Monday, May 27, 2013

Happy Memorial Day

While everyone is enjoying the first weekend of summer, please take a moment to remember why we have this long weekend.  Thank you to all of the service members who gave their lives for their country.  Thank you to all the service members who put their lives on the line every day.  Thank you to all of their families for supporting them as they supported our way of life and for understanding and bearing an unbearable loss.

Thursday, May 23, 2013

Monet, Renoir, Degas....Step Aside

So much of what we do in the Trenches is about perception and not necessarily reality.  I always tell clients that you never can tell what a judge will do.  Sometimes a witness gets under their skin. Maybe they remind the judge of their brother, who they can't stand.  Maybe the judge is in a bad mood.  Maybe the witness just rubs the judge the wrong way.  You can never tell, and it colors how the judge views the evidence and the witness.  It really doesn't matter why; it just is, and those of us in the Trenches have to deal with it.
In a like vein, it doesn't matter if the client is crazy, an embezzler, or an adulterer. Likewise, it doesn't matter if they were the perfect spouse or the perfect parent.  What matters is whether they can make the judge believe any of those things.   It's a broad strokes kind of thing, and if you do it right, the judge fills in the details.  Kind of like an impressionist painting. So many clients spend so much time on the details that they lose their audience and what they really want to say gets lost. because there's no big picture.
This whole perception thing doesn't just come into play in the courtroom.  It happens n day to day negotiations as well.  A client is asked for documents.  Maybe the request seems overwhelming.  Maybe the client is too busy to put a lot of effort into it.  Maybe the client doesn't think it's important.  It doesn't matter.  The result is that all of the documents don't get produced.  The other side doesn't know the client well (or maybe they know them too well).  They wonder why the documents aren't produced.  Being in an adversarial situation, the other side puts a negative spin on it.  They wonder what the client is hiding. Then, they become convinced that the client is dishonest or out to screw them.
Most clients don't understand the power of perception and the importance of managing it.  They think the truth will prevail.  It will, but only if the decision makers can hear it.  That's why we manage perception; it opens eyes and ears.   Now if only the clients would stop fighting us when we try to help them do it.  Here in the Trenches.  

Tuesday, May 21, 2013

Working for the Day Care

Let's talk child support.  I had a child support hearing today.  My client had given up two of his three jobs so that he could spend alternating weekends with his 3 year old son.  It represented a huge drop in income for him, but he figured the trade off was worth it.....until his son's mother filed for child support.      He grosses less than $3,800 a month, and brings home about $2,500.  His child support is almost $1000 a month.  How can that be possible?  Well, mom earns over $5,000 a month. but that's not why child support was so high.  Monthly day care is over $1,000 a month.  Yup, that was the killer.  My client's child support was only in the $600 range, until you added in his proportionate share of the day care.  The fact of the matter is that it costs a lot to raise a child, but even more to care for them so the parents can work.  It's really a vicious cycle, especially with very young children, whose day care costs more.  On the one hand, mom and dad need to work.  On the other hand, they have to work about one week of the month just to pay someone to watch their child.  That's one reason why, when some child support paying parents complain that their child's other parent isn't working enough at their minimum wage job, if they don't have the children in day care, most of us here in the Trenches would tell them to stop complaining.  A full time minimum wage job with children in day care would create a higher child support number simply because of the day care.  That's the quandry, isn't it?  Can you imagine what child support would be if day care providers were paid what they are really worth?  No, I don't want to either, but that's another topic for another day.  Here in the Trenches.

Monday, May 20, 2013

Feast or Famine and Utter Chaos?

