Thursday, December 19, 2013

It's Not Just One Dog; It's a Pack

I was served with a subpoena today.  It seems the opposing counsel in a case in which I was involved wants me to testify against my former client.  Really?  Are you that desperate?  I guess the answer is "yes."  There are numerous reasons why that is not OK.  We can start with attorney-client privilege, the confidentiality of the settlement process and follow it all up with the Rules of Professional Conduct, all of which say I shouldn't have to testify.  The other attorney doesn't care.  Winning for their client is everything, and I guess the end justifies the means.  I followed that by a case in which the other attorney did next to nothing throughout the entire representation, including drafting documents he agreed to do so that I had to.  Did he apologize?  Did he seem the least bit repentant?  Nope.   The not so surprising thing is that their clients are just like them.  I wish I could say this type of behavior is confined to lawyers and clients, but I can't.  It's wrestling season, and as mom of the coach, I attend all the matches.  The first match of the season, our boys were doing very well.  Then two wrestlers from the other team faked injuries so they could get a rest and their second wind during their match and a third purposefully untied his shoelace for the same reason (if you've never seen a shoelace on a wrestling shoe, trust me that it can take a few minutes to get it trussed up right.).  The rests turned the tide on the matches.  It was obvious that their behavior was sanctioned by the coach. We know what kind of attorneys and clients they will make, don't we?   Here in the Trenches.

Tuesday, December 17, 2013

Cookies Again

I so apologize for my absence over the last few weeks.  There have been two contributing factors:  Christmas cookie season, and more computer problems.  Writing my blog on an iPad is doable, but not easy.  Christmas cookies take every bit of my "free" time over a two week period.  The computer was fixed today, and the last of the cookies were delivered, so I'm back.  Thanks for your patience.

Today was our second favorite day here in the Trenches - the delivery of Christmas cookies in Frederick County.   In a lot of ways, the welcome is even greater and warmer there.  It's a smaller court, so I know all of the judges a lot better than in Montgomery.  The offices of courthouse personnel are smaller as well, so I know lots of those folks as well.  They know me....and my cookies.  In fact, when I would be making my deliveries and everyone's favorite cookies were the topic of conversation yesterday.  I know because everyone told me so.  We need happy days in the Trenches, especially at this time of year when tensions run high in families with custody issues.  So do the people at the courthouse.  Happy holidays - Here in the Trenches.

Monday, December 9, 2013

One of Our Two Favorite Days

Today was one of my two favorite days of the work year.  It was the day I deliver cookies to one of the two courthouses in which I appear most often.  It is the one time of the year I can count on people being happy to see me.  In fact, they really look forward to it.  More than that, however, it's an opportunity to catch up with people I don't see all that often because I settle most of my cases, and to chat with those people I only see in a formalized setting.  Because of all that, it takes hours to deliver cookies.  It's not just me.  I ran into a colleague today who makes English toffee (known around the courthouse a "crack" because it's so addictive).  She was also delivering her wares, and I noticed that it took her about the same amount of time in each chambers as me.  I also love this day because I deliver cookies to the courtroom clerks, the clerk's office and a number of other behind the scenes departments.  These folks make the courthouse work (and when it doesn't work, it's usually because of problems in these departments.  They don't get paid a lot.  They don't get a lot of credit when things go right.  They have to deal with a lot of unreasonable people all day long.  They are beyond happy when people recognize the hard work they do and remember them at holiday time.  Our little Erin is now part of their ranks, so we know how wonderful these folks can be.  Oh, and did I forget the security guards?  No.  A lot of those folks have been there for years, putting up with people who don't want to empty their pockets.  Yet, they usually have a smile and a kind word.  Every courthouse contains a lot of hard working people doing their jobs.  They have more power than you think, and can make your experience in the courthouse more pleasant or more unpleasant by the way they do their jobs.  It's human nature to try harder to be fabulous and pleasant for those who appreciate what they do.  I think they have tough jobs and for the most part do them well.  I tell them that a lot.  The cookies let them know I value what they do every bit as much as I do the people in positions of power.  They truly are Here in the Trenches.

Wednesday, December 4, 2013

It's Here......

On the first day of Christmas Cookie Season, I bought:

25 boxes of butter
6 dozen eggs
3 quarts of heavy cream
30 lbs of flour
20 lbs of sugar
32 oz powdered sugar
120 oz of pecans
40 oz of walnuts
104 oz chrystallized ginger
6 bottles ground ginger
4 bottles corn syrup
3 jars molasses
11 bags of coconut
3 bottles vanilla extract
36 oz unsweetened chocolate
9 bags chocolate chips
1 container of cocoa powder
assorted spices


the box full of Christmas movies.

Let the baking begin!

Tuesday, December 3, 2013

Who's the Parent?

The holidays are a lot on my mind right now, as it is for a lot of us here in the Trenches.  It is, historically, a time when we're very busy.  Everybody wants the children with them.  Mom's holiday celebration is more important than Dad's.  Dad's holiday celebration is more important than Mom's.  The parents think how horrible it will be to be at a family get together and be the only one without their children.   What about having to leave a family celebration early so the children can be with the other parent? Those situations must be avoided at all costs, and the only way that can happen is if the children are with them.  Then there are the folks whose parenting agreement isn't written with sufficient detail.  When, exactly is the halfway point of winter break?  Is it on Wednesday or Thursday?  Is it at noon or midnight?  The other parent can't have more time with the children, so these measurements must be exact.  Really?  Who's the adult here?  Normally, I would say it's the parents, but not here in the Trenches.  In the Trenches, the adult is usually the child.  Why do I say that?   Most families have a holiday tradition.  They usually spend the holiday with one side of the family or the other.  Not so after the divorce.  The children miss what they know, but they don't want to worry their parents - mom and dad have enough to think about.  They stoically endure the new holiday reality so that their parents don't feel bad.  Shouldn't it be the parents who endure so the children's holiday traditions are preserved?        Shouldn't it be the parent who spends somewhat less time with their child so the exchange doesn't have to happen at midnight?  One would think so.  Unfortunately, here in the Trenches, one would often be wrong.  How hard can it be for a parent to put the children first?  Harder than it seems.  Here in the Trenches.

Monday, December 2, 2013

Ah, the Holidays

I've been gone for a few days.  I went home to be with my Mom for Thanksgiving.  It was a tough holiday, the first holiday since my Dad died.  We didn't have a big dinner.  Just "My Cousin Vinny" and Steak Diane.  Christmas will be worse. It was his father's birthday and his favorite holiday.  I had lunch with a friend today.  She's suffered more loss and pain in the past decade than most people undergo in a lifetime.  She lost her husband the same week I lost my Dad.  She spent Thanksgiving with friends instead of family.  She's going on a vacation for Christmas.  We're having new people join our family celebration this year.  The point is, we're both doing the holidays a bit differently this year.  Doing everything the same would be just a painful reminder that Dad's missing.  Not that we need any reminders.  Nor does my friend.  We need a few new memories to ease our way through the holiday season, to make us smile and laugh instead of cry.
And the Trenches?  Well, the holidays are the time of year when families gather.  Because of that, it is the time of year when divorcing people feel the loss of their extended family most keenly.  Thanksgiving at the in laws?  Gone.  Christmas morning with the children?  Only in alternating years.  Your brother in law's daughter?  Never again.  The losses pile up, and most people don't realize what they are until they're gone.  It hurts - a lot.  The nuclear family breaks up and the losses are felt through the extended one as well.  All of the family connections change and the traditions are lost.  Some people spend the holidays mourning what they no longer have.  Others are determined to create new memories.  Is one way more correct than the other?  No.  Everyone deals with loss differently.  What works for one person isn't necessarily right for someone else.  I wouldn't feel right going on vacation instead of being with my family over Christmas.  That doesn't mean my friend's choice is wrong - it's just not right for me.  We all grieve in our own way.  Just because someone else's way isn't yours doesn't make it wrong.   Here in the Trenches.  

