Thursday, March 28, 2013

Slow Down, You Move Too Fast

Sometimes, the best way to move forward is to move backward.  Sounds counterintuitive, I know, but it's true.  Think about it.  How many times have you known you're too tired to do something, but try to do it anyway?  Nine times out of ten, it doesn't end well.  Whatever it is, you don't do it very well, or you feel just darn awful afterward.  I know when I go out for a run when I don't feel like it, I never quite get the pace, I feel winded, and it's always slower than I'd like.  It would have been so much better if I'd have just curled up with a good book and run another day.  That's kind of how it is here in the Trenches.  Sometimes, you set meetings, and the day before something happens.  You talk to your client, and they're feeling nervous, emotional and dreading the meeting.  You could push ahead with the meeting, but usually that means that much of the progress you've made in the case stops, and in fact,  you regress.  Sometimes, your clients want to make decisions - NOW, even though they are in a raw state, unable to talk to their spouse without yelling, and lacking even the basic information necessary.  What did grandma say?  Oh yes, act in haste; repent at leisure.  Isn't it the truth.  At times, you need to slow down to move fast, and there's nothing wrong with that.  Here in the Trenches.

Wednesday, March 27, 2013

It's the Little Things

There are days when everything goes wrong, and then there are days when everything goes right.  Today was one of the latter.  They are so few and far between, that you just have to savor it.  First, last week I had a wee bit of a fender bender last week in the rental car I had while my own ancient chariot was in the shop.  I thought I was going to have to pay the deductible, but this morning my insurance company called and told me I have rental insurance, so it's all covered.  Wow!  Then, I finally remembered to send a photo of a piece of furniture in the office I wanted to donate to Second Chance (a great organization with a wonderful purpose), and lo and behold, they have a truck out in the area tomorrow morning.  Then, we had been going round and round gathering all the documents to finish up one of my client's cases, and today, with one five minute phone call and a quick email, we got the last one.  I had been struggling with the wording of one last clause to finish an agreement, and I woke up this morning, and it was suddenly in my head (and then down on the paper).  Sometimes, it's just the little things that make a day great.  Today was a great day.  Here in the Trenches.

Tuesday, March 26, 2013

Roll the Dice, Try the Case

I know I've said this before, but it's worth saying again.  When you try a case, the law is whatever the judge says it is.  It doesn't matter if the judge is dead wrong on the law, and will absolutely be reversed on appeal.  What happens in the courtroom is directly related to what the judge says the law is.  Let's go  with an example.  Today, I tried a custody case.  In an absolutely unusual situation, there was a statute that definitively supported  my client's position.  There was no question of interpretation - the law was clear.  The judge didn't care; the law didn't support what he wanted to do, so he interpreted it so it would.  I argued until my face turned blue; it didn't matter.  That meant we had two choices.  First, we could build a record for appeal, which I started to do.  Of course, we knew a few things:  first, that the chance that the court would postpone enactment of any custody order while the appellate court decided the appeal is slim.  Appeals can take anywhere from 6 to 12 months to decide, and during that time, the judge's order stands.  Second, we knew that at that point the judge's custody order would be the status quo, and even if the appellate court reversed the trial judge, the chance of the trial judge then deciding to change custody to what it should have been after the children had been living under the other custody order, was slim.  So, that left the second choice, which was to settle the case.  We had no other choice, if we had any chance of crafting a custody arrangement that in any small way met the needs of the children and the parents.  Settle we did.  It was annoying in that we had tried for months to settle the case, but the other side refused to negotiate.  In the long run, it was better for all that we settled, but it still rankles.  It makes you wonder why we work so hard to prepare for trial and know the law, when it doesn't necessarily matter.  All that time and money for nothing - it's not just the clients who get annoyed with that.  Here in the Trenches.

