Wednesday, May 30, 2012
to call if you aren't going to show up for your appointment? I understand you were calling around to different law firms, desperate for an appointment. You made one with me for two days after you called. I guess you kept on calling law firms until you could get an even earlier appointment. That's OK, I understand. What I don't understand is why you didn't call to cancel your appointment with me. I don't understand why, when we called to find out why you weren't at your appointment, you didn't call back to say you weren't coming and forgot to cancel. It's just rude. I planned around your appointment and put off other client's work so I could be ready for you. I couldn't start anything new because I didn't know when you might appear. I wasted a half hour doing nothing but wait for you. You turned my day upside down because you were too thoughtless to call and cancel. Thanks. Oh, and by the way, don't call to reschedule because we won't. Here in the Trenches.
Tuesday, May 29, 2012
Is there a value to using a local lawyer? That depends. Is there any such thing as a home field/hometown advantage? That depends. A good lawyer is a good lawyer, no matter where they practice, no matter what court they appear before. Likewise, a bad lawyer is a bad lawyer, and no amount of home field or hometown advantage will make them good. What we're talking about is whether there is an advantage to having a good lawyer who regularly practices in front of a particular court, as opposed to a good lawyer who rarely if ever practices there. The answer is - usually. A local lawyer knows the local rules of the court (even though those don't exist officially, they do in reality). They know the personalities of the judges and court personnel. They know what behavior is rewarded and what is frowned upon. They are known to respect that court and they are, in turn, respected by the court, in short, they have street cred. Street cred is not determined by the physical address of the lawyer's office, but by what courts they appear in regularly. All things being equal, wouldn't you rather have a lawyer who knows their way around the court which will determine your future?
Friday, May 25, 2012
Wednesday, May 23, 2012
In every relationship, the participants develop a pattern of interaction. Sometimes that pattern of interaction is positive and healthy (those folks don’t often show up in the Trenches) and sometimes, that pattern is dysfunctional and unhealthy. The latter folks are often in the Trenches. In the collaborative process, the professionals work far more closely with the clients and more in partnership than in other forms of dispute resolution. What happens in almost every case is that the clients’ pattern of interaction affects the professional team, and they begin to engage with each other like the clients themselves. That’s not a good thing. Sometimes, the team is aware of what’s happening and takes steps to counteract the effect; at other times, what’s happening isn’t apparent until a long way down the road. You’d think it wouldn’t happen with seasoned professionals, but it does. It’s kind of like going into a school dance and beginning to dance the waltz. At first, everyone just looks at you funny. Then, the beat of the waltz begins to work its way into everyone else’s dancing. Soon, everyone is dancing on the three-count of the waltz, even if the music is rock and roll. One couple throws everyone else off and marches them to their beat. It completely changes the character of the event and diverts the participants from the theme of the dance. In that situation, it takes a lot of concentration not to dance the waltz, as the dissonance makes people uncomfortable, and things flow more smoothly if everyone’s dancing the same. In the collaborative practice, it’s the job of the professionals to keep everyone moving in concert with the music of the dance, and not with the dissonance. It’s a hard job, but not doing it means the couple continues to dance in the same circles that caused their problems in the first place, as opposed to breaking the pattern and resolving the issues. Resisting the waltz means the case succeeds; succumbing spells failure. Helping the clients change the dance is a large part of what makes collaborative practice different from all other forms of dispute resolution. So we Cha Cha on - here in the Trenches.
Tuesday, May 22, 2012
I do a fair amount of custody mediation for the court in family cases, and over the last three months, I have had three very different cases. In all of them, both parents loved their children and wanted to participate meaningfully in their lives. In one of them, the parents had sufficient money and education, and shared similar backgrounds and values. In another, the parents had no money, no education, and dissimilar values and backgrounds. In the third, the parents had sufficient money and education, somewhat similar backgrounds, but a huge difference in values that was brought to light by a major deception of a material fact by one of the parents. Two cases did not settle, and one did. Can you guess which one settled? Did you guess the third one? I’m thinking not. Why did the third one settle, against all odds, while the other two did not? I’ve thought long and hard about this, and here is my conclusion. The first two cases were about the parents, and not the children. The parents in both of those cases were ostensibly fighting over one overnight every two weeks (you heard me - 26 overnights a year). What they were really fighting over was which parent was primary, which parent was the better parent, and which parent had more time than the other (which of course would prove which of them was better). The long term effect of their continued dispute on their children was lost on them, as well as the minuscule harmful effect of that extra overnight, because they were so raw and emotional and focused on their own needs. The third set of parents had moved past the raw emotion, and the deceived parent had put the betrayal in its proper place in relation to the children. They both had thought long and hard about what the children’s future would look like, both concerning the access schedule itself and the effect of their relationship and behaviors on the children. They thought about all the issues that could affect the children, and researched and discussed them. They considered each of their roles in the children’s lives and respected those roles. They understood that each of their parenting changed post separation in many ways that were positive to the children. In short, the third mediation was all about the children, and not about the parents. In that mediation, we settled custody and discussed really specific details in the custodial arrangement in under two hours; in the other two, we didn’t even settle basic custody in almost six hours, and the first two sets of parents started out with closer positions than the third. It’s all in a day’s work - here in the Trenches.