Tuesday, November 26, 2013

Let Me Tell You What I Need

       My puppy girl is not really a puppy as most would define it.  She's almost 14 years old.  That's kind of elderly for the canine species.   Like the elderly, she has some arthritis, a bit of stiffness in her joints.  Some days, going up stairs is not her favorite thing.  Lots of people would be telling her to slow down. They'd be taking her on shorter walks.  They'd be telling her what to do.  I don't do that.  My girl knows herself.  She knows the length of all of her regular walks, and she tells me which one she feels like taking.  Some days, the walk is ridiculously short, and on others, like today, they're a mile or more. I let her call the shots, because she's the best judge of how she's feeling.   Not every canine is like my puppy girl, to be sure, but when you have one like her, you listen to what she tells you.
       As I've said before, clients can be like my puppies.  Some clients are extremely emotional.  They are so flooded with emotion that they can't think clearly.  They have little insight into what they need and can tolerate.  They can't help their attorney advocate for them.  They are also so overwhelmed that they don't trust that they know what makes their spouse tick.  They can't help us, and we have to tell them what do and when to do it.  We have to decide what is good for them because they can't.  Others are just like my puppy girl.  They know what they need and how to get it.  They know how their spouse thinks and what their spouse wants.  They need their attorney's help to get their desired result, but they partner with them instead of letting them call all the shots.  Neither client is either good or bad; they're just different.  The important thing for those of us here in the Trenches is knowing what kind of client we have.  Treating either one like the other would be disastrous, kind of like telling my puppy girl  to take one walking route when she wants another.  Yet, there are attorneys who don't understand these different types of clients.  I know.  I had one.  I fired them.  Dogs and their owners.  Here in the Trenches.

Monday, November 25, 2013

The Day the Computers Died

          The hard drive on this awesome Apple MacBook died.  I took it to the Apple Store. Three hours later, I walk out with a fully repaired, awesome Apple MacBook.  In between, I sat at the Apple Store.  Sure, I did some work while I sat there.  Mostly, though, I watched people.  I watched the people who worked at the store and I watched the customers.  I noticed a lot of things.  The first thing I noticed is that there were a lot of people in the store.  There were shoppers, there were people getting their equipment repaired, and there were people taking classes.  That was only half of the people in the store.  The other half were Apple employees.  That's right - half of them were Apple employees.  Not one person entered that store without being approached by an Apple employee.  Ordinarily, that would annoy me, because I hate feeling pressured.  They didn't pressure anyone; they appeared genuine in their desire to help, and the customers responded in kind. Not all of the employees could actually help, but it didn't matter.  In the back of the store, where all the folks who needed repairs were situated, you would imagine the mood to be a bit tense.  It wasn't.  The customers were just as calm and, dare I say, happy as everyone else in the store.  Why?  It was because they felt that the people who were there to help them really were, and they cared about them and about solving their problem. Even when the item couldn't be repaired, the Apple folks talked them through options like a team.
         Contrast this with what happened to another intrepid member of the Trenches.  The week before my laptop died, hers did the same.  She took it in to be repaired.  It was dead.  So sorry, they told her.  The computer was dead.  They told her she might be able to go somewhere else and save some of her data, but she needed a new computer.  She left there with no computer, no idea who could help her, and no clue about what kind of computer to replace it with. She was adrift, and even the intrepid She wanted to cry.
          Oh goodness, isn't this just like the Trenches?  People come to us when their lives, not their computers, are broken.  They are beyond tense.  They come to us to help fix their lives.  We know they're on edge.  They don't need us to make it worse.   They need us to be calm, positive and reassuring.  Sometimes, there is not a lot we can do to make their situation better at any given point in time.   That makes our clients even more nervous, we know.   We're looking at the end game, and some points in time are not that important - to us.  To our clients, every point is important.  It would be easy for us to be impatient or to be matter of fact.  That would make it worse for our clients.  Like at the Apple store, we make sure to answer the phone with a smile on our faces and in our voices.  We really listen, even when it is the 10th time we've heard what the client has to say.  We ask questions to see what we can do.  We try to make them feel better and work toward a solution to their problem.  Most of all, we make sure they know we care.  Clients know when we do and it makes all of our lives easier at a really hard time in the client's life.   Can't we all learn from Apple?  Here in the Trenches.

Friday, November 22, 2013

Thursday, November 14, 2013

Be Nice When it Doesn't Count

Once again it happened.  The self-represented spouse of my client called the office and let the person answering the phone have it with both barrels.  He was upset because I didn't complete the order to transfer retirement assets into my client's name until four days before the uncontested divorce hearing.  The order didn't affect him at all; it had no effect on his life.  No matter.  He ranted and raved at her.  He was truly heinous.  Fast forward to today, the day of the hearing.  I saw him in court.  He was perfectly lovely and friendly.  Actually, we couldn't get him to leave us alone.  He wanted to share all of the details of his life.  I wish I could say this was the first time something like this happened, but it isn't even close.  I am constantly amazed at the number of people who are nasty to "the help," but wonderful to the boss.   Do they think the boss doesn't find out?  I remember reading somewhere that you can always tell a person's true character by how they treat those who serve them, like waiters, secretaries and housekeepers.  I believe it.  The staff tells us how you treat them, and we believe them.  We don't allow them to be mistreated, especially by people who aren't our clients.  If you are our client, don't make us fire you.  Treat the staff right.  Here in the Trenches.

For those of you who were worried, puppy girl went to the dentist.  She now has 5 fewer teeth.  She'll be back to her usual sweet, whiny and bossy self soon.

Wednesday, November 13, 2013

Luck of the Draw

Just in case you haven't been paying attention, when you are before a judge, you can't predict the outcome.  That point was driven home to me quite explicitly yesterday.  I was before a judge who I've known for quite a long time.  We were talking about something that could potentially become an issue later on but not yesterday.  One topic led to another, and we talked about the judge's view of a client's compliance with court orders if they believed (rationally and reasonably) that to do so would endanger their child.  Tough decision, right?  Well, this judge's view was that so long as a pleading was filed in court to ask a judge to change that behavior, the judge would find the non-compliance understandable.  Fair enough, except that a few months ago, I watched a different judge berate a client for engaging in self-help in exactly that type of situation.  Both judges are parents, both are the same sex, relatively the same age, but exactly opposite views.  Different judges, different opinions on the same facts.  That's the risk of litigation.  Here in the Trenches.

Monday, November 11, 2013

Simple Solutions

My puppies have not made an appearance here in a while, so they're due.  Puppy girl has been doing fairly well for a mature woman of 13.5 years.  She's been losing a bit of weight of late, and that has been a concern.  Off to the vet she went, along with her worshipful puppy boy.  She's fine, a small cyst on the inside of her lip, but all the bloodwork was normal.  Still....she's not eating much, and when she doesn't eat, neither does her adoring boy.  Worrisome.  I came home today, and again noticed she wasn't eating.  I put on my detective hat and wondered if the cyst was making chewing painful.  Maybe she broke a tooth.  So, I softened up some of her dog food.....and she scarfed it down.  So did her boy toy.  I feel better, she feels better, and we have more information to tell the vet.  Simple solution to a perplexing dilemma.
I have a case here in the Trenches that reminds me of my puppie girl.  No matter which way we approach it, a resolution slips through our hands.  The client wants one thing.  We explore it, we pursue it.  That's not what the client wants.  The client can't find time to meet.  We rearrange our schedules; the client changes plans and blames us.  We figure it's us, that we're missing something, that we're lacking in our advice and how we're approaching the case.  We beat ourselves up.  We try again.  Nothing.  We're so frustrated.  Then, we figure it out.  The solution is so simple we're amazed we didn't see it.  Nothing's making sense because the client is ambivalent about what they want.  They say they want a divorce, but their actions don't.  Such a relief.  Now we know what to do and how to help.  Just like my puppy girl.   Here in the Trenches.

