed to mediate or collaborate?  Do they take no prisoners or try to be conciliatory?  Do they focus on custody and forget the finances (or vice versa)?  All of those choices determine the kind of race they will have.  A Half Marathon is grueling, no matter how you run it.  Whether you run it wisely and thoughtfully determines whether you live to run again tomorrow, or not until next week, next month or never.  How a client handles their divorce determines whether the result will be acceptable to them and whether the process will leave them able to move forward or remain stuck in the anger and disappointments of the past. 

Thursday, October 13, 2011

How to Recognize Your Future Ex-Husband/Wife

One of the things we like to do here in the Trenches is to help our clients avoid becoming members of our "frequent flier" plan.  You see, here in the Trenches we really like our clients (usually), and want them to move on after their divorce without making the same mistakes that brought them to us in the first place.  It's one of the reasons we really urge our clients to get into therapy, so they can recognize what attracted them to their ex and why, and work on not doing that in the future.  We also urge them into therapy for the coaching piece of it, and we work with our clients as well to help them clarify their hopes and goals for the future and work toward achieving those goals.  Here in the Trenches, we really want our clients to be OK. In fact, it makes us sad when our clients choose to have a relationship with the same type of person over and over again.
I was intrigued to come across a book called How to Recognize Your Future Ex-Husband by Debra Weiner.  The Amazon reviews praise this book as a bible to choosing healthy relationships.  I wouldn't go that far (but I would be curious to hear what a certain friend/client has to say - you know who you are, L.M.).  What I like about this book is that it hits a lot of different topics and traits, and discusses them briefly and succinctly, using examples from the author's life.   Certainly, not all of the traits discussed are problems for everyone.  What Ms. Weiner does, however, is make the reader think, about what they're seeing, hearing, and most importantly, feeling about the person with whom they are developing a relationship.  This is a quick little book, and it may very well help the reader enter into relationships in a more thoughtful manner, and be less quick to discount the warning signs of a bad one.  I wish she hadn't limited it to husbands, as it is as applicable to men as it is to women.  Nevertheless, it gets a big "thumbs up" from us in the Trenches as suggested reading for our clients.

Wednesday, October 12, 2011

Divorce and Death

I don't know about you, but it seems that lately I know a lot of people who are either very ill or dying.  I would have said it was my age (I can say it, you can't), but it's quite a few very young people as well.  Watching my friends and family deal with serious illness and death has gotten me thinking quite a bit about how divorce is like death.  Statistics say, that next to the death of a spouse, a divorce is the most stressful event in most people's lives.  What you might not know is that the stages of grief that people go through in dealing with a death are exactly the same as those they encounter in a divorce.  I love the work of ELizabeth Kubler-Ross on the stages of grief.  First, there's shock:  "How can this be happening to me?"; "What did I do to deserve this?"  Second, there's denial:  "This just must be a stage.  They'll get over it."; "If I just ignore it, it will go away."  Third, there's anger:  "How dare they do to me!  I'll show them!"  Fourth, there's bargaining:  "I'll go to counselling if you'll just stay."  Fifth, there's depression:  "What's the use, I'm screwed anyway?" Finally, there's acceptance.  Unfortunately, in divorce as in all other types of grief, people tend to get stuck in stages and they find it too difficult, if not impossible to move on.  Grieving is not a linear process, but all stages of the process must be experienced in some way for the survivor to heal fully, and it takes different amounts of time for different people.  Grief cannot be rushed.
     If you asked us in the Trenches which stage is the worst on which to be stuck, we would say any of them except the last.  Those stuck in shock or denial will not do anything to move the process forward and actively stonewall any attempt to change the status quo.  Those stuck in anger fuel the litigation process; everything is a fight to show who's right and to punish the one who hurt them.  Those stuck in depression tend to be paired with those stuck in anger (a lethal combination for the depressed), and take on guilt and responsibility that is not theirs because they hope it will either placate the angry or assuage the guilt they feel.  The easiest stage for those of us in the Trenches is of course the last, acceptance, because our clients have worked through their emotions and are ready to do the hard work of moving on.  We don't have a lot of the latter, at least at the beginning of the representation, but it is always our hope that we do at the end.

Tuesday, October 11, 2011

Conflict of Interest

When you say "conflict of interest" to an attorney, they assume you mean that there is some factual nuance or position in the client's case that impacts another client or maybe the attorney's personal life.  Most attorneys would say that conflicts of interest arise rarely in their practices.  I would submit, however, that every time a client hires an attorney and agrees to pay a fee that is based solely on hourly rate times the billable hour, a conflict of interest is created.  In that case, conflicts of interest arise for those of us in the Trenches every day.  Why do I say that?  The basis of the hourly rate billing system is that what the attorney is selling is time.  Not knowledge, not expertise, but time.  The system was created as an internal time management tool to measure the productivity of law office personnel, and lawyers, not having been trained in business management, used this internal tool externally.  Back when all word processing was done on an IBM Selectric (for those of you who have never seen one, like our Erin, click on the link), and retyped for each client, things took a long time.  Now, we use computers and scanners, so most law firms have basic forms that they use to begin the drafting of most documents, at the very least.  If attorneys are selling time, the newest client gets a bargain and the first client pays a fortune - for the same document. The inherent conflict of interest in the billable hour system is that attorneys get paid more the longer they work, so there is no incentive to be efficient, whereas, clients want the best legal representation they can obtain at the lowest price. Sure sounds like our interests are different, doesn't it?
The funny thing is, contrary to public perception, most lawyers don't like the billable hour.  We're not fond of it (read "hate it") here in the Trenches.  What is hard is figuring out an alternative that is fair to attorneys and clients alike.  Fixed fees work for some things but not others.  Value billing? The question is whose value and how do you determine it?  An hourly rate that blends hourly and value billing? Perhaps.  The debate goes on and on.  Do any of you have an opinion?