Monday, May 21, 2012
Friday, May 18, 2012
Thursday, May 17, 2012
Sometimes, I think I talk to hear myself speak (Some of you may think that occurs more often than not, but we'll stick with "sometimes"). When I tell a client that their spouse will forever follow them to find dirt to change custody so they need to keep their noses absolutely clean, why don't they listen? When I tell them they need to change their behavior in a specific way for a significant period before we go to trial, why don't they? When I tell them a certain line of argument will blow up in their faces, why do they insist I make it anyway? I know, these are all rhetorical questions, but sometimes I just need to ask. Most of us here in the Trenches have toiled here for a long time. We know what impresses judges, evaluators, and other decision makers, and what just ticks them off. That's because we have tried multiple cases in front of those folks, or have a colleague who has done so. We know how certain facts and arguments will look to a third party. Clients pay us to put forth their best argument, to help them convince the trier of fact of the ultimate justice of their cause. We're able to do that not only because of our knowledge of the law, but also our knowledge of the courts, and our ability to view the facts in a rational manner, unclouded by emotion. Some clients pay us a lot of money to do just that, so it's hard to understand why they don't take the advice for which they pay. It never turns out well for them when they don't, and yet, time and time again, we go to trial only to have the client tell us when it's over that should have taken our advice and done what we told them to do to prepare. Wouldn't it have been easier to simply heed it from the beginning/ Yes, that's another rhetorical question, but one that needs asking - here in the Trenches.
Tuesday, May 15, 2012
There's a little known secret here in the Trenches, and because I like all of you, I'll let you in on it. We talk - to each other. That's right, the Trenches is kind of like a small town. Those of us who toil in it on a regular, exclusive basis, all know each other. We know who practices a lot in one county or another. We know who tends to represent what kinds of clients. We know who tries a lot of cases, and who tends to settle them. We know who does military cases, who does a lot of work in assisted reproductive technology, and who does juvenile cases. When one of us has a case or a client with which we are unfamiliar, we know who to call. We know who will share what they know with us and we call them. That happened today. A colleague here has a case in a county in which I practice a lot and she has rarely practiced; I have a case with a new judge before whom my colleague has appeared. So we shared information to help us both help our clients. Sometimes we're on the same side; and sometimes we are on opposite sides. All the time, we want to help our clients, and by sharing information, we are better able to do that. Here in the Trenches.
Monday, May 14, 2012
Why don't clients want to talk settlement? It varies with the client, but they generally fall into four distinct categories:
1. The client who thinks he/she is right, and the judge will rule with him/her because of it.
2. The client who is too angry to want to compromise.
3. The client who needs someone to hear them.
4. The client who has nothing to lose by trying the case.
Client #3 wants to tell the story, and if the judge rules with him/her, that's great but not entirely necessary. Sometimes these folks do this because of reason #1, but that's not about whom we're speaking. Client #3 feels that no one has let them tell their story in a way that permits it to be heard. Client #3 has either been through the system a couple of times and never felt like they've had their pont of view expressed, or has been dismissed so many times during their lives that for once they want to be heard. What they need is for their case and their story to be presented as completely as possible. Of the four types of clients, they are the easiest for those of us here in the Trenches. These folks understand the risks and benefits of trying their case, and their ultimate goal is not winning, but being heard. So long as the attorney presents a full and complete case, the client is satisfied. Winning is gravy.
Client #4 is the client for whom all of the facts are seemingly against him/her. For that client, the settlement the other side would offer is not going to be appreciably better than what the court might do, so why not take a chance that the court would give them something better than any settlement? For them, there is little to no down side to going to trial. These folks might offer a settlement, but to them, what's the point?