Friday, November 8, 2013

Risk Management

There are many reasons to settle a case.  The one that most people understand, and the most usual reason, is that the parties have found their way to a mutually acceptable solution to their dispute.  There are other reasons as well.  The one which is hardest for most clients to understand is settling in order to manage risk.  That's right, manage risk.  As I've said before, going to trial is a gamble.  There are two sides to every story; two ways of looking at every set of facts.  When he goes to trial, the client is gambling that the judge will look at the facts his way and thus give him what he wants, what he believes he deserves.  The problem is that the other side of the case is thinking the same thing.  The risk is that the judge will rule in favor of the other side, and that can have serious repercussions.  Settling allows the client to manage the risk, have some control over the variables, even if the ultimate result is not entirely acceptable to them.  For example, there may be a possibility that the court could order an award of alimony.  There are no alimony guidelines in Maryland, and the court can't make alimony non-modifiable, so the amount and term of the alimony are uncertain.  The client might settle for paying more child support than the child support guidelines require in return for a waiver of alimony.  Is such an agreement ideal for the client? Probably not.   Is it what the court would award?  Maybe.  Maybe not.  There's a risk to going to court to find out, and the possible result could be worse than the higher child support.  The client controls the risk by settling the case.  In that way, the settlement is acceptable.  Here in the Trenches.

Wednesday, November 6, 2013

What Did You Say?

Sometimes, what a client thinks is significant and important, the judge does not.  Actually, it happens more often than you think.  That's why a client needs a lawyer.  Lawyers know the law.  We know what facts are important under the law.  We know what the judge thinks is significant.   So, why don't clients listen to their lawyer?   Beats me, but they don't.  Then they're surprised when the judge doesn't rule their way.  Here in the Trenches.

Tuesday, November 5, 2013

What May I Do?

Good judges know their limits.  That knowledge is more important than knowing the law.  Judges can only do what the statutes say they can do, or what the appellate court says is OK in written opinions.  That's it.  They can do no more than that.  If it's not written in one of those two sources, the Judge can't do it.  Period.  A good judge knows that.  A really good judge knows when a case needs more than that.  That's when a really good judge stops the trial and URGES the litigants to rethink settlement.  When a judge does that, a good attorney (or two) listen - really well.  You need an example?  Happy to oblige.  Some cases, especially custody cases, really need the input and opinion of a licensed mental health professional.  Some cases need those mental health professionals to help the parties make decisions by actually making some of the decisions, like whether and when a parent and child are ready to have more contact or whether a parent is emotionally healthy enough to make decisions.  How a custody arrangement progresses may need a mental health professional to make some decisions to help the parties move forward.  The judge doesn't have the knowledge to help.  Unfortunately, there's nothing in the statutes that lets a judge order that.  There's a written opinion that says a judge may not delegate decision making authority to a third party - without the express consent of the parties.  That means the judge can't order litigants to let a mental health professional make any custody decision.  The litigants have to agree, and the judge is not allowed to order them to agree.  In those cases, if the judge decides, the decision won't be as practical, fluid and workable as one with the mental health professional involved.  A really good judge knows that and pushes settlement.  We love a really good judge.  Here in the Trenches.

Monday, November 4, 2013

It's All About the Story

       Last week was my three day trial.  Whew!  I spent four days going home after dark and coming back to the office before dawn.  It was exhausting.  To reward myself for a job well done, I went out and bought myself two new pairs of shoes - but I digress.  As you might imagine, a three day trial provides lots of Trenches moments for this blog.  It gives me at least a week's worth....
       First, let's start with my pet peeve.  Attorneys who don't prepare their clients or witnesses for testimony.  This is different than the flip side - clients who don't take preparation for trial seriously.  There are two levels to preparing witnesses for testimony.  The first is having a theory of the case.  The second is the preparation itself.   You can't do the second properly without the first.  It reminds me a bit about the Chesire Cat in Alice in Wonderland:  if you don't know where you're going, how will you know when you get there?  You see, presenting a case in court is all about telling a story.  The lawyer doesn't tell the story herself; she uses various people, or witnesses to weave different pieces of the tale together so the story flows together, makes sense to the judge, and persuades.  Some people can tell a story and some can't.  It's kind of like telling a joke; some can tell one, and others can't (I'm one of those who can't).   Even if you're not a good story teller, however, it's obvious when you at least try.  Then, even if the story comes out in herks and jerks instead of smoothly, at least there's a story.  I'm pretty good at telling a story; not every attorney is.
       That, of course, brings us to the second part of the preparation, the testimony itself.  Clients and their witnesses know a lot of facts.  Some of those facts are important to the story and some are not.  Some facts, all the witnesses know, and they don't need to be presented by everyone.  That's part of telling a story - knowing which facts are important and essential to the story and which are not.  It's important to know which person is the best one to reveal the facts, as well.  The witnesses don't know what facts that they know are important to the story because they're not telling it.  The attorney is, and it's up to her
to elicit the necessary facts.  That takes work, both by the attorney and the witness.  There's no shortcuts, and it takes time to do it right.  Lots of time.  Here in the Trenches.

Tuesday, October 29, 2013

Lather, Rinse, Repeat

Every once in a while, I have to repeat myself.  Today is one of those days.  The Trenches is a small community.  Mostly everyone who works here knows each other.  Many of us like each other.  They become our friends.  It's only natural, as these are the people we are around day in and day out.  Our associations are fluid in that sometimes we work together on projects, to teach classes, to make presentations to the public.  Then, we turn around and oppose each other in court or act as a mediator, a neutral, in the case in which one of our friends and colleagues is the attorney (sometimes it's both attorneys).  Clients don't understand how we can do that.  We can.  It's our training.  We are taught as litigators and lawyers to advocate for our clients within the law to the best of our ability, to keep their secrets and to present their case in the best possible light to the court or the other side.  It is what we are paid to do.  We know it's not personal.  We throw each other under the bus on occasion, then have lunch together.  We compartmentalize.  As mediators, we are trained to facilitate discussion and settlement.  We help the parties problem solve.  We might raise issues for the parties to consider, points of law they may not have thought about.  We might also spend more time with one side than another, not because we like them but because we need to in that particular case.  We don't force anyone to make a decision.  Our training is to be impartial.  Again, it's what we do.
        Some clients don't understand this dynamic, and I admit that to the outside world, it can seem somewhat strange.  To us, it's normal.  In fact, if you're a client, you want us to be friendly and collegial.  Huh?  It's true.  As a lawyer, when I know, respect and perhaps like my opposing counsel, I know how they work.  I know how they think.  I know how they litigate a case.  I know how they negotiate a case.  I know when they've reached their bottom line.  I know we can reach agreement on the ministerial parts of our job, such as order of presenting in court,  narrowing of the issues, timing of depositions and the like; that saves the client a lot of money.  Our relationship makes it easier to map the course of the case.  I still fight hard and so do they; that never changes whether they're my friend or not.
The same applies when a friend or colleague is the mediator.  They know when I've reached my bottom line.  They know when I have more room to negotiate.  That makes mediation so much easier on the clients because the mediator knows when to fold 'em and when to push a bit more.  It saves a lot of unnecessary time around the mediation table, again saving the client money.  I would never dream of pushing someone to settle because the other side is my friend, and I don't know any friend or colleague here in the Trenches who would do that either.  Our relationship simply makes things move smoother; it doesn't make settling any easier.  If I don't like and respect you?  It's a long bumpy road to resolution because there is no knowledge and there is no trust.  Here in the Trenches.

