Tuesday, July 31, 2012
The day after a trial is difficult for those of us in the Trenches. When we prepare for trial, we put all of out selves into it. We focus on nothing but that client, gathering and organizing all of the documents we are going to present (sometimes thousands of pages), prepare testimony for all of the witnesses, prepare questions to cross examine the other side's witnesses, prepare our clients and witnesses for their testimony, and then we go to trial. During the days of trial, we are the ringmaster, making sure that each piece of paper that is necessary for proof is identified and admitted into evidence, that each fact and building block of our client's case is put before the judge, and that the witnesses and their testimony are presented so as to tell the story we want. In the meantime, we have to manage appearances, make sure our client doesn't say or do anything while they are not testifying but still in the courtroom that will destroy their case. In between, we worry. Most of us worry so much that we don't sleep well before and during trial, and we eat almost nothing during the days of trial. Trial is physically grueling. It takes us at least a day to recover. And they say lawyers don't care. Not so - Here in the Trenches.
Monday, July 30, 2012
Sometimes you have to try a case. Sometimes the reason to try the case has nothing to do with whether you think you can win. Sometimes, you tell a client hundreds of different times and ways that a course of action they want to pursue is a bad idea. That they are never going to get what they want from the judge. That they are deluding themselves. You can set out in detail why you think that way, what the likely result is going to be, and what risks exist to trying the case. You can tell them that although they feel that X is important, that X is not going to win their case for them because every other fact is against them. You can talk to them about it until you are blue in the face. You can send them letter upon letter. Short of actually withdrawing as counsel on the eve of trial, that's all you can do. Some of them still want to go to trial, even in the face of all of that information. They need to have a judge tell them that they cannot get what they want, otherwise they will never be convinced that their way of thinking is wrong. Sometimes it's just that reaching an agreement with their opponent will make them lose face. That's how it is sometimes, and at the end of the day, whether to settle or go to court is their decision to make, not mine. That's probably why it is infuriating to have a judge insinuate that the only reason you are moving forward on the trial of a case like that is because you have no client control. Really? Clients are not like some radio controlled car that goes where you tell it - every time. They are real people whose emotions and world view don't always let them do what is rational and objectively reasonable. If clients always did what we told them, we would rarely lose a case, the children would always have both parents fully present in their lives, people would do what's fair, and elephants would fly. Sometimes all you can do is make sure the client is fully informed and then try the case, and it has nothing whatsoever to do with client control. Here in the Trenches.
Friday, July 27, 2012
Thursday, July 26, 2012
Lies. They are the bane of our existence here in the Trenches. There are so many different types of lies: the ones of commission and omission, the inadvertent and the purposeful, the little white ones and the big black ones. Most people lie for gain, and we can interpret gain many different ways. Sometimes gain is financial, but most times it's emotional. No matter the type or the reason, a lie is a lie, and it's a problem for us here in the Trenches. Our rules of ethics prohibit us from either knowingly allowing a client to lie to the court, or failing to correct a material misrepresentation of fact that we know or reasonably believe has occurred on the witness stand. There's a fine line between what is OK and what is not, between what is a violation of our professional ethics and what is not. It all goes back to my old saying that clients come and go, but our professional reputations and our duty to uphold the integrity of the legal process are forever. It's one thing if a client lies and we don't know the truth. It is quite another if we do. Here in the Trenches, if we know what the client testifies is a lie, we have to take remedial steps. We have to counsel the client to tell the truth, and barring that, we have an affirmative duty to inform the court, and probably to withdraw from representation. (Note that the duty is somewhat different in a criminal case, and I'm not discussing that here). It's an awful position for both the attorney and the client. Does a lie on the witness stand create a tension for the attorney by having to choose between attorney-client privilege (in other words "you") and candor toward the court? Absolutely, but candor toward the court wins. Don't force us to make that choice. Here in the Trenches.