Thursday, March 21, 2013

The Trust Account

I  have to admit that I'm a sucker for self-help books.  I love them.  I love the quick chapters, the kernels of common sense , the positive outlook.  One of my first favorites was Stephen Covey.  I loved his  books.  I think I read  every one of them.  He said so many things that apply to the Trenches.  One thing he discussed was trust.  He talked about trust like making deposits in a bank.  In a relationship, we are continually making deposits and withdrawals from the relationship trust bank.  The funny thing about the trust bank is that each deposit is small, and so the balance in the account adds up slowly.  Then people make withdrawals, when they do things that destroy trust, the withdrawals are huge. It takes far less time to destroy trust than to build it.  Trust, once destroyed, is hard to regain.  Isn't that the truth?  So much of what we see here in the Trenches can be traced back to the trust bank account of the relationship.  By the time our clients reach us, the balance in the account is low, the desire to make deposits is low, but the need to work together to survive going forward is high.  Not a good combination.  That's when another of Covey's quotations springs to mind:   “It is one thing to make a mistake, and quite another thing not to admit it. People will forgive mistakes, because mistakes are usually of the mind, mistakes of judgment. But people will not easily forgive the mistakes of the heart, the ill intention, the bad motives, the prideful justifying cover-up of the first mistake.”   A sincere apology goes a long way toward rebuilding trust.  A apology is all the more powerful at a time in which it is the most difficult to say, such as during a divorce or other legal dispute.  Apologies are hard - it is not easy to admit you were wrong, especially when that admission could be used against you.  It takes a brave person to make a sincere apology during a legal dispute.  The effect is priceless.  Are you brave enough to say you're sorry and really mean it?  I hope so.  Here in the Trenches.

Wednesday, March 20, 2013

Break Out the Violins

Sometimes it's hard to work up sympathy for our clients.  It's not that we don't like them or that we don't think their case has merit.  We believe in their positions and we will put them forth forcefully.  There are just a few things we don't understand.  Why do they grab defeat from the jaws of victory?  Why do they get what they want and then throw it away?  Why do they let their now ex-spouse push them around?  Of course, then there are the clients who think that if only they could just sit down in a room with their spouse, they could work all their issues out.  They ignore the fact that their spouse doesn't trust them, they were never able to talk, and their spouse doesn't agree with their point of view.  Then, when things go wrong and don't go the way they want, they call us and want us to fix it, to make it all better.  That's when we have trouble with the sympathy.  It doesn't mean we don't understand.  We know old habits are hard to break.  Dysfunctional ways of relating are sometimes the hardest to change.  We get it.  We feel for them.  (We feel more for the ones who are trying to change the pattern, but we still care.)  It can be frustrating,  however.  Not only are we fighting for our client's cause, we are also fighting our client's nature and behavior.  Sometimes, it makes us want to scream.  Here in the Trenches.

Tuesday, March 19, 2013

Can We Dance?