Why is it that here in the Trenches, it is either feast or famine?  I don't just mean with clients and work, although that's part of it.  I think one minute of one day I reached equilibrium in everything - and then I blinked and it was gone.  We either have new clients coming out of our ears, or none at all.  Either all of our clients pay their bills in full, or almost no one does.  We settle all of our cases, or they all seem to go to trial.  We either move into our new office or everything takes way longer than we thought.  Oops!  How did that last one sneak in?  We finally have building inspection approval, and the use and occupancy folks think it's great idea to make us wait as long as possible to receive a certificate of occupancy.  I figure I'll eventually move into my space.  The difficulty is that with all these new clients and contested cases and no place except my home office to call my own, the chaos feels multiplied.  It's not that things are any more or less chaotic than ever, but being homeless, so to speak, makes it seem so much more topsy turvy.  Lacking that physical anchor of a set geographic location makes me feel asea without a compass.  I never realized how much having order somewhere, no matter how small a place in my life, is so vital.
Isn't that so like how our clients feel here in the Trenches?  Their lives are turned upside down emotionally, financially and physically.  Chaos in any one of these areas would be enough to unsettle most people, and for our clients here in the Trenches, all three areas are in disarray.  Without an anchor in any one area, they have trouble navigating the rest of their lives.  For some of them, what they need is something so small as cleaning and organizing a closet or a desk.  They just need something they can control and on which they can impose some semblance of order.  From that one small victory over chaos, clients can begin to feel hope that their lives will become predictable and make sense again.  It's not much, but it's everything, and it makes the difference between moving on successfully or imploding fantastically.  Here in the Trenches.

Wednesday, May 8, 2013

Don't Tell

It is the end of the first semester of teaching collaborative divorce at the University of Maryland School of Law.  We're busy evaluating the students' final simulations of meetings from a collaborative divorce (12 hours of simulations - what were we thinking?).  When we first devised these simulations, we thought we were evaluating our students.  Certainly, that is one of the things we're doing, as our students expect to obtain a grade.  What is more educational from this evaluation process is seeing how well we taught what we wanted to teach.  What we've found is that we generally did a very good job of teaching collaborative divorce.  There were a few things we need to do differently.  What exactly we need to change is patently obvious.  The biggest struggle for our students struggled was understanding privilege and confidentiality in the collaborative process.  That issue is complicated and bears discussion.
Most people have heard of attorney-client privilege.  They know, from TV and movies, that when they meet with a lawyer, anything they say to the lawyer cannot be repeated to anyone else.  The privilege belongs to the client, not the lawyer.  The rules related to privilege mean that the lawyer cannot tell ANYONE anything the client tells them unless the client gives informed consent to the revelation.  Collaborative practice does not change those rules.  Even though the process is transparent, even though the parties agree that they will reveal anything that is relevant and necessary to reach a durable agreement, that doesn't mean that there is no attorney-client privilege in the process. There certainly exists such a privilege, and that creates a tension in the collaborative process.  Even though the client's refusal to waive the privilege to reveal a material fact could cause the lawyer to withdraw from the collaborative process, that doesn't meant that making the revelation is a fait accompli.  It is not.  When faced with a secret, the lawyer's job is to work with their client, to explore the "secret", to discern the reason the client does not want to reveal it, to educate the client why the revelation is necessary and explore what effect the secret would have, not only to the collaborative process, but also to the existence of a durable, acceptable agreement.  Finally, the lawyer needs to work with the client on an appropriate way to reveal that hidden fact so that it can be placed in context and the client's needs and interests are protected.  Then, and only then, can the client give informed consent to reveal the confidence and the lawyer to share it.  It's the same whether we are in the collaborative process or in litigation.  Here in the Trenches.