Wednesday, October 23, 2013

Move Over Kreskin

I have a three day trial next week.  It is overwhelming.  It's not that there's so much to do, once you start  in on it.  It's not that there are a whole lot of exhibits to copy, because there aren't.  It is not the work that's overwhelming:  it's the responsibility.  The fate of a small child and a family ride on the outcome of this trial.  That's a lot of pressure - for everyone.  Will my arguments be enough to carry the day?  Will the judge see the facts that support my clients' case and rule in their favor?  I'll do the best I can, but at the end of the day, it isn't up to me.  It's up to the judge.  That's the interesting part about litigation.   You have to put yourself in the mind of the judge and try to see the case the way the judge will.  You have to try to guess what is important and not so important to the judge.  Does he like a lot of exhibits?  Not too many?  What kinds of witnesses impress her?  Does he like experts or think they're full of it?  Are teachers good?  What about neighbors?  What ticks the judge off?  Adultery?  Financial hardball?  Every judge is different, and you need to know what each of them wants.  Here in my Trenches, you don't find out what judge you have until the day before trial.  That makes an awful lot of work  and anxiety.  I know it's not my life, but I feel responsible for my clients'.  Here in the Trenches.

Monday, October 21, 2013

Reading and Writing

Can you read?  No, really, it's a serious question.  If the answer is "yes," then make sure you do it. If your name is on a document here in the Trenches, then we assume you read it first. If you didn't, shame on you.  You'll still be bound.  The fact is, most people read what they sign.  They negotiate their agreements.  They understand the terms of the papers they sign.  They agree.  Then, they go home.  They have dinner and a drink.  They Think about it.  They sleep on it.  They wake up.  They gasp.  They can't believe that to which they agreed.  How could they have done that?  Oh wait, they didn't.  It must have been a mistake.  That's it; it was a scrivener's error.  Someone must have pulled a fast one.  Let's just fix it.  One problem - it wasn't an error and no one pulled a fast one.  They did agree.  In fact, they sat and read the complete agreement for over half an hour before they signed it.  That they regretted it later is simply too bad.  If you can read and understand, you read and understood.  End of Story. Here in the Trenches.

Tuesday, October 15, 2013

I Issue An Invitation, But Will You Take It?

I often issue invitations to my clients.  I request that they look at things a little differently.  I ask that instead of ascribing nefarious motives to the other parent or spouse, that they suspend judgment and give the other the benefit of the doubt.  I ask that they approach the settlement of the financial issues in their case as a business deal instead of the heart wrenching end of their marriage and the unravelling of their life as spouses.  I ask that they control the urge to add a personal "shot" to their emails.  I beg them to halt the overt accusations.  Do they listen?  Some of them do; others do not.  When they listen, I have great hope for their future.  It means that they are capable of seeing shades of grey and are not black and white in their thinking.  It means that they are emotionally healthy enough to understand their emotions, although healthy, may not be their friend in dealing with the former partner or the legal system.  It means they are open-minded enough to think there may be a different way to deal with others that might yield a better result.  What about the ones who don't hear me?  Who don't heed my advice? Many of them remain stuck.  They rarely move forward with their lives.  They can't compromise.  They let the anger and the pain rule their actions.  They wonder why they never have a civil conversation with their former partner.  They rage that their former partner is unreasonable.  Years later, they're still bitter and angry.  The one who listen to my advice?  They've moved on, and are living happy lives.  I know.  They keep in touch and let me know that they're glad they accepted my invitation.  Where would you rather be in 10 years - angry or content?  Your choice.  Here in the Trenches.

Wednesday, October 9, 2013

Is A Good Attorney Enough?

With the wrong attorney, you can sometimes feel worse than alone.  The truth of that sentence was really driven home to me today.  Why today?  Today, I was part of a settlement conference at which the custody evaluator gave her report.  The report was devastating news to one of the parties.  One of the reasons it was so crushing was that it was unexpected.  Not to me.  Not to my clients.  Not to another one of the parties.  So why was it so to this one?  It was simply because she was unprepared.  Her attorney never explored with her the very real possibility that the evaluation would not be favorable to her, much less the catastrophic report that ensued.  You would think her attorney would be concerned.  You would think he would be solicitous.  You would think he would care about his client's trauma.  You would be wrong.  The evaluator was as kind as possible under the circumstances to this party. Her attorney?  Let's see.  He spent his time spinning in his chair, checking his hangnails, refilling his cup of coffee.  I don't believe he ever looked once in his client's direction.  My heart, and those of my clients, went out to her.  How awful to be so alone when your counsel, the one who is supposed to look out for your interests and support you, isn't really thinking about you.  Her attorney's questions make it obvious that he will not advise her to settle the case and we will go forward to trial.   Where she will again be alone.  Is her attorney incompetent?  Not really.  Is he uncaring?  Certainly.  Let's amend yesterday's blog a bit, shall we?  If I were going to trial, I would want a good attorney.  I would also want one who cares how the result affects me.  How about you?  Here in the Trenches.

Tuesday, October 8, 2013

You Say It's Your Birthday....

Happy birthday to me.  I spent mine trying a custody modification case in court.   The other side was representing himself.   Watching him made me start to think (again) why that is really not a good idea.  If I have said it once, I will say it again:  if you are actually going to try a case, hire a lawyer.  No, I take that back:  after watching the case before ours where it took one of the attorneys almost half an hour to prove a case for an uncontested limited divorce (which usually takes less than 10 minutes), I amend my previous comment to tell you to hire a good lawyer.  Why should you hire a lawyer?  Really, how hard can trying a case be?  Actually, it's very hard, which is why lawyers go to law school for three years after college.  It's not just knowing the substantive law that makes a lawyer necessary.  It is understanding the nuances of two things:  questioning and proof.  A good lawyer knows how to ask a question.  A good lawyer knows how to take an answer.  A good lawyer knows how many questions to ask.  There are tons of questions you can ask in any case.  The trick is knowing what is important, how to elicit that information, and how to know when you've gotten it.  It's a question of degree, and it's subtle.  The ordinary person does not understand this concept.  As a result, they ask 100 questions where 1 will do.  They ask all the wrong questions.  Plus, they push for the big admission which almost never comes.  It's tedious, or as the judge in my case today put it, like beating a horse with a broom.  The same is true of evidence.  You can introduce every piece of paper ever written concerning your case.  The judge will die of boredom, but you will not have forgotten anything. You also will not have proven anything that anyone will be able to follow.  The trick here again is knowing what pieces of paper help your case and what don't.  Don't even get me started on knowing what pieces of evidence are admissible and which are not.  I don't have enough space here.  The point is that the ordinary person has no clue.  Today was a prime example.  It took the opposing party an hour and a half to conduct a cross examination of my client that would have taken me 15 minutes or less.  He repeated every question at least 5 times, in 5 different ways, hoping against hope my client would finally give him the answer he wanted.  She wouldn't.  The judge made her horse comment.  There was a point when he made a good point, and even though I was representing the other side, all I could think was that he should stop there and sit down.  He didn't.  He continued and completely obscured his really good score.  I would have shut up and moved on.  It makes a difference to the judge, who after all is your audience, and that makes a difference to your client.  Would you do brain surgery on yourself?  Well, the courtroom is the lawyer's operating theater, so don't try your own case.  It isn't pretty and the result is not what you'd want.  Here in the Trenches.

Monday, October 7, 2013

War and Peace

I like to say there are two types of family law attorneys:  the litigators and the counselors at law.  The litigators scream at you from almost every TV show and movie that have roles for lawyers.  The counselors at law you rarely see in popular media.  The reason is drama. There is nothing more dramatic than watching an attorney perform in a courtroom.  Counselors at law are boring for passive audiences; they work with clients to solve their problems, usually but not always outside of the courtroom.  The main difference between litigators and counselors at law, however, is in their approach to family law.  The only tool in the litigator's toolbox is a hammer, so every problem is a nail, or in this instance, a case to be tried.  The counselor at law, by contrast, has a tool box full of all kinds of tools in addition to the hammer of litigation:  mediation, collaboration and negotiation.  Those tools have component parts that can be broken down and used with other tools, if you only know how to do it.  The counselor at law does; the litigator doesn't.  Just because your attorney litigates doesn't make them a litigator.  It is their attitude toward litigation and their approach to you and your case that lets you know what kind of attorney you have.  Are they interested in solving your problem or simply in trying your case?  Do they explore other avenues, or is the road to the courthouse the only one they know?  Do they dismiss the notion that professionals other than attorneys can help resolve your issues?  There's nothing wrong with trying a case; many cases need to be decided by a judge.  So many more do not.  Just my opinion.  Choose your attorney wisely.  Here in the Trenches.