Wednesday, July 25, 2012
I really like strawberries and blueberries. They're not the same, and I don't like them the same. Kind of like my children. I love them both. They're very different people. I love different things about them, and we do different things together. There are things I really like about both of them; they're just different things. If you asked me, I couldn't tell you that I love one more or less than the other. I just can't compare them in any real and rational way. Yes, this has plenty to do with the Trenches, but probably not in the way you think. Here in the Trenches, our clients are very often asked to compare and choose between two very dissimilar things. We ask then to decide what they want more, the house (a stable and familiar residence) or the retirement (stability in old age). Do they want alimony (periodic income) or more property (an investment that can generate or supplement income)? More child support or control over legal decisions? More time with the children for less support? These are all really tough decisions, made all the more difficult because the things that have to be weighed aren't at all alike. Yet, that's what our clients have to do, and we help them weigh the options, assess the pros and cons, and make a decision. It's kind of asking me to choose which of my children I love more. Here in the Trenches.
Monday, July 23, 2012
I am an extroverted decision maker. That means that when I need to make a decision, I talk about it - to everyone. I think out loud, I ruminate, I ask opinions, I obsess. If it's a truly difficult decision, my friends stop answering my calls after a while, because I can't let it go. Just thinking about it isn't enough (if it were, that would make me an introverted decision maker). Most of my friends and loved ones know that most of the time, they can continue to play Angry Birds while I talk, because I really need an ear more than the advice (although I love the advice too, because my friends and family are awesome and usually think of something I haven't). I also have enough strength of conviction or confidence in the professionals with whom I'm involved, that I know what advice works for me and what doesn't. Usually, but not always, I am also not in an emotional crisis. The same can't be said of many of our clients here in the Trenches. Even if they are usually the most ordered of thinkers, when clients are in the Trenches, their thoughts are in emotional disarray. Most of them have never been in the Trenches before, and the decisions they have to make are unlike any they have ever made before. The stress is enough to turn any introverted thinker into an extroverted one. Our clients don't know what to do, so they ask everyone for advice. Everyone is happy to give it. It seems like the entire world has an opinion about our client's divorce; everyone knows someone who has dealt with the same issues, and our lucky clients ask them for their opinions. It's natural, and it's normal. What happens next is the interesting (and sometimes unpleasant) part about being here in the Trenches. Clients who are emotionally strong and who have confidence in the professionals who are helping them, listen to their friends and family, think about it, and run it by their professionals. Then (and here's the crucial part) after that discussion, they listen to the advice of their professionals. They don't believe their neighbor whose sister got a better settlement, or the contracts attorney who they met at the grocery store; but rather, they discuss what all these folks told them with their own attorney, and ultimately, take their advice. Either that, or they get another attorney. Those of us here in the Trenches won't take offense if they do. But if they don't, they need to stop questioning every decision made here in the Trenches, every piece of strategy. They need to stop telling us how to try the case. Yes, it's their lives, and the ultimate goal of the representation is their decision to make, in consultation with the professionals. Once that decision is made, the logistics of implementing it is the professionals' realm. The clients and the professionals will be happier if they leave it there- here in the Trenches.
Friday, July 20, 2012
Thursday, July 19, 2012
Every month, I work as a domestic relations facilitator for our local circuit court. What that means it that I go to the courthouse when the family division holds its scheduling hearings, and the domestic relations masters send cases with issues they think can be settled fairly quickly up to me to mediate. That way, the case gets off the court's docket, which is already overcrowded, and the parties to the case don't have to come back to court. When it works, it's a win-win. I'm not the only one who facilitates: there are about thirty or so of us family law attorneys who do it on a regular basis. We don't do it for the money - the court pays us very little per case, and if you polled us, most of us would say we'd do it for nothing. We facilitate for lots of reasons, some altruistic and some not. We do it to hone our mediation skills, we do it to help people, we do it to feel good about solving a problem (or problems), and we do it to keep our faces known at the courthouse. We also deal with lots of interesting situations. Sometimes, we show up to facilitate and have no customers. Sometimes, we have enough cases to keep us busy all day. We've had to throw our bodies between angry litigants (no mean feat for someone as tiny as I), and call the sheriffs. We've also gotten to help people who are feeling really shamed name the reason, receive compassion and achieve catharsis. It's amazing work and brings with it a tremendous sense of accomplishment. It's a bonus I enjoy - here in the Trenches.