Clients #1 and 2 are nightmares for those of us here in the Trenches. They are too blinded by emotion to think rationally. They are incapable of rationally analyzing the elements of their case and weighing the risks and benefits of proceeding to trial as opposed to reaching a mutually acceptable compromise. They have unrealistic expectations of what the court can and cannot do, and what a given judge may or may not do. They expect their attorney to go into court with guns blazing, and take no prisoners, even if to proceed in that manner is counterproductive to their case. Anything less than a complete win in court is a loss to these folks. Not only that, but win or lose, they are never happy with their attorney. If they win, it's how it should have been because the cause was just. If they lose, it's because the attorney was incompetent. Sometimes these clients reach trial because their attorney didn't do the hard work of bringing them back from the emotional precipice, calming them down (usually by strongly recommending some therapy), and educating them on the legal system; and sometimes, there is no attorney who could deter them from their course. Luckily, these last folks are few and far between for those of us Here in the Trenches.
Friday, May 11, 2012
Wednesday, May 9, 2012
If I simply ignore my allergies, they will go away. Right? Wrong! If I simply admit I'm an alcoholic, the problems that flow from that state will disappear. Right? Wrong! If I simply have custody of my children, all of their problems will disappear. Right? Wrong! If I simply hold my breath, I will not turn blue and pass out. Right? Wrong! If I blame everyone else for all my problems, no one will ever hold me accountable for anything. Right? Wrong! Yes, today has been a day of magical thinking (although if you have a sure fire cure for seasonal allergies, I'm listening). Wishing doesn't make it so, folks, no matter how much you hope. Your children's problems didn't appear overnight, and you probably have some role to play in their creation, whether it's because you caused them or did nothing while the other parent caused them. Admitting you have a problem is a first step, but only a first step; the rest of the hard work comes after the initial realization and takes A LOT of time and effort to see results. We all have problems and none of us is blameless in either their creation or exacerbation. Please take a look in the mirror and see what is there, and not just what you want to see. We here in the Trenches will thank you.
Tuesday, May 8, 2012
We visited with our Erin the other day after work. She really loves her new job with the courtroom clerks. It's also helped her gain a bit of perspective. The perspective is that there is a reason most judges hate family law; and that reason is that many people fight like animals over things that really don't matter. Look at it from their point of view. In criminal cases, we're talking about someone's freedom. In most juvenile cases, we're talking about the right to have a life with the basic necessities. Foreclosures, we're talking about the right to have a home. Medical malpractice, well, you get the picture. In family law, by contrast, what the courts see is people fighting about hurt feelings instead of real issues. What it came down to for Erin is that is that a lot of family law cases should never see the courtroom. Both the lawyers and their clients in the trenches get caught up in the emotion, in the need for vindication, and lose sight of what they really need to move forward, what the court can and cannot do, and how to present the case, emotions and all, in a concise way that helps the judge make a decision. Instead, the marital drama gets played out in the courtroom and the judges have to referee. Most judges did not practice family law in their lives before the judiciary, so they are uncomfortable wading through all the emotions and they are impatient, and frankly resentful, that they have to be involved when people seem intent on venting their spleens instead of resolving the dispute and moving on with their lives. They hate when people are disrespectful to each other and to the court. They hate when the feelings and not the facts, are center stage, because that's not the purpose of a trial and the court. The ones who judges resent most are not the litigants, but their lawyers, because they should know better and because they fail to counsel their clients accordingly. What judges want are cases that aren't tried unless they need to be, and presented to the court in a cogent, organized manner, with emotions, yes, but not unbridled ones. It's what I hope we do - here in the Trenches.
Monday, May 7, 2012
Sometimes all you need is a change of scenery. I talked to Mom today. She told me that they went to the park for a picnic. Did my Dad eat more at this picnic? No. Did my Dad talk more at this picnic? Sadly, the answer again is no. Yet, my Mom feels better and in a more positive frame of mind. Same stuff, different place is what did it for her. I've been feeling a bit iffy in the office. It's kind of quiet (OK, really quiet), my allergies are bothering me, and I just can't seem to get started. After I talked to Mom, I had a meeting out of the office. When it was over, I realized that I had no clients coming into the office itself, and that what I had to do could be done as easily at home as in the office. I went home, and with the very able help of the puppies (sitting around looking cute, of course), I got more done than at home than I would have in the office. It's the same when Chrystal comes in to the office. I get far more done because it's a change for the better from the regular routine. Life in the Trenches, for attorneys and clients alike, is stressful, and that stress can affect all of our moods negatively. A change of scenery, even for a short period of time can do wonders, just like a short break can save you time in the long run. Here in the Trenches.