Thursday, October 3, 2013


You are getting a divorce.  You are in the middle of a custody dispute.  Emotions are high.  Emotions color what you say, how you say it and how it's heard.  The more you say to your former spouse or the other parent, the greater likelihood you will be misunderstood.  That seems so simple, doesn't it?  It's almost intuitive.  Why then, do our clients continue to provide too much information?   Why do they throw in gratuitous jabs, snarky remarks, begging and pleading?   We here in the Trenches have a lot of work.  We have plenty to do on a daily basis without acting as the email police because our clients say too much in a way that is guaranteed to start the next world war.  Bill Eddy, my favorite writer and speaker on all people high conflict, has written a book, BIFF, which sets out the right way to email when you are in the Trenches, or just out there living life.  (If you click on the title, it will take you to the order form for the book.)  It is a gem of a book, and if more clients would read, we here in the Trenches could spend more time resolving the dispute and less time refereeing it.  BIFF is a cute little acronym for how a good email is written.  It is Brief, Informative, Friendly and Firm, or as Joe Friday used to say on Dragnet, "Just the facts, ma'am." His method takes the emotion out of the text, and enables the recipient to hear the message without the emotional overlay.  All those electronic encounters become more businesslike and rational.  What's funny is that once the emails become more neutral, the emotions of the case start to calm down.   Psychologists call it behavior modification therapy.  I call it faking it until you make.  Whatever its name, it works.  Here in the Trenches.

Tuesday, October 1, 2013

It's Mine, Mine, Mine

It is not all about you.  Repeat.  It is not all about you.  I know, you spent a lot of money on those clothes for your children; the other parent went to Goodwill.  I know, you're sick of the nice clothes staying at the other parent's house, and the not so nice ones being worn by the children when they come to yours.  It really pisses you off to wash those crappy clothes; you mumble under your breath the entire time you're washing them.  You decide you're not going to take it anymore.  You are not going to let the other parent take advantage of you like that.  What do you do?  Well, first, you send the children back in the crappy clothes they came in.  Next, you demand all of your nice clothes back.  In a show of good faith, you put the dirty crappy clothes that have accumulated at your house in the children's backpacks to go to the other house.  You tell your children to make sure they bring back the sneakers Auntie Sue bought for them, because they don't belong at the other parent's house.  Maybe, you put all the crappy dirty clothes in a garbage bag and dump them in the other parent's driveway.  Why should you stop here?  Let's apply this to all of your children's possessions.  What you bought stays at your house and what that other parent bought stays at theirs.  STOP!  That's right, stop.  Breathe.....and think.  You may have bought all those things, but you gave them to your children.  They belong to them.  Don't argue with me that you paid for them so they're yours.  Unless you are going to wear that shirt from Justice, I don't want to hear about it.  They belong to your children - period.  What kind of horrible messages are you giving them when you engage in the actions I've described here?  Let's count them.  First and foremost, you have made it very clear that you didn't buy them those clothes they love so much because you love them:  you bought them to make you look good.  Otherwise, why can't they wear them other places?  Second, you'e letting them know that it's OK to be selfish and self centered.  Why else would you care more about everyone knowing you bought the nice clothes and keeping them for yourself rather than letting your children just wear them?   Third, you've told them their happiness and security is secondary to any squabble you have with the other parent.  How's that for letting your children know how unimportant they are in your life?  You're using them as a weapon in your quest to look better than the other parent.  Finally, you are confirming for your children that they have no control over their lives or their possessions.  You've already told them they can't have both parents together, they can't have one house to live in, and they have to move back and forth for the rest of their childhood.  Now you're telling them they can't even control what clothes they wear when.  They're just clothes, clothes that will probably be outgrown next month.  And then you wonder why they're screwed up.  Look in the mirror, then knock it off.  Here in the Trenches.

Monday, September 30, 2013

Welcome October?

I won't kid you.  I love birthdays.  I love making them at least a week-long celebration.  It's easy for me to make the entire month of October a birthday celebration, as daughter's birthday is exactly two weeks after mine. We just roll from one birthday to another.  This year, however, my birthday falls on the three month memorial of my dad's death.  Already I'm guessing that this birthday will be a bit bittersweet.  After all, how many people count a visit to their father's grave as part of the birthday celebration?  You may be asking how all of this relates to the Trenches, but you know I'll find a way.  You also know I've been there.  How many years will it take before you can pass your anniversary and your former spouse's birthday without it feeling weird that you're not celebrating?  How long before the new way you're celebrating Christmas, Thanksgiving,  Rosh Hashanah or Yom Kippur feels right instead of strange?  Quite a while.  Eventually though, you find your way to your new normal.  It will happen, trust me.  It just takes time.   Here in the Trenches.

Tuesday, September 24, 2013

Baby Veronica

As you all may have read in the news today, Baby Veronica was reunited with her adoptive parents and has left the state of Oklahoma (finally!) to head home to South Carolina.  The case is over and everyone can move on with their lives.  Swift justice indeed - it took only 3 or so years for the case to work its way from original adoption, to the U.S. Supreme Court  and back again to South Carolina, to an Oklahoma Court that stayed enforcement of the South Carolina order, to the birth father being charged criminally, and finally to the stay lifting and Veronica heading home. In the Trenches, that really is pretty fast.  Lots of lawyers (including some of my friends here in the Trenches) worked very hard to make that happen.  Good work!
When clients ask how long a case can take, I try to tell them that the only way you can predict the length of a case is to stay out of court.  When you mediate, collaborate or negotiate, you can control the pace of the settlement of the case, you can control how much time to spend on what, how much importance to give to facts and issues, and most importantly, when to compromise and move on.  Otherwise, the court determines how much time the case takes, at least initially. Someone is usually disappointed.  How disappointed they are determines whether they take an appeal.  If the judge did make a mistake, you come back to the trial court and do it again.  That's called a remand.  Maybe there's another appeal after a remand.  We can do this over and over again, and some people do.   Oh, and did I mention that you probably won't get that initial trial date until somewhere 6 to 7 months down the road, an appeal takes 9 months to a year,  and then you go down and start all over again.  Cases on remand from an appeal don't get to cut the line, so they get set in as if they were just filed.  And on it goes.  Which way would you like to spend years of your life - in court or moving on?  Here in the Trenches.

Thursday, September 19, 2013

Income and Child Support

I don't usually talk about substantive issues on this blog.  Today, I make one of my exceptions.  Let's talk income.  Not income for tax purposes.  Not income as in money you can spend.  I want to talk about income for child support purposes.  You see, what we consider income here in the Trenches isn't necessarily what clients consider income.  Hence, a short primer on income in the Trenches.  Income here in the Trenches is any money, services, or gifts received on a regular basis, or as a result of employment, which reduces the living expenses of the recipient.  That means if your business pays for your cell phone which you use for both personal and business purposes, your health insurance, your car expenses, or for your uniform, those amounts are considered income to you here in the Trenches.  If your parents give you money to live on every year, if you live with Mom and Dad for free, or if Mom and Dad let you live in a house they own and don't charge you for it, that can be considered income here in the Trenches.
If you have your own business, there are a lot of legitimate IRS deductions that the court can and will add back into your income.  Yes, I know depreciation is a legitimate expense, but it's only one on paper; we consider it income here in the Trenches.  If you have a home based business, unless it's a landscaping business, the IRS understands you need to make the grounds of your office look good to impress clients, but here in the Trenches, it's probably income.  Same thing for nice dishes to serve clients coffee and snacks, if you also use them to eat dinner.  Meals out?  Are they staff meals for your office of one, or are they for entertaining clients?  It makes a difference here in the Trenches whether we consider them income or a true business expense.  Remember, if it decreases your need to pay for your living expenses personally or it is only an expense on paper, we here in the Trenches don't care what the IRS says.  It's income.  But wait, there's more.  Did you loan your business money?  Is it a true loan or an infusion of equity?  We know there are legitimate reasons for both.  One, however, is a liability of the company and may have an effect on income; the other has little to no effect on income.  The difficulty is that legitimate business purposes and Trenches income sometimes work at cross purposes.  It's enough to give you heartburn.  Here in the Trenches.