Wednesday, July 18, 2012
Back to last Friday (I told you it was a full day!)....one of my good friends here in the Trenches had a heart "incident." Really scary. After a lovely overnight hospital stay with lots of tests, my friend went home with a diagnosis of idiopathic cardiomyopathy. In plain English, that's doctor speak for "We know something went on with your heart, but for the life of us, we can't figure out why." What does that mean for my friend? It means that even though the doctors don't know what caused the problem and they sent my friend home, there's still a problem on which they need to keep an eye. What the heck does this have to do with the Trenches? Plenty, as it so happens. I can't tell you the number of clients who walk into my office who say that their spouse came home, and "out of the blue" told them they wanted a divorce. They are floored, and can't figure out why their marriage is ending. To them, it's idiopathic, and for some, it will remain that way. Does that make it any less real? Heavens no. Unfortunately, even if the client doesn't understand why their spouse wants the divorce, they still have to deal with it. Like with my friend, it's harder to treat something when you don't know the cause, but you still can't ignore it. Luckily for us in the Trenches, unlike my friend's doctors, even when we don't know why a marriage ends, we can still help our clients handle the emotions and the custody and financial issues that come with it. It's a whole lot harder when our clients don't understand the reason for the divorce, but part of our job is helping them come to terms with the realities of their spouse's decision and move forward with their lives. Here in the Trenches.
Tuesday, July 17, 2012
After I made the appointment with the radiologist, I showed up for my appointment. First, the person behind the counter greeted me (don't knock it, I've been to lots of doctor's offices where the first words out of the receptionist's mouth were not "hello," but "insurance card"). Then, they took me on time. That's right, on time. For all of my tests. The waiting room was large, but fairly empty - because they took people on time. To me, it showed respect for me and for my time. I appreciated that. Plus, everyone was extremely professional and pleasant. Some of the tests they did a couple of times because they weren't 100% happy with the image. I don't know my test results yet, but I know that when I get them, they'll be accurate. That feeling isn't because I know anything at all about radiology, because I don't, but because everyone was so professional with me that I know it translates to my tests as well. Just to be clear, I have worked with this particular doctor before, so I really do know the quality of her work, but even if I didn't, everyone in the practice inspired confidence. That's the point, isn't it? We go to professionals because they have the knowledge and the training that we need and don't have. We have to trust that they know what they're doing, so that we can trust that we're in good hands and can concentrate on the things we need and do understand. As you can see from my trip to the radiologist, building that trust starts the minute we walk in the door. It's a package deal. Here in the Trenches, we build trust from the first phone call until the final papers are signed. We want our clients to feel comfortable, to trust that we know what we're doing (which, of course, we do), so that they know the things they don't really understand are being taken care of, and they can focus on moving forward with their lives. Again, it's what we do - here in the Trenches.
Monday, July 16, 2012
The end of last week brought so many things that reminded me of the Trenches. Lucky you, we get to talk about them this week. Friday, I got to spend the entire day having medical tests (don't worry, nothing terribly wrong, just scheduled some routine stuff along with diagnostics on that darn foot). There were so many things about that day of tests that remind me of the Trenches that I don't know where to start. Let's start first on the interpersonal level. I hate having medical tests. They cause me a lot of stress, even though I'm pretty sure they'll show nothing. I procrastinate about calling for an appointment, and I'm not usually in the best frame of mind when I finally work up the courage to make the call. Sure sounds like how our clients feel here in the Trenches when they find they need our services. They hold off making that call because they're scared - scared of facing the end of their relationship, scared of the unknown of life in the Trenches, scared of their future after they leave the Trenches. They procrastinate and worry about making that call to us, and when they do, they're a wreck; they don't know what to say, what to ask, how to choose the right attorney. That's why what happens when they finally place the call is so important.