There are days I look at this screen and wonder why exactly it is that I've committed to writing this blog.  It's especially hard when life is crazy, the cases overwhelming, this darn cold hanging on, the weather cold,....Well, you get the picture.  Still, I've made a commitment to this, and I'll be darned if I won't keep it.  Guess it runs in the family.  I went home this past weekend to see my folks.  Dad is doing a bit better.  Thank you for asking.  It's so hard to know what helps and what doesn't because he doesn't talk.  What they're doing now is good.  He's smiling and follows what's going on around him.  Mom is getting out more, and having more of a normal life.  I say more of a normal life, because her normal has changed forever with Dad's decline.  In fact, she wrenched my heart when she told me that her greatest fear was that something would happen to her while Dad was still alive, because her job's not done yet.  You see, as I've said before, Mom is much younger than Dad.  She knew the day would come where her main job was to take care of him,  It's part of what she signed up for when she married him (my Mom was pretty mature for a young thing in her early 20s).  Part of her commitment to him and to this marriage was caring for him in his old age, in making sure he was cared for in his own home and having as normal a life as possible for the rest of his life.  Her fear is that she won't be able to physically follow through on her commitment.  What's funny is that Dad was just like that, back when he was able.
As I look at them and wonder at the success of their marriage, what I see is two people who know how to dance.  To dance well, one person has to lead and the other has to follow.  If you've ever seen two people try to lead, you know all you have is a funny looking dance in which no one is having any fun.   When I was little, Dad seemed like the dominant one in their relationship.  Mom stayed home and raised us (no easy feat - we were not easy children).  Mom always used to joke that no one knew who she was, other than as Dad's wife, and in fact, when he wasn't around, folks couldn't seem to place her.  Well, the children grew up, as children usually do.  Mom and Dad's relationship changed as well.  Mom began, with Dad's support, to get more involved in the community and in causes for which she felt passion.  Soon, it was Mom, and not Dad, who was chairing committees, being president of organizations.  Then, it was Dad who became known as Mom's husband, and not the other way around.  The best thing about it was that it was Dad who supported Mom in all of this, in much the same way Mom supported him when they were younger.  Dad was just as proud of Mom's accomplishments as Mom had been of Dad's.  My parents understood that each of their accomplishments shone on both of them, and when one of them succeeded, they both did. I can't say their dance was always perfect, but it usually looked pretty good from where I sat (and sit).  Dancing is a lost art.  Too bad most of our clients never learned how.  Here in the Trenches.

Wednesday, March 13, 2013

I'm Thinking of a Seven Letter Word.....

Right now, we have any number of soon to be former spouses who we can't stand.  You'd think it would happen more often here in the Trenches.  After all, our clients are divorcing them, and we like our clients (for the most part), so we must dislike the other spouse.  Right?  Wrong.  Usually, we understand that there are two sides to every story, and to most stories, neither side is completely without merit.  Most people we see in the Trenches, whether they are our clients or their spouses, are fairly decent people who have made poor choices, are flooded with emotions and need guidance to move on. Most of them are not people who take pleasure in their former partner's pain.  Except right now.  We have three or four clients whose spouses are acting in truly heinous ways.  They are not flooded with emotion; rather, they are cold and calculating and looking for any way to inflict maximum pain upon their spouse.  We understand they don't want to stay married.  We're sure that hurt was inflicted on both sides.  We know everyone feels wronged.  It's normal to feel angry and want revenge.  There is a point at which those feelings should pass.  For these folks, that point is long gone.  Their anger and need to destroy their spouse is not normal. They get pleasure out of debasing their spouse.  Unfortunately for them, debasing our client means those of us in the Trenches have to go to greater lengths and fight harder to help our client struggle back to even ground.  Their spouse is never quite so pleased with their selves at the end.  Fighting for equity is what we do - here in the Trenches.