Friday, May 4, 2012
Thursday, May 3, 2012
Today is the anniversary of the death of the husband of a friend of ours here in the Trenches. This friend is also the daughter of a good friend of ours. Both of these folks labor in the Trenches alongside us (and sometimes against us). They're good people and they are good friends to us. We suffered with them during the husband's long illness, and grieve with them and for them as they deal with his loss. They say that divorce is like a death. It's not. My friend didn't choose to have her husband leave her, nor did she choose to leave him. That choice was taken from them. They will not have a chance for a "do over": no opportunity to be better co-parents apart than together. My friend would give almost anything to have her husband back; their children would love to have their daddy again. I watch them and I think of our clients here in the Trenches, many of whom would be thrilled if the other parent walked out of their lives forever. When it comes down to it, would they really? Just because they no longer want to be married to the other parent of their children, and they would so much rather not have to deal with that parent on a continuing basis, would they truly want their children not to experience their other parent while growing up, not to see firsthand where they got their love of science, their baseball throwing arm, their temper? I think not, but if they do, maybe they should talk to my friend.
Wednesday, May 2, 2012
As you would have to be a complete newbie to this Blog not to know, I run. What you may not know, is that I am a little like the Princess and the Pea. My shoes have to be just right, or I get injured. I have gone to many running stores and been fitted for running shoes, but no one found the right fit for me until I met Joe at Potomac Running in Rockville. Joe listened to my description of how I run, and my history with running shoes. He watched me run on the treadmill, and then he recommended my shoes. They fit well, and most importantly, didn't cause injuries. Now, it's time to get another pair of shoes. I could get the same shoes more cheaply online, but I'm going back to Joe at Potomac Running. Why? Quite simply, because there is no Joe online. I think the service he gives me is worth the extra I pay for the shoes, and so I go to see Joe. (Besides, there will probably come a time when the shoe company stops making the model of shoes I bought. If I and every other one of Joe's customers bought their second pair of shoes online, when the time comes to purchase a new style of shoe, Joe might not be there for me.) It's the same with attorneys here in the Trenches. There are online services that provide legal forms and self-help advice. Some attorneys are cheaper than others, and some are more expensive. Some of the cheap ones are better than the more expensive. Some of the expensive ones are worth every penny. Some clients simply need the online forms. It all depends on the client. What's important is the level of service and advice the attorney provides and whether it fits the client's particular needs. That's far more critical than the cost. Find your Joe and stick with him (or her) - Here in the Trenches.
Tuesday, May 1, 2012
I have a confession to make. I am not the world's best housekeeper. I don't mean my house isn't clean (it is). I simply hate cleaning it. So, what do I do? What any normal person does -- I put it off. Sure, I know that if I cleaned bathrooms on Monday, dusted on Tuesday....., cleaning my house would take me less than a half an hour a day. I don't do that, however. I save it all up for Saturday and Sunday. Would I enjoy my weekends more if I cleaned my house over the course of the work week? Maybe, but I doubt it. All that would happen is that I would dread the week nights after working hard all week, and I would do an incomplete job because I would resent it, and my house would end up a mess (I've tried; I know that's the result). After all, it only takes me a few hours on Saturday to do it correctly and completely. That's me, however. I approach all my tasks that way. I start work and I don't stop until I'm done. Not everyone is like me, however. Some people do their housework a little bit at a time. The important thing is to recognize how you are and work with it, not against it. Here in the Trenches, discovery is like housework. It has to be done, it has to get done by a time certain, and it has to be done comprehensively and completely, or get done again until it's right. Yes, it's that important to resolving a case. Attorneys need to have all the available information to assess their clients' cases and advise them properly in order to resolve their case. We need our clients to be thorough in their discovery responses so we have the information we need to settle their case. Each of our clients approaches discovery differently. Some people do a few questions a night; others have to do it all at once. When clients try to work against their nature, discovery doesn't get done, the responses aren't complete and documents are missing. Here in the Trenches, we don't much care how it gets done, just that it's finished, thoroughly and completely. If a client can give us the more complete responses by doing a few a night, great. If they have to devote an entire weekend to getting it done, that's fine too. Whatever works to get the job done is what we want. Work with your nature and you won't have to redo it (which will take you even more time), and your attorney will have the information necessary to resolve your case. Here in the Trenches.