If we go back to my call to the radiologist's office, here's what happened. I called, talked to a lovely woman who chatted with me about how I hate getting tests, that I had a number of them to do, and I was dreading it. She commiserated with me, and in the course of the conversation also found out that I had another test to schedule. Turns out they did that one too, so I scheduled it, and on the same day as the other tests. Wow. I could get it all done at once. I was happy, even though I had to have the tests. I like to think a client's first call to the Trenches goes the same way. They usually get Chrystal on the phone. She's fabulous, and can talk to anyone about anything. She chats with the caller, listens to their story, shares information, and makes them feel, if not comfortable about making an appointment in the Trenches, at least secure that they're coming to a place where people care what happens to them. They feel safe and cared for - the Trenches version of happy. That's our aim. Here in the Trenches.
Friday, July 13, 2012
Thursday, July 12, 2012
Remember that yesterday we talked about the most important people in the courthouse? Today, we'll talk about the most important people in a law office, or at least in my law office (and in the offices of most folks here in the Trenches who I respect and admire). If you learned anything yesterday, you know that I am not one of those people. So why do so many clients not know that? I cannot tell you the number of clients who have called the office and talked to someone other than me, and been REALLY rude and nasty. One client even made them cry. Yes, I said "cry." That same person was never anything other than nice to me. I fired that client. The people who work for and with me are very important to me. They, like the folks who work at the courthouse, can't talk back to the clients, can't tell the clients off when they're mean, and can't defend themselves when clients are unnecessarily mean. The Trenches is a customer service business, and the folks who work for the lawyers are the customer service representatives, and the clients are the customers. They have to take it. They don't have to take it in silence; and they don't - they tell me. I own the store. I decide what clients I take, and what clients I keep. I may take you as a client, but if you are rude, mean, or gratuitously nasty to the people I hire, I won't keep you. You can count on it.
Wednesday, July 11, 2012
A little lesson in etiquette. When you go to the courthouse, a lot of people work there. Most of them don't wear a black robe. Following me so far? Now a quick quiz. Who are more important; the people in the black robes or the other people who work there? If you said the people in the black robes, you would not only be wrong, you would be making a big mistake. The most important people at a courthouse are not the judges, but all the other people who work there. Those of us here in the Trenches know that (and if we don't, we're probably not people you want to represent you). Judges and those of us in the Trenches know three things: first, the people who do all the work that makes the courthouse run smoothly and well are not the judges. Judges make the decisions, but the people who manage the mountains of paperwork, make sure the exhibits are marked and safeguarded, record the proceedings, file the papers, type the opinions, manage the schedule....(you get the picture) are everyone else. Second, people who are not nice to the people who do all the work but are nice to those who make the decisions are generally not nice people. Third, the people who do all the work talk to the people who make the decisions. These three things mean a lot to you, and if they don't, they should. The take away is that if you want things to go smoothly for you at the courthouse, you need to be nice to the people who don't matter. Because they do.
Tuesday, July 10, 2012
Registration opened today for the Disney Princess Half Marathon....and I'm injured. Yes, the toe and knee still hurt - a lot. I have an appointment with the orthopedist tomorrow. Even though I'll probably have an answer within 24 hours or so about whether aiming to run it this year is even a possibility, it was incredibly difficult not to just register today. I mean, I've been waiting for registration to open for months. I have my costume planned. I discussed it with Office T (he picked the princess). I bought the fabric. I've co-opted friends to train (maybe even had Disney send them a reminder email). I can't register yet, and it's killing me. I have to wait for the doctor. As my anxiety rose today about whether all kazillion slots in the race would somehow fill up in 24 hours, I thought about......the Trenches. I know: what a surprise. I have a lot of clients who are in exactly my position with the Princess Half. They decided to divorce. They talked about it with their friends and family. They dealt with it with their therapist (please let them have one!). They told their spouse. They told their children. And then - nothing. They can't find a new, permanent home because they haven't worked out the finances of being separated and divorced. They can't date seriously because they're still married. They can't move to the new rhythm of their lives because it hasn't established itself yet, and sounds more like my singing in the shower (not a pretty sound) than Carrie Underwood. They're ready to go, but their trip depends on other things that haven't happened yet. All of their uncertainty is very unsettling. It makes them impatient and anxious and stressed, even more than having to resolve the issues themselves. It's hard to slow down when you're ready to go fast. Sometimes you have to. We're here to help, to normalize the feelings, provide a time table, help focus on solutions, take away the stress. It's what we do - here in the Trenches.
