Wednesday, July 31, 2013

Playground Rules

I don't know about you, but when I was little and something happened to me, I would tell my mommy that it wasn't fair.  If your mom was like mine, she would say that life is not fair.  Life is not always fair.  Sometimes the bad guys win.  Sometimes, the people who abuse the system never get caught.  The folks who don't pay their child support never do.  The lousy parent gets custody.  The financially irresponsible person is never made to answer for his or her actions.  It happens.  That's life, and it's not going to change.  No, it's not fair; it just is.  You can sit there and scream about the darkness, or you can go get a candle and light the darn thing.  Your choice.   To put it another way, do you want to be a victim, or do you want to do something to help yourself?  If the latter, we're happy to help.  Here in the Trenches.

Tuesday, July 30, 2013

What Do I Need?

You have to keep the eye on the prize.   That ability is the mark of a good advocate.  I can go to court and win your case for you, but "winning" may get you something that makes you miserable.  It's far better to figure out what you need, and find a way to help you get it.  I know, this seems completely obvious, but when you're in the Trenches and feeling embattled, it's very hard not to want to just fight and win.  Part of what we do in the Trenches is help our clients develop their vision of what they want their life to look like into the future.  Then we work backward to strategize how to make that happen.  Sometimes that means battling it out in court, but usually it doesn't.  Sometimes, it means making a strategic surrender.  Sometimes it means engaging in creative negotiation and strategy.  The point is, it's the prize that drives the method, and not the method that determines the prize.  Here in the Trenches.

Monday, July 29, 2013

A Time to LIve

It's funny, but I didn't realize how stressed I have been for the last year and a half, as my father became more infirm, and my mother had to cope not only with caring for his needs, but also with the loss of the man who had been her husband for over 50 years.  I thought I was handling things really well.  Sure, I was flying to Florida every 6 weeks or so.  Well, yes, I did feel exhausted all the time.  Certainly, it was a real effort to concentrate.  That was all because the office was busier, we were moving, the cases were crazier - right?  Turns out, the answer was "wrong."  Dad died 3 weeks ago today.  I miss him terribly.  I am grieving and it hurts.  I feel the rush of raw emotion periodically every day.  I still worry about my mom and her grief.   Strangely enough, however, I feel good.  My mind is clear.  I feel more organized.  I am almost back to feeling on top of everything, for the first time in a few years.  I want to talk to people.  I didn't realize how large a toll the last few years have taken until I started to come out from the fog that was created by the physical and emotional stress.
Gosh, doesn't all this sound like my clients here in the Trenches?  No, they don't have a dying father; they have a dying marriage.  They are in pain, and there are a whole lot of other people about whom they worry.  Will their children be OK?  How will their children handle the loss?  Will their children adjust to their new reality?  They are concerned their lives will never be good, much less great.  They are flooded with pain and worry.  It affects all parts of their lives.  They struggle to concentrate.  They forget appointments.  They don't want to attend happy events.  They just want to crawl into a hole and come out only when they have to do so.  Then, one day, usually after the divorce is final, they wake up and feel.....good.  They have energy to face the world.  They feel hope and positive about the future.  They feel like themselves.  Certainly, they still mourn the loss of their marriage, but they realize that their children are OK and that their life will continue, perhaps even better than before.  They are through the active part of their grief, and their bodies and minds tell them it is time for them to get on with life, the life that we helped them create.  Here in the Trenches.

Wednesday, July 24, 2013

People Like Me

Mine was not the only father to die in the last few months.  Once people found out about my dad, I learned about all kinds of colleagues who have lost their fathers.  It sort of feels like an epidemic, even though it's just an inevitable part of our all growing older.  Isn't that how it is here in the Trenches?  When you're happily married, you almost never hear of people you know getting divorce, but when you're getting a divorce, it seems like divorce is rampant.  I wonder why that is.  Is it because when you're happy in your marriage, people who are divorcing don't feel comfortable sharing their news, and of course, when you're divorcing you're one of the gang?  Or is it that we unconsciously seek out people who are like us, and like us can refer to marital status as well as any other similarity?  I don't know, but what I do know is that everyone's parents seem  to be dropping like flies.  Here in the Trenches.