Monday, October 10, 2011

My Dirty Little Secret

We all have them, don't we?  Some are truly delicious, and some are shameful.  My dirty little secret is "Trial Karen."  You see, I like to try cases.  My enjoyment has nothing whatsoever to do with my clients, because as you know, I believe taking a family law case to court is the worst thing for the family.  As a result, I try like the dickens to help my clients settle cases.  I actually feel I've failed if I am unable to do so.  Still, I love trying cases, questioning witnesses, making legal arguments, and generally appearing before a judge.  So it is a rare thrill for me when I have a case that has to be tried, where there is no settlement position, there's no middle road, and it just has to go before the judge.  For a trial lawyer, there's nothing quite like the adrenalin rush of beingin a courtroom, facing off against a professional adversary, matching wits, and that "aha" moment when you know you've won the case.  It's exciting and recharging, but for a collaborative, settlement minded girl like me, somewhat of a paradox.  It's even better when you win (and I did).  Now I can put away "Trial Karen's" cape and go back to being humble Karen, the collaborative practitioner.  You won't tell, will you?

Thursday, October 6, 2011

In With the Good Air; Out with the Bad

The Trenches is a very stressful place, both for us and our clients.  We've talked a lot this week about activities we can do to improve our resilience, and hence, our ability to deal with the stress.  Sometimes, the stress is not a constant companion, but episodic and situational.  We are hit with stress in the courthouse, on the street, in the lawyer's office, in the doctor's office.  We have no access to any activities that make us feel good, and we don't particularly feel like laughing.  Good news for us is that we can still work on our resilience.  The internal work of resilience is as important as the external work and can have the same physiological effects.  I practice yoga (yes, like the practice of law, it is lifetime work).  One of the great stress releasers is managing one's breath or pranayama.  Talk to your doctor before you try any of these techniques, and do not manage your breath if you may be pregnant.  These are my favorites:
1.  Breathe in deeply, first into the belly then up into the ribcage and the chest.  Then, release the breath, first from the chest, then down into the ribcage, and finish with the belly.
2.   Breathe in for 4 counts, hold the breath for 4 counts, breathe out for 4 counts, hold the breath out for 4 counts.
3.  Breathe in through your left nostril and out through your right nostril.  Then breathe in with your right nostril and out through your left.  If it helps, use you finger to block the unused nostril.
4.  Make the length of your inhale the same as your exhale.

After a few minutes of any of these techniques, or even a few minutes of visualizing yourself in your favorite place, doing your favorite activity, or eating your favorite food, you'll feel more relaxed and in a better frame of mind to deal with the stresses of life or in the Trenches.

Wednesday, October 5, 2011

Laugh a little

Quick.  Can you remember the last time you laughed?  I don't mean a little "tee-hee" now and again.  I mean a real, heartfelt belly laugh.   If you can't remember, then perhaps you should become reacquainted with that part of you.   Studies have shown that the laughter can have a relaxing effect on the body long after the giggle is over.  Laughter, like exercise endorphins, go on working to relax you for almost an hour after you stop.  Laughter increases resistance to disease, strengthens your heart, and just makes you feel better.  I thought I laughed regularly - until I was watching a Golden Girls marathon.  Don't know what is was about 'the girls" on that day, but I laughed until I cried.  Afterward, I felt better than I had in ages.  Not only that, but the joy of laughing spilled over into the next two days.  Nothing bothered me.  Considering how much stress we deal with here in the Trenches, that's saying a lot.  Go ahead, "waste" some time, do something silly and laugh.  You'll feel better, and more importantly, you'll be more able to face what life deals out.

Tuesday, October 4, 2011

20 Things

Resiliency is the ability to bounce back from change and misfortune.  It's one of those survival of the fittest tools that determine whether we survive and prosper...or not.  Resilience determines which of our clients move on after their divorce in a positive manner, or spend the rest of their lives trapped in the conflicts of the past.  Which do you want to be - the latter or the former?  
If you're still reading, you probably feel that being miserable for the rest of your life is not a pleasant proposition.  Terrific!  Let's get to work.  You read yesterday a couple of the things we do here in the Trenches to recharge.  What do you do?  When was the last time you did something just for you?  Would you, if your very life depended on it?  Take a pencil and paper and start a list of things you enjoy doing.  They don't have to be things you've done recently, just things you enjoy. You can enjoy them because they're fun, because they give you a feeling of accomplishment when you do them.  Keep writing until you have 20 items on your list.  As you think of more, add them to the list.  Have your list?  Now pick someting and do it.  Go on.  You'll feel recharged and ready to face anything life throws at you downin the Trenches.

Monday, October 3, 2011

October = Recharge

Happy October!  It is our favorite month here in the Trenches.  Not only is it my birthday month, but there is also at least one national conference for either family or collaborative law.  All in all, a month to recharge the batteries.  Some people like to do it in the summer, but I like October.  Whether you're working in the Trenches or one of our clients, taking time to recharge is important.  When you are in the middle of emotional upheaval or helping someone else deal with the turmoil of a family law matter, it's hard to see past the present conflict and remember to take care of yourself.  Nevertheless, it's important to do so, kind of like flying on an airplane.  The flight attendants always say to put on your oxygen mask before assisting others with theirs.  The reason, of course, is that you're no good to others if you don't take care of yourself first.  I know it seems a bit frivolous to take a long walk, read a novel, get a massage, or simply watch a funny movie, when things are falling apart around you.  Do it anyway.  The energy you regain by a few moments' break will help you move forward faster than if you had continued to plod forward while exhausted.