Tuesday, March 12, 2013

The Dirty Words in Family Law

Finally back to good health (it took long enough!)!  Unfortunately, today's theme is domestic violence, and coercive control.  Three different situations.  In one,  the husband followed the wife to a shopping center parking lot and engaged in a fist fight with the man with whom she was talking.  In another, the husband withheld financial support, so that the wife's car is in danger of being repossessed and the house is in danger of foreclosure, while buying the children new electronics and pets; and took out credit cards in the wife's name and charged tens of thousand of dollars without her knowledge.  In the third,  the husband and wife were each rushing to grab a piece of financial "evidence", and the husband knocked the wife into the wall.  In which case was domestic violence present?  All of them.  In which of these cases was coercive control arguably present?  All of them.  In which case was the behavior actually coercive?  Only the second.  In the first and the third cases, it turns out the violence was episodic, an isolated incident which was born of the high emotionality of the impending separation of the parties.  The acts were violent, yes, and required the cooling off period and protections that the domestic violence and peace order statutes provide in order to ensure everyone's physical safety, but they were not for the purpose of intimidating or influencing the other to act as the violent partner required.  The purpose of the actions described in the second example were to browbeat, intimidate and financially blackmail the other spouse into towing the party line by punishing her when she deviated.  Its purpose was to control her actions and reactions.  It's been very effective, and has isolated the wife physically, financially and emotionally.
Any act by an intimate partner that controls the action of the other partner can be coercive.  Whether it is, in fact, coercive, depends on the relationship between the parties and the reasonable reaction of the recipient of the behavior under the circumstances.  Violence is sometimes coercive and sometimes it's simply dangerous.  The difficulty is that we all know what physical violence looks like.  In fact, most of you would probably have guessed that examples one and four were domestic violence.  How many of you would have guessed number two?  Yet, of all of the above examples, number two is the most frightening because the violence is invisible to the public at large.  No one would believe this woman is abused, and the husband explains away her fears and accusations with plausible but untrue stories.  She looks crazy.  She's financially dependent upon him, yet he withholds her basic needs, but presents to the world as a generous father.  There are no bruises, yet her behavior is controlled as certainly as if he had twisted her arm behind her.  It's not just women subjected to this kind of control - men can be as well, and I've seen it.
How did all this come up?  Well, we were planning the final project for our law school class and had a discussion over what fact pattern we could use that would raise the issue of domestic violence/coercive control without being enough to foreclose the collaborative process. Our discussion drove home the fact  that the type of violence and the length of time since any violence is not enough to determine whether coercive control is a factor in a relationship.  Neither is the absence of physical violence dispositive on the issue of coercive control.  Rather, it is all the facts and circumstances in the relationship and the effect on the partners that determines whether coercive control exists and the hold it has on the partners.  The wrong conclusion can spell disaster for our client - physically, emotionally and financially.  It's not an easy determination, but one we make every day - here in the Trenches.

Thursday, March 7, 2013

Everything In Its Own Time

 I have a case I need to settle before Monday's trial, so off to the office I went.  I still didn't feel well, and given my druthers, I really could have used another day in bed, but I had no choice.  The funny thing is, once I got to the office, I started to feel better.  It's not that what I was doing was so scintillating, because it wasn't.  In fact, I started to fell so much better that I even took the puppies for a walk when I got home.  I still have my cold.  I'm still coughing and hacking, and physically, I'm only slightly improved from yesterday.  Yet, I feel so much better.  I started to think about why.  Well, for starters, I had a change of scenery.  True, my bedroom is quite lovely, but after 4 or 5 days, the view is old.  Second, I was around other people.  Not a lot of people, but a few.  Third, I had something to do besides count the seconds between coughs.
It's very lonely going through a divorce.  The world as you knew it has crumbled and is lying in pieces around you.  You know the pieces will go back together, albeit in a slightly different way - eventually.  Right now, it hurts.  It's so tempting to just stay home and be alone with your pain. Most people do - at least for a while.  It feels comfortable.  You think you're doing better, not much better, but better.  Maybe if you just keep to yourself a few more days....then a few more days.  Eventually, you decide to go out and be around others.  Wow.  You start to feel so much better, so much faster.  Why didn't you do this earlier?  Frankly, even though you now feel so much better, you couldn't have done this earlier. Like my cold, you needed a time to rest, for your body and mind to begin to heal, before you could take yourself to the next step of rebuilding your life and your relationships.  Life is like that, whether it's our bodies or our minds, everything has to progress at its own pace.  You have to feel the pain before you can heal.  Embrace it, but not for too long.  We miss you.  Here in the Trenches.

Wednesday, March 6, 2013

What's With the Weather?