Monday, May 6, 2013

Let's Just Bang Our Heads Against the Wall

When you put a few lawyers from the Trenches into a room, eventually the talk comes around to client control.  Most clients would shudder if they heard those words, as it sounds like they're being managed and told what to do.  Nothing could be further from the truth.  When lawyers talk about client control, what they mean is managing client expectations.  That process begins with the first client meeting and continues throughout the entirety of the representation.  Any attorney who stops midway is asking for trouble, and a client "out of control."  Here's what I mean.  From the first meeting with the client, the lawyer in the Trenches needs to do a few things.  First, they need to understand the client's story.  Second, they need to learn what the client wants.  Third, they need to help reframe what the client wants into global, wide goals.  Then comes the real management of client expectations; this is where the good lawyers are separated from the mediocre or ineffectual.  What you want in a good lawyer is one who controls the mechanics of the legal process, and who educates the client about the law, the possible interpretations a judge could put on the law, the probable applications the jude could make of that law to their facts, their spouse's story and positions, and reality tests what the client wants against what their spouse will agree or the judge would do.  Sometimes this work entails flat out telling the client they can't or shouldn't get what they want.  That is what a good lawyer does.
A not so good lawyer lets the client run the show, and decide what rules to follow and what not.  A not so good lawyer either never reality tests with the client, or gets tired of managing the client's expectations before the end of the representation (a.k.a. "they drop the ball").  The client of such a lawyer starts making just one unreasonable or unrealistic demand, and then when no one attempts to redirect them, makes more and more, until they believe that the impossible is probable.  By the latter part of the representation, the not so good lawyer realizes they need to move drastically to manage their client's expectations, but by then it's too late.  The client doesn't trust them, doesn't believe them and won't take their advice.  The client is out of control.  At that point, the client of the good lawyer, having been educated properly, believes that he or she needs to change their position to meet the unreasonable demands of their spouse.  Of course, that in turn, makes the job of the good lawyer that much harder, as they have to help their client hold their ground or to give small concessions when necessary and when they won't further empower the spouse.
So when clients ask me why I want a good lawyer on the other side of the case, maybe I'll tell them to read this post.  Here in the Trenches.

Friday, May 3, 2013

Stand By Me

No TGIF today.  The months of April and May are very hard for me and mine here in the Trenches.  Last month we mourned the one year anniversary of the passing of Office T.  Today, we grieve with one of our good friends here in the Trenches as she marks the second anniversary of the death of her husband, who was also far too young.  The interesting piece here is that I never met my friend's husband until he was very ill, and she (and her lovely parents and good friends) never met Office T.  The losses are obviously very different, as she lost her husband and the father of her children, and my loss was that of a friend, albeit a good one.  Yet, for all of that, we understand each other's grief.  That is the interesting part.  I feel my friend's pain, not because it is my own, but because it is hers and I care about her.  It hurts to see her suffer, to know the cause, to know the extent of the loss, and yet be powerless in its face.  I can't make it hurt less, ease her grief, wave my magic wand and make it all go away.  Neither can she do the same for me.  Yet, knowing that she would if she could and that she knows that behind the smile are tears somehow makes it all easier to bear.  I hope it does the same for her, and that all the identical wishes of those who care about her keep her afloat today.
Here in the Trenches, I often hear about friends who suddenly disappear when someone gets divorced. I hear about the friends who don't call, and don't come around anymore.  There are lots of reasons for that, and I'm not going into all of them.  Sometimes, people stay away because they don't know what to do or say in the face of extreme loss.  They're afraid they'll say the wrong thing, and they feel powerless in the face of their friend's grief for the loss of their marriage and the life they once knew.  So they stay away, because they think being there and saying nothing is worse than not being there at all.  Being there is what matters.  Keeping the vigil with them in silence is hard, but many times it is what is needed.  It takes a good friend to know that and to follow through.  Loss is hard enough; it's even harder to do it alone.
Girlfriend (and your wonderful parents), as we mark this day with you, you're not alone.  Here in the Trenches.

Thursday, May 2, 2013

Mutual Support

Another exhausting day.  Started work with an 8am phone call with my team in a new collaborative case, and ended with an 8pm phone call with the coach in another new collaborative case.  In between,  a colleague dropped everything to help me brainstorm, and one of my favorite retired judges called at 6:30pm and agreed to do a last minute mediation to help our client settle a case and avoid a trial on Monday morning.  I couldn't help but reflect, as I hung up on that last phone call, how truly fortunate we are to work within this particular family law community.  Our team in the first phone call struggled to develop a plan to really support our clients in a way to help them reach a durable agreement and maintain an effective parenting relationship for their adult children.  In the last call, we took time from taking care of our families to discuss our client to make sure we take care of her in our meeting tomorrow.  As for the judge, well, how many people would drop everything at the last minute to mediate a difficult case....on a Friday afternoon, much less call the attorney back at 6:30pm?  It doesn't surprise me, because I know how much this man cares about families.  My colleague knows I'd do the same for her (and I have) - because we care what happens to our clients.  In such a difficult business, we're blessed to be surrounded by professionals who care about people and love what they do.  Here in the Trenches.