Wednesday, September 18, 2013

All Dressed Up and Nowhere to Go

There is one aspect of life here in the Trenches that is hard for us to explain and for clients to understand.  How do you explain that the judge doesn't want to hear your case?  That the prosecutor doesn't want to move forward with the charges?  It doesn't feel fair.  It's their jobs, right?  We pay them to hear the evidence and make a decision, and to prosecute the accused.  They're hired and appointed to make decisions and to keep us safe.  So why isn't that happening?  Here in the Trenches, we've been on both the attorney and the client side of that conundrum.  As attorneys, we tell our clients that we understand that it doesn't feel fair, we know this is not how the process is supposed to work, but that's what happens sometimes.  It's all part of the judicial system.   Sometimes, there are good reasons why a prosecutor doesn't want to try a case, and why a judge doesn't want to hold a trial.  It really doesn't matter to the client.  They feel scared, betrayed, frustrated, and disappointed.  I don't blame them.  Here in the Trenches.

Monday, September 16, 2013

Some of you may remember the trials and tribulations of my backyard.  That's a picture of it, finally finished up above.   Now, my front yard, that little postage stamp with the apple tree that bears bushels of fruit each year, needs to be redone.  I agonized over it.  I had in mind something different than the backyard, perhaps a cottage feel.  I poured over books and websites.  I sat across the street and stared at it.  I could not make a decision.  I thought it was because I was tired, not in the mood, unmotivated.  Then, this morning, I started thinking about the apple tree.  What did it need under and around it?  Should I do something special to take care of it?  Turns out that apple trees have special needs.  There are a lot of plants you shouldn't grow under them, and some you should.  I looked up those plants.  I sat down with pencil, paper and the internet.  In an hour, I had the garden planned and the plants ordered.
Life in the Trenches is kind of like planning a garden.  Usually, you have a plan for how a case should progress, and clients have an idea of how their case should go and how the issues should resolve.  Many times, those plans work out and the case concludes satisfactorily.  Sometimes, however, the case just doesn't progress the way it should.  No matter what you try, you can't mesh the other side's needs with those of your client.  Your strategy isn't one with which your client is completely comfortable.  The case feels more difficult than it needs to be.  What's called for in that situation is a step back.  Both the lawyer and the client need to review the client's story and reassess the facts.  Usually, one or the other can find another way to look at the facts, another way to approach the case, another way to move forward with their life.  Suddenly, everything in the case seems easier, a resolution presents itself, compromise is possible and the case resolves.  Here in the Trenches.

Wednesday, September 11, 2013

Act in Haste; Repent at Leisure.

Hitting "send" or "post" takes a second, but what is posted or sent lasts forever.  How many times have I written about Facebook, Linked In, My Space, Twitter and the like?  Not enough, obviously, as here I am, needing to write it again.  Just because you can post something, doesn't mean you should.  Can you please think before you put it out on the internet?  Think about the repercussions of what you're putting out there.  If you're in the middle of a child support modification case, don't post pictures of yourself on expensive vacations, going to exclusive clubs, sending your doggie to daycare, and the like.  If you're in the middle of a child custody case, pictures of yourself partying, drinking, in skimpy clothes, hanging on a different member of the opposite sex every day, are not good to post.  If you're claiming you're disabled, pictures of yourself running around town, exercising and talking about how busy you are is generally not smart either.  The sad part of all this is that under normal circumstances, any of these postings is not damaging, but under the circumstances of a particular case, they're crushing.  The truly tragic part of all this is that at the time each of these things were posted, there was no child support modification, no custody case and no claim of disability.  It is only later, when each of those legal issues raised their ugly heads, that the posts became important.  The point is to be careful as to what put out in the public domain; even though it may not seem harmful at the time, the more the world knows about you, the more it can be used against you.  Plus, it never goes away but exists forever.  Here in the Trenches.

Tuesday, September 10, 2013

I Don't Wanna

Your children did not ask you to divorce.  They did not cause the divorce.  They don't want it.  They are.....children.  I know - shocking.  Children will always want you and your spouse to be married.  They always want to have their family intact.  If you had your druthers, you would want that too.  The things that make you either no longer love your spouse or no longer be able to live with your spouse are generally (and there are exceptions) not things that make your children not want to live with their other parent.  For your children, the separation is an unwelcome shock.  They do not have the life experience to deal with the emotions and the changes that divorce brings.  That means that it takes them longer to get used to their divided family and the permanence of the situation.  You may have moved on 3 or 6 months after you separated, but your children have not.  They need time, and they need you to understand that.  Sure, to you looking at a new home is exciting and represents a new beginning; to your children it represents confirmation that their lives will never be the same.  Most parents are aghast if you ask them to nest in the marital home, where the parents and not the children rotate in and out of residence, for the next 10-15 years. Yet, that is exactly what they ask their children to do, and to be happy and excited about it.  They aren't; and they will never be.  Resigned to it, used to it?  Yes.  Happy about it? No.  Understand that and slow down, even if it inconveniences you; your children will thank you for it.  Here in the Trenches.

Monday, September 9, 2013

Sometimes, People Surprise You

Nothing really surprises me anymore.  I know, you expect that from folks who work here in the Trenches.  Today, however, I was bowled over, rendered speechless, and had my faith in human nature renewed.  Once upon a time, 4 or so years ago, I had a client.  She was a good client.  She didn't earn a lot of money, but we came to an arrangement of how much she could pay me and when. She kept her part of the bargain.  When things were tough and she couldn't pay for a few months, she called me to let me know and to tell me when she could pay again.  She always kept her word.  Then she got cancer.  She called me.  She told me.  I cried; she's a young woman with a young child and such a nice person.  But I digress from my story.  She, obviously, wasn't working and couldn't pay.  She told me.  She kept me up to date.  We here in the Trenches talked and decided to write off her balance.  It wasn't an insubstantial amount, but it wasn't a lot.  I told her what we decided and why.  We told her not to worry about it, that it was our gift to her.  That was in 2011.  She called today and paid her bill in full.  That's right - paid her bill in full.  We told her she didn't have to, that it was our gift to her.  She insisted.  She said we were there for her when she needed us, we understood when she was sick.  She's still not well, but she's back to work and her finances are in good shape, so she wanted to pay her debts.  Wow.   I wish I could say this rarely happens, but I wouldn't be telling the truth.  This has never happened before.  I have no words - except "Thank you."  Here in the Trenches.

Thursday, September 5, 2013

Hoorah for Diana Nyad!