Tuesday, July 23, 2013

"Swift " Legal Action - Hardly

Speedy trials exist only for criminals.  There, I said it, and boy do I feel better.  My clients?  Not so much.  The reason speedy trials exist for criminal matters is that if you're going to deprive someone of their freedom, and possibly do that pending trial, then you need to get on with it. That way, if the person's found not guilty, they can get on with their lives, and if they are, well we get them off the street faster.  I know, in the Trenches, clients feel like they're going through the same thing, but the law draws a distinction between emotional and financial prison and literal incarceration.  What that means here in the Trenches is that justice is not swift, at least not how you would define it.  Those of us who toil here are thrilled that the State requires that family law cases be completed within a year of filing them - this is such a change from how it used to be, when you could be lucky to finish a case in eighteen months to two years.  To our clients, this year seems like an eternity; they feel like they're sentenced to live in legal purgatory as the wheels of justice grind slowly forward.  The glacial speed of litigation is one reason we urge clients to use alternate methods to resolve their disputes - mediation, collaboration, negotiation.  These methods may not be speedy, but in most cases, they're faster than going to trial.  They have the added advantage of allowing the parties to craft their own results rather than have someone decide what happens to them.  Clients, however, don't understand all this and they imagine that trial would be faster and fairer.  It's not, but they don't know the truth.  It's up to us to teach them.  Here in the Trenches.

Monday, July 22, 2013

It's a Boy!

The Duke and Duchess of Cambridge have a boy! Congratulations to the new parents.   Even though they have every advantage and endless resources, they're just like new parents everywhere.  Children are overwhelming.  They want their parents' attention constantly.  They sleep when their adults are awake and are awake when their adults want to sleep.  Everything revolves around them.  Everything.  When children are young, it's hard for their parents to maintain, let alone improve, their relationship.  They're too tired for dinner out, for conversation, for sex.  They're tired.  They forget what brought them together in the first place.  They begin to define themselves in terms of their roles, at work and in the family.  The couple part of them gets lost.  For the successful couples, that part is just taking a little vacation.  Once the munchkin is able to be a little bit more predictable and a little less needy (and they get a little more sleep), they are able to reconnect as a couple and navigate both roles.  For others, the  "couple" took a hike and never came back.  These are the people we see here in the Trenches.  These couples forget what brought them together in the first place.  They see only the here and now, and forget their past and can't envision the future.  Because they can't remember what it was like before children, they aren't willing to put in the effort to reinvent their relationship as a couple.  Then, if something goes wrong with the children, or they simply grow up and leave home, there's nothing left.   That's when they come to see us - Here in the Trenches.

Wednesday, July 17, 2013

Tuesday, July 16, 2013

Justice Anyone?

"It's called a Judicial Center, not a Justice Center."  Don't you love that?  No?  Well, me neither, but it's the truth.   What's dispensed at the Judicial Center is not necessarily justice, but what the judge says it is.  It really stinks, especially when the judge doesn't dispense justice to your client, but rather dumps it on them.  It really really stinks when your client is a nice person who has always done the right thing, for the right reasons.  I hate when nice guys finish last.  So, how did this happen when the evidence seemed to be obviously in his favor?  This is the part that clients don't understand.  I tell them all the time, that the story and the evidence are only part of what happens in the courtroom.  In the courtroom, the judge also observes the parties, the attorneys and the witnesses.  That observation isn't just to determine whether someone is telling the truth.  It is also for fact finding.  That was the case today.  We had an expert that said one thing about one of the parties, but when the judge observed that party in the courtroom, she decided to discount what the expert said because of what she observed about the party n the courtroom.  The judge based her entire decision on that observation.  That's why it is so hard to win a family law appeal - the appellate court regularly defers to the trial judge because the judge observes the people in the courtroom and discerns information not apparent from the written transcript.  That information can color how the judge views all the other evidence, and the appellate court knows it.  Managing that information is difficult and there's an art to it.  It's why not just anyone can be a good trial lawyer.  Here in the Trenches.

Thursday, July 4, 2013

Rules of Thumb

My favorite bloggers have some gems this week that pertain directly to the work we do here in the Trenches.  As you know, I love Gretchin Rubin's, The Happiness Project blog, which is based on her book of the same name.  Yesterday, she talked about 5 common mental rules of thumb, and how those rules of thumb can cause us to incorrectly interpret the data our senses take in.  There's the recognition heuristic, the likelihood heuristic, the anchor and adjust heuristic, the fluency heuristic and the social proof.  I'm not going to talk about all of them, as Gretchen such a good job, and if you click on "5 common rules of thumb" up above, the web will take you right there.  The point is that here in the Trenches, all of those rules of thumb come into play with our clients and their ability to interpret data.  When you add the overlay of emotion we see here in the Trenches, what you have is a real interpretation mess.  Nowhere do we see that played out more often than with the "social proof."  That rule of thumb says that if "everyone" is doing it, it must be right, better, best.  Not only is that not true in real life, it is especially false here in the Trenches.  Just because a friend or neighbor got lifetime alimony, had a bad experience with lawyers, or was awarded full custody, doesn't mean this client will get those results.  Every case is different, from the facts of the client's life, to their personality and that of their spouse and children, to the interplay of the personalities of the clients, lawyers and judges, to the effect their friend and family witnesses have on the judge.  All those variables make it impossible for a lawyer to give a client any more than a rule of thumb as to what might happen in their case based on similar cases before.  That doesn't stop the client's mental rule of thumb from continuing to add layers and "facts" to arrive at an expected resolution.  Understanding the client's social proofs and successfully working with them and around them is a large part of what makes a good lawyer - here in the Trenches.