Friday, July 6, 2012
Wednesday, July 4, 2012
Tuesday, July 3, 2012
What is more frightening than having your family fall apart? Leaving what happens next entirely in the hands of a third person. Why would anyone do that? Well, actually, it turns out that lots of people do just that when they hire a lawyer. They walk into the lawyer's office, pour the mess that is their life into their laps, ask them to fix it, and most importantly, trust that it will turn out the way they want it. Then, they brush off their hands and move on, checking in from time to time with the lawyer, signing the papers they're told to sign and showing up when they're told. They ask few questions.....until they get the bills.....until the judge doesn't rule their way....until it's too late. Then, they complain that their lawyer didn't keep them informed, didn't give them enough choices, didn't keep them informed of costs (even when they received monthly statements)....You get the picture. What's interesting is that these are the same people who take no responsibility for the breakup of their family in the first place, probably put little effort into making the family a successful entity in the first place, and blame everyone else when things go wrong. (Disclaimer - I am in no way excusing the behavior of those lawyers who do not communicate with clients, fail to treat them as intelligent human beings, and don't send accurate and timely bills) These clients are simply playing out the dynamic of their marriage with their professional team. We see this all the time here in the Trenches, and it is incredibly counter-productive. Sometimes we catch it, and sometimes we don't. Our best chance of recognizing the replay of the marital dynamic occurs in the collaborative process, when the professionals are working together to help the clients disentangle and change their destructive ways of dealing with each other, and also to make sure the professionals themselves aren't sucked into the dynamic. Not surprising, it's in litigation, with its "us against them" culture, that these clients can spin out of control and take us with them if we're not careful, because we have no check or balance on the dynamic, just the other side encouraging it. That's why, no matter the case, no matter what the client's stated preference, conscientious lawyers will explain EVERYTHING, multiple times, engage the client in strategy sessions, encourage them to think deeply about their desired objectives and the way to attain them, and to understand the financial cost as well as the emotional of their plan of action. It's just one more way we help clients move on with their lives productively - here in the Trenches.
Monday, July 2, 2012
When I was growing up, every few weeks we would head over to the mall and have lunch at Woolworth's. (For those of you too young to remember Woolworth's, it was a five and dime store, that had a lunch counter and booths.) One of the best things about lunch at Woolworth's was sitting in the booths by the window. We would eat our patty melts while watching the people walk by. I don't know about you, but I love to people watch. Some folks are dressed in such a way that you wonder if they own a mirror, much less use it prior to leaving home. Some folks pick their noses, fix wedgies or slap their children. It was all fascinating, some of it not in a particularly good way. Now, I've grown up, and I people watch professionally, and not just because it's interesting (it is). Reading body language tells me how close we are to settlement, whether I'm hitting someone's hot button, and what effect I and my client are having on the judge. We all know appearances are important, that first impressions count. I tell clients all the time that the judge is ALWAYS watching them when they are in the courthouse, even when it doesn't seem like it. Why is it that so many of them don't listen? A shoving match with your spouse in the courtroom, wearing dirty, holy jeans, sighing and rolling your eyes - the judge sees it all and interprets it, usually not in a positive way. Your venting your spleen by engaging in a juvenile display, or your not showing the court and its process proper respect all have an impact, and it's not good. Please, behave like your parents hopefully taught you, and your Sunday school teacher expected - Here in the Trenches.