Weather forecasting is not an exact science.  I sure hope that wasn't a surprise to anyone.  Actually, it's amazing to me that forecasters get it right so often.  Sure, you can see a weather pattern and know, based on experience, what it should do.  If it were only that easy.  Every weather pattern is affected by factors unrelated to the pattern itself.  Is there a low pressure system coming in from the south? The north?  What about a high pressure system?  Has the humidity been unusually high or low?  What about the ground temperature?  Is the ground retaining more or less heat than usual?  All of these things, plus probably the alignment of the moon and the sun and the stars, affect weather patterns.  Yet, we expect forecasts to be accurate.  Such was the case today, the date of the great snowstorm of 2013.  Governments closed, schools were cancelled, offices closed - for 1 -2 inches of snow, almost none of it sticking to the roads.  What a bust.  It gave me another day to recuperate (and to cage some homemade chicken soup), so I'm not complaining.
Weather forecasting reminds me of the Trenches in so many ways.  (Of course it does, otherwise, why talk about it here?).  Clients ask us all the time to predict what the judge assigned to their case will decide.  They want us to tell them if this is a father's or a mother's judge.  They want to know how the judge feels about adultery.  Does the judge believe in joint custody?  How will the judge view their significant inheritance? We can tell them generally how the judge has ruled based on other cases before that judge, and based on what our friends in the Trenches have told us are their experiences.  We can make assumptions, like the weatherman, about what the judge will do in the future based on those cases and things the judge has said in the past.  Based on those assumptions, we can tell the client what might be the range of the judge's decision.  We preface any such statement with the statement that we don't know what the judge will do in this particular case, or whether we will even have this judge come day of trial.  Our client or their spouse could remind the judge of their beloved relative....or the black sheep of their family.  Maybe the judge had the same kind of issues with money that our clients have, and have strong ideas about a solution.  Maybe the judge had a terrible experience with the result of his or her last trial and is anxious not to repeat the experience.  In other words, with judges, like the weather, there are a lot of variables that have nothing to do with the case at hand, but which will influence the decision.  So, when a client asks us to predict what their judge will do, think of the weather.  Here in the Trenches.

Tuesday, March 5, 2013

Sniffle, Snuffle

I have the flu/ cold, or whatever it is that is going around.  I am one of the top five worst patients in the free world, of that I am firmly convinced.  You see, I am almost never ill.  I believe the last time was about five years ago.  So, when I do catch something, I am pitiful.  I snuffle, I moan, I ask for soup and hot water bottles and teddy bears.  I even sound pathetic.  My voice is raspy, I cough a lot, and just generally sound awful.  I hate lying down doing nothing (which is why I'm sitting here doing my blog).  I'm miserable and want tea and sympathy.  Because I am almost never sick and because I never stay sick for long, I usually get it.  All the "poor baby" and "feel better"  make me actually feel better.  I feel not so alone.
As I was lying here in my sick bed, I started thinking about how being sick is like our clients here in the Trenches.  Most of them have never been through a divorce or a custody fight.  It's unpleasant.  They feel lousy.  So, they complain about how lousy it is and how awful they feel.  They tell everyone.  At first, they get a lot of sympathy.  Everyone feels bad for them.  It makes them feel better to know they're not alone.  Unfortunately, their family law matter lasts way longer than the cold or the flu.  It doesn't mean that the need for validation, for sympathy, for support or for understanding goes away, because it doesn't.  As the family law matter hangs on, however, our Greek chorus gets tired.  After all, how many "poor baby" can you say before it feels either inadequate or stale?  It is at this stage when the family law matter becomes more like a chronic or terminal illness.  The patient knows the strategy has to change, and they need more and different from what they needed when the illness was new or less serious.  They need friends who just show up.  Friends who bring food.  Friends who bring a movie.  Friends who give a ride.  Friends who just stop by.  You see, it's easy to say all the right things to people when what's the matter isn't serious or lengthy.  It's quite another thing to be there for the long haul.   At the end of the day, what kind of friend would you want?  What kind would you want to be?  Here in the Trenches.

BTW, today is both my Faher's 92nd birthday and the 11 month anniversary of our losing our Office T.  Happy birthday Daddy.  We miss you Curtis.