Wednesday, July 3, 2013

Move Along

Today was an interesting day along the Trenches highway.  I had speeders - those who are done with the marriage and are racing toward the day they can be divorced.  Unfortunately, their spouse is stuck in the slow lane and her car is having trouble picking up speed.  I had folks in the slow lane, desperately trying to keep their spouse away from the off ramp.  I had another driving along in the middle lane, completely unaware of all the cars on each side, some moving quickly and some slowly.  She was also oblivious to the fact there are on and off ramps.  What they all have in common is that they're all traffic hazards.  The smooth flow of traffic depends on everyone moving at more or less the same rate of speed, obeying all of the traffic rules, and paying attention to the entrance and exit ramps.  Here in the Trenches, we're highway management.  Safe travels to all this holiday weekend.  Here in the Trenches.

Tuesday, July 2, 2013

Brother, Can You Spare a Dime?

I really feel very lucky.  Those of you who read this blog know that my father's health has taken quite a turn for the worse.  This week, I have to take an unexpected trip to see him.  I feel so lucky I have had my parents with me for so many years of my life, that my children have gotten to have a meaningful relationship with them, both as children and adults.  Right now, I feel lucky that I have had and have the opportunity for closure.  I am also so fortunate to have the friends I have in the Trenches.  Sure, a lot of time, we are on opposite sides of cases, but no matter what, we are friends and colleagues.  As I said, I have to fly down to Florida.  I thought I was going to have to fly down a few days ago.  In order to do this, I need someone to cover my cases.  I need someone to go to court for me on at least one occasion.  I called my friends in the Trenches.  It's the last minute.  It's a holiday weekend.  It didn't matter.  They responded - they were happy to help.  They rallied to my aid.  I'm so lucky to have their support.
I think about my clients.  I think about how much better their lives would be if they only had the support of their friends and family.  Some of them do; and some of them don't.  I can always tell which ones have meaningful support as they go march through the Trenches.  The walk is a little easier; their step is a little lighter; their recovery  and ability to move on is faster.  It doesn't take much to make a difference.  Here in the Trenches

Monday, July 1, 2013


The past couple of weeks have been huge ones in terms of Supreme Court decisions related to life here in the Trenches.  First, there was the Baby Veronica decision, then the Defense of Marriage Act and Proposition 8.  Despite all the hoopla surrounding these decisions, they're not really about family law.  No, really, I'm serious.   All of those decisions were based on constitutional mandates, and not substantive areas of family law.   The Proposition 8 decision didn't strike down Proposition 8:  the Supreme Court decided that the Petitioners did not have standing to bring their claim.  You see, in order for a court to decide a case, the person filing the case actually has to have been injured or aggrieved; and in this case, the Petitioners were simply members of the voting public and not actually directly affected in any way more that the general public by Proposition 8.   The Defense of Marriage Act decision wasn't about recognizing gay marriage:  the Supreme Court affirmed that the law of marriage and family was left to the states by the Constitution, and that once the states have determined that certain classes of individuals may marry, the federal government may not act to deprive them of rights granted to any other married couple.  There was also a subsidiary discussion of judicial power to determine the issue, akin to that presented in the Proposition 8 case. In other words, the DOMA decision is about separation of powers and state's rights, and only incidentally about gay marriage.  The DOMA decision is kind of interesting when you read it with the Baby Veronica case, which dealt with the federal Indian Child Welfare Act and adoption.  That's right, a federal statute governing family rights.  What's really interesting is that in the Baby Veronica case, Dad would not have been successful challenging the baby's adoption under state law - except for the fact that he was 1/125 Cherokee Indian.  You see, with ICWA, the federal government decided that the states have to give American Indians more protection in adoption matters than they give anyone else.  The Supreme Court did not find that ICWA was unconstitutional as usurping state rights in matters of marriage and family.  Rather, they found that under ICWA, Dad just didn't qualify to contest the adoption.  Confusing, isn't it?  It's even more confusing if you read the opinions.  I wish you would.  They are fascinating discussions of legal principles, and a demonstration of how brilliant legal minds can differ on questions of law and argue both sides persuasively.  Honestly, the concurring opinions and dissents are every bit as intriguing as the main opinions.  (Remember, these are all 5-4 decisions).   If nothing else, the opinions give you a taste of the art of lawyering, and hopefully a newfound respect for what we lawyers do - here in the Trenches.