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.