Little known fact:  Diana Nyad went to my high school.  Sure, she graduated when I was but a wee tyke (stop laughing), but we do share an alma mater.  One hopes that a little piece of her rubbed off on me just by walking the same halls.  Truly, she is incredible, and a role model for so many in the Trenches.  For those of you who have been away from the media, or who have somehow managed to miss the news this week, Ms. Nyad became the first person to swim from Cuba to the United States without a shark cage.  If that isn't incredible enough, she swam 110 miles without leaving the water.  The swim took 53 hours, that's right, 53 hours.  I'm already in awe at this point, but we haven't gotten to the most amazing part of her swim.  It was her fifth attempt since 1978, she took 30 years off in the middle, and she is 64 years old.  Yes, I said 64.  Think about it.  Not only is she at an age where most people think she should be slowing down, but she also managed to convince 30 people to be part of her team for the swim, and convince sponsors to put up their cold hard cash so she could afford the training, the crew and the equipment necessary for such a feat.  That cannot have been easy for a 64 year old woman to do.  Yet she did it.
Sorry to tell all of you in the Trenches, but Ms. Nyad has really hurt many of you in the Trenches.  We ask our clients constantly what they want to do in the next chapter of their lives (post divorce).  Many have a plan.  So many do not, and they tell us how they can't imagine going back into the work force after so long in the home.  They tell me they are too old to learn anything new.  I get it.  These people never expected to divorce and never expected their lives to change.  That it has is difficult to wrap their minds around.  But folks, if Diana Nyad can take 30 years "off" of swimming and still come back at age 64 to swim from Cuba, if she can place mind over matter and power through what sounds like a miserable swim, then you can remake your life as well.  Sure, it takes more than mind over matter; it takes hard work.  And, they do say that living well is the best in the Trenches.

Wednesday, September 4, 2013

Sure, You Can Have It, But Is It Really What You Want?

I've spent a couple of weeks being the reality check for clients.  I take that back.  I have not been a reality check as much as I've been the interpreter between the real world and the judiciary.  I've settled 3 cases in the last two weeks.  I wish I could say my clients were wonderfully thrilled with the results at the time, but it's human nature to think that if they had gone to court, a judge would see things their way.  It so rarely happens.  At any rate, all of this started me thinking about what it is we do here in the Trenches, and what it means to represent our client's interests.
As I've said time and again, the first thing we try to do is distill what our clients tell us about where they've been and where they want to go into specific needs and wants.  Sometimes they want the house, and sometimes what they want is stability for themselves and their families.  Sometimes they want the pension, and sometimes they want to know they won't be eating Alpo in their twilight years.  At times, it's easy to decipher their wants and needs from what they say, and other times, we only get it partially right.  We keep trying.
In order to advise our clients best, we gather information.  Lots of information.  Some of it seems redundant.  Some of it feels less than useful.  We need it, and not just to cover our rear sides.  We need to see where this family has been in the past, what kinds of choices they made.  We need to learn the bargains the spouses had with each other, whether they felt like choices or dictates.  Did they live beyond their means or within them?  Have their fortune always been the way they are, or did something happen along the way to change them?  Are they risk takers?  We find all that and more from the information we gather.  We also find out the same about their spouses.
Then, we distill the information in order to advise our clients about their best course of action.  This is where the real art of the Trenches comes into play.  We have to assess whether what they tell us they want is reasonable and realistic.  Can it happen, and if so, what will it take to effectuate?  Does what we've learned about their spouse make us believe these folks can agree on that course of action?  We need to use our knowledge of the particular court in which we would be appearing would decide the case.  Do these facts play well in Peoria?  Will strict application of the law give our client what they want (the answer, by the way, is usually "no")?  Will our client come across well on the witness stand?  Can they express themselves in a way that feels genuine and sympathetic?  Will they hold up under the other side's questioning?  Can they sit in a courtroom and hear testimony that is not favorable to them?   Throughout the time our client is in the Trenches, we are assessing these factors and advising the client.  Unfortunately, because of the emotionality of the Trenches, sometimes our clients are not able to hear us.  They become entrenched, so to speak, in their story and their position.  They become convinced that despite what we've told them, the court will see the rightness of their cause and decide to give them everything they want.  Certainly, the court may decide in their favor, but rarely will they get everything they want.  Isn't it better to get most of what a client wants or what is most important to them, rather than win the case but not get the thing that matters most?  That last piece is the rub - here in the Trenches.

Monday, September 2, 2013

They Paved Paradise....

I swim all summer in the outdoor pool in my neighborhood.  Usually, it's just me, the lifeguards and a few other people.  This past weekend was the last weekend of the outdoor pool season.  I showed up at the pool to swim, and the manager told me it would be a "challenge" to swim my laps.  He wasn't kidding.  I've never seen so many people at the pool.  It seemed like everyone who lived in the neighborhood was there.  Now that the pool was about to close, everyone was afraid it was going to be gone and they would have missed it.  Too bad, they didn't miss it the rest of the season.  Bt now that it was about to be gone....
Oh my, isn't this so like the Trenches?  On so many levels, it is.  How many clients out there don't want their spouse until their spouse moves on and finds someone else?  Then, they worry about what they let go.  Then there are the clients who want a different life, until they find out that the new life means a fresh start with half the assets.  Then, they want the old one back.  We're always afraid we're missing something; it's just human nature.  That's why advertising is so effective - we always want the next best thing.  What we have isn't good enough.  Wouldn't it be nice, though, if we appreciated what we had while it was still in front of us?  It was good enough when we first acquired it, whatever "it" is.  What if we actually explored why it isn't good enough now?  It would cut down on our business, but it's too much work for most people.   Here in the Trenches.

Wednesday, August 28, 2013

I Give You My All, But Is It Appreciated?

Working and living here in the Trenches is hard.  It's difficult work, with highly emotional people.  The issues are tricky.  Sometimes, the clients are ugly.  Sometimes, it's opposing counsel.  Sometimes, you can't settle and the judge comes out with a decision that doesn't feel fair.  It takes its toll.  At times, you wonder if it's really worth it.  Does anyone ever really appreciate what you do for them?  Then my Dad died.  One client brought me an orchid, and video recorded the mourner's kaddish at Friday night services for me.  A number of others sent me notes and emails.  Some called to see how I was.  When I sat down to think about it, I received more notes and condolences from clients than I did from friends and colleagues.  To be fair, many of my friends here in the Trenches were there for me, covering my cases and just being there.  Still, the outpouring from my clients made me cry.  They may not say so because they are suffering through their family law matters, but the last month answered the question of whether clients care that you go above and beyond for them.. They do.  Thank you all.  Here in the Trenches.

Monday, August 26, 2013

Fair? What's Fair?

Over the weekend, I was reading an article by Mark Baer about the interplay of fairness and the law in dispute resolution here in the Trenches.  He reiterates a lot of what I've talked about here:  what is "fair" is a subjective concept that means different things to different people.  He also writes about as well as I've seen about the fallacy of assuming that courts do what's fair, and also, that what the law provides is fair.  It reminded me of my last collaborative law training.  There is, of course, a portion of the training that talks about "The Law."  It was the section I presented, and my favorite example is the child support guidelines.   I was talking about how I discuss child support, which is that the guidelines are a federal requirement with which the states comply in order to obtain federal funding in other areas, and that the guidelines themselves are really the opinion of the state legislature of how much it costs to raise a child in the state, and that it is an average for the rural, urban and suburban areas.  Any of you who know me know that's how the talk always goes.  Well, as luck would have it, one of our participants was a Family Law Master.  This Master was really upset by what I said, because, as she informed the room, the guidelines are mandatory, and so you must use them, and I should not tell clients anything else.  It was at that point that my lovely training alter ego, Bruce Avery, jumped in and said that guidelines are what the legislature has determined to be the minimum amount to support a child, and that when you explain to clients the purpose for child support, they usually come up with a support number that is higher than the guidelines.  Why?  Because then it is a real number representing real support for real expenses for their children, and not just some arbitrary dollar amount someone tells them they have to pay.  My experience is just like Bruce's.  The law is a reference point, but it's not necessarily what is fair.  Here in the Trenches.

