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.

Tuesday, August 6, 2013

Just Play NIce - Please

Just a couple of years ago, I added parent coordination to my skill set.  It gives me a somewhat different view of divorces and families.  Here's the thing I just don't understand.  All of the couples I have seen in parent coordination had children together, obviously.  That means some part of them thought that the other would be a good gene donor or an acceptable parent.  While they were together, they trusted that the other would not harm the children and would parent in an acceptable manner.  Now, everything the other one does is suspect.  "They did it just to upset me."  "They said no because they knew it was something I wanted to do with the children." "They always hated my family."  "They're out to ruin my life."  What changed their attitudes toward each other as parents?  When I was only wearing my lawyer hat, I would have said that when love goes away, distrust rushes in to take residence.  Now that I'm a parent coordinator, I can say that is only part of the problem.  The real problem is that all of my parent coordination clients were in litigation.  They said horrible things about each other; made terrible accusations.  They can't take it back, they can't forgive and they can't forget.  How did they ever have children with this person who thinks so little of them?  How could they not have seen that the other parent was the type of person who would use their flaws against them, violate their trust in such a public way?  How could they have been so blind?  How do I know this?  They tell me.  It comes up time and time again in our meetings.  One thing for sure, it will be a long time before they trust their co-parent again.  Here in the Trenches.

Monday, August 5, 2013

They're Always Watching

I know I've said it before, but obviously, it bears repeating:  no matter if you are testifying or not, if you are in the courtroom, assume the Judge is watching.  How hard can that be to understand?  Extremely hard, apparently.  I was in court today and had front row seats to a terrific example of this principle.  Picture client is testifying.  I complete my questioning and sit down.  Opposing counsel gets up and begins cross examination.  Her client....picks up her phone and starts to text.  The Judge looks over in her direction and frowns.  I follow his gaze.  Sure enough, there she is, typing away.  A few minutes pass.  I glance over again and so does the Judge.  She's still tap tapping while her attorney continues her questioning.  The Judge and I lock eyes.  He's annoyed; I'm baffled.  A few more minutes pass.  The attorney keeps questioning; her client keeps texting and not paying any attention.  The Judge and I keep looking.  Now, he's more than annoyed.  He calls the attorneys up to the bench.  He tells the other lawyer that we're going to take a two minute recess so she can explain to her client how incredibly rude it is to text while her attorney is working her posterior off for her.  Amazingly enough, when we came back into the courtroom, the client's phone was nowhere to be seen.  What impression do you think the Judge had of her?  Not a good one, you can bet.  All her attorney's work preparing her to testify, and working on her cross examination of my client was totally undone by her client's behavior in the courtroom.  Please learn from her mistake.  Here in the Trenches.