Friday, August 23, 2013

Ups and Downs

Today was a day of highs and lows here in the Trenches.  On the high side, a couple of weeks ago, we offered to settle a case.  The other attorney rejected the offer out of hand, so we went to a hearing.  We got the decision today.  The decision followed exactly the terms of our offer of settlement.  It's all part of knowing your court and your trier of fact.  The low side was for the same reason.  When clients have unrealistic expectations, we try to gently guide them around to a more reasonable point of view.  We try to refocus them on wants and needs rather than positions.  We try to problem solve.  We try to point out different ways of looking at issues.  Sometimes none of that works.  For some reason, those same people are the ones who would make really bad witnesses - they won't be able to answer a question succinctly and will say exactly the wrong thing on  the witness stand.  They are usually also the folks who are highly anxious in the courtroom and can't hide it.  With those clients, you have to be brutal and really tell them like it is.  It's difficult and painful, but necessary.  It is the least favorite part of my job.  I hate being mean, even when to do so is a kindness.  Unfortunately, I know my court, and I know what plays well and what doesn't, so I have to tell them.,   Otherwise, they'll be surprised and devastated in the courtroom, and that certainly would not be kind or in their best interest.  It's all part of managing expectations, and that's a large part of what we do - here in the Trenches.

Thursday, August 22, 2013

A Gambler?

I was in a custody mediation yesterday with one of my favorite mediators.  As he normally does, he told a story of one of my favorite judges, James Ryan.  What he said was that every time Judge Ryan would take the bench in a custody case, he would first ask each parent individually whether they loved their children.  Of course, the answer was always "yes."  He would say then that he didn't love their children, and yet they were asking him to make decisions about their children's lives.  That's powerful and true.  When you tell that story to clients, most of them stop and blink.  No matter how many times we here in the Trenches tell them that, they don't really seem to hear us, but when the story is about a judge, they snap to attention.  I don't know of many parents who really want a judge to make their parenting decisions, but there are a few.  Those are the folks who expect the court to hear their story, decide that they're right, and give them what they want, even after everything we do to disabuse them of that notion.  If I've said it once, I'll say it 100 times - life is not fair, and the court system is part of life.  Going to court means you lose control of the outcome, and are rolling the dice that another human being with different experiences than yours, will view the same information and come to the same conclusion as you.  Odds are not good that will happen, and you don't know until the Judge makes the decision.  Isn't it better for your children that the people who love them make the decisions about their lives?  Here in the Trenches.

Monday, August 19, 2013

Back To School

I admit it - I have a back to school mentality.  No spring cleaning for me.  Nope.  I clean when it's time to go back to school.  I don't have children in school anymore, unless you count my son who is a high school teacher.  Still,  the end of summer brings out the need for cleanliness, order and a clean slate.  This weekend, I decided to tackle my utility room.  You know what room that is.  It's the room where I used to have my sewing machine, where the children finger painted, where I keep my suitcases and Christmas decorations, as well as everything else for which I couldn't find a home.  I know I bit off a lot, but it is back to school.
At any rate, while I was organizing and purging, I came across a box of papers.  Not just any papers, but letters written to and by my son when he was at summer camp while his father and I were still married.  There were letters from me, from his father, and from my son.  They told a story of a happy time in our family, and they made me smile.  That's right, smile.  It was nice to remember.  I guess that's why I don't understand people who cut their former spouses out of family pictures, throw out all memorabilia that is from them or relates to them.  Don't for one minute think that my divorce was any better or easier than anyone else's, because it wasn't.   Think about it though.  Would you rather think that you wasted 10, 15, 20 or more years on something that was just terrible all the time, or would you prefer to know that there were good times and fond memories in that stage of your life?  Maybe you won't at first, when the pain is too great, but eventually you'll cherish those fond memories.  I don't know about you,  but life is too short to think you lived a large percentage of it in misery.  Here in the Trenches.

Thursday, August 15, 2013

How Hard Can It Be?

Most of my clients are adults - at least chronologically.  So, why is it that so many of them are incapable of handling basic tasks?  It's not my child support that's screwed up.   So why is it I have to call Child Support Enforcement to fix the problem?  I give them the number.  I tell them who to call.  If they don't want to call, I give them the address.  Yet, time and again, my office is the one that makes the call.         Bank Statements?  Same thing.  Oh, credit cards?  Yup, you got it.  MVA records, Social Security Statements and tax returns.  All the same.  Things that can be handled with a simple phone call by the clients themselves are far more complicated when someone other than the client calls.  The institutions want lots of identification, they want subpoenas and court orders from us that their own customer doesn't need.  We tell clients this.  Some of them are too overwhelmed to do it themselves.  It's an emotional time for them, so we understand.  Some don't know the right questions to ask and get too confused.  Again, we get it.   Others, however, just don't want to be bothered.   You can tell which ones they are, and we're not so understanding even though we do it.  Here in the Trenches.

Wednesday, August 14, 2013


Marriage is a dance for two.  You can look like Ginger Rogers and Fred Astaire.  You can look like you're playing Whack-a-Mole.  As long as each partner dances their part, it works.  You can't have both dancers trying to lead at the same time.  One of you can't become dead weight and the other have to drag you around.  You can't sit on the sidelines and say you're part of the dance.  You have to get in there and dance with your partner in any way that works.  Face it, marriage is like dancing:  it takes both partners working at it for it to work.  You don't have to be alike.  You don't have to share every interest.  You can be a morning person and your partner can be a night owl.  You can be a sun worshipper and your partner a snowboarder.  It doesn't matter so long as you both work at making it work.  Otherwise, you and your dysfunction see me.  Here in the Trenches.

Tuesday, August 13, 2013


We interred Dad in the military cemetery on Friday.  The service took all of fifteen minutes, but it was the most powerful fifteen minutes of my life.  It consisted of the unfolding and refolding of the flag, the presentation of the flag to my Mom, and the playing of Taps.  That's it.  It blew me away.  It drove home the finality of Dad's death.  It also got me to thinking.  We have rituals for all kinds of things in life.  We have christenings, Brisses, and baby namings.  We have Bar and Bat Mitzvahs, Sweet Sixteens, and Quincieras.  We have graduations, baby showers, bridal showers and weddings.  Just so you don't think all of our rituals are for happy things, we also have funerals.  What all those things have in common is that they are rituals to mark rites of passage.  Why then don't we have any for divorce?
If we did have a ritual for divorce, what would it be?  I would light two candles from one.   Maybe there could be a short service, a release of the vows and a wish for peace.  I'll have to think about it.  Here in the Trenches.

Wednesday, August 7, 2013

Silence is Golden

Sometimes, it's better to say nothing.  I was in court last week with a new opposing counsel (the client's third lawyer), and my client.  The Master asked us about the issues, and the new attorney was off and running.  She asked for a child's best interest attorney for the almost 17 year old child.  The Master asked whether that attorney had been paid on the last go round, and I said my client had paid her share, but the other side had not.  The other attorney didn't deny this fact, just kept pushing for the attorney to be reappointed.  As you might expect, the Master was not inclined to sign that attorney up for involuntary servitude, and the attorney was not offering any funds up front.  Her client simply wanted what he wanted.  What was I doing while she was on her tear?  Standing there quietly.  The Master did not reappoint the attorney.  I showed up at court 5 days later, and the Sheriff who was on duty in the courtroom that day commented on how that other attorney just was bound and determined not to let me get a word in edgewise.  I smiled and said that sometimes it's better to say nothing.  The Sheriff smiled and agreed.  I bet the Master did too.  Many times, the attorney who is all bluster and spitting fire is not the winner at the end of the day, and not the winner in the legal and judicial communities.  In every legal community, the members know to which lawyer they should attend when they speak.  They also know which members are full of piss and vinegar and that their diatribes should be either ignored or taken with a grain of salt.  Newcomers may worry when they are the object of the latter's scorn, and fear for their reputations in the community, but they needn't fret.  It's not as bad as they think, especially to those in the know.  Good works in the community and fair dealing with others win out in the end.  Here in the Trenches.