Tuesday, November 26, 2013

Let Me Tell You What I Need

       My puppy girl is not really a puppy as most would define it.  She's almost 14 years old.  That's kind of elderly for the canine species.   Like the elderly, she has some arthritis, a bit of stiffness in her joints.  Some days, going up stairs is not her favorite thing.  Lots of people would be telling her to slow down. They'd be taking her on shorter walks.  They'd be telling her what to do.  I don't do that.  My girl knows herself.  She knows the length of all of her regular walks, and she tells me which one she feels like taking.  Some days, the walk is ridiculously short, and on others, like today, they're a mile or more. I let her call the shots, because she's the best judge of how she's feeling.   Not every canine is like my puppy girl, to be sure, but when you have one like her, you listen to what she tells you.
       As I've said before, clients can be like my puppies.  Some clients are extremely emotional.  They are so flooded with emotion that they can't think clearly.  They have little insight into what they need and can tolerate.  They can't help their attorney advocate for them.  They are also so overwhelmed that they don't trust that they know what makes their spouse tick.  They can't help us, and we have to tell them what do and when to do it.  We have to decide what is good for them because they can't.  Others are just like my puppy girl.  They know what they need and how to get it.  They know how their spouse thinks and what their spouse wants.  They need their attorney's help to get their desired result, but they partner with them instead of letting them call all the shots.  Neither client is either good or bad; they're just different.  The important thing for those of us here in the Trenches is knowing what kind of client we have.  Treating either one like the other would be disastrous, kind of like telling my puppy girl  to take one walking route when she wants another.  Yet, there are attorneys who don't understand these different types of clients.  I know.  I had one.  I fired them.  Dogs and their owners.  Here in the Trenches.

Monday, November 25, 2013

The Day the Computers Died

          The hard drive on this awesome Apple MacBook died.  I took it to the Apple Store. Three hours later, I walk out with a fully repaired, awesome Apple MacBook.  In between, I sat at the Apple Store.  Sure, I did some work while I sat there.  Mostly, though, I watched people.  I watched the people who worked at the store and I watched the customers.  I noticed a lot of things.  The first thing I noticed is that there were a lot of people in the store.  There were shoppers, there were people getting their equipment repaired, and there were people taking classes.  That was only half of the people in the store.  The other half were Apple employees.  That's right - half of them were Apple employees.  Not one person entered that store without being approached by an Apple employee.  Ordinarily, that would annoy me, because I hate feeling pressured.  They didn't pressure anyone; they appeared genuine in their desire to help, and the customers responded in kind. Not all of the employees could actually help, but it didn't matter.  In the back of the store, where all the folks who needed repairs were situated, you would imagine the mood to be a bit tense.  It wasn't.  The customers were just as calm and, dare I say, happy as everyone else in the store.  Why?  It was because they felt that the people who were there to help them really were, and they cared about them and about solving their problem. Even when the item couldn't be repaired, the Apple folks talked them through options like a team.
         Contrast this with what happened to another intrepid member of the Trenches.  The week before my laptop died, hers did the same.  She took it in to be repaired.  It was dead.  So sorry, they told her.  The computer was dead.  They told her she might be able to go somewhere else and save some of her data, but she needed a new computer.  She left there with no computer, no idea who could help her, and no clue about what kind of computer to replace it with. She was adrift, and even the intrepid She wanted to cry.
          Oh goodness, isn't this just like the Trenches?  People come to us when their lives, not their computers, are broken.  They are beyond tense.  They come to us to help fix their lives.  We know they're on edge.  They don't need us to make it worse.   They need us to be calm, positive and reassuring.  Sometimes, there is not a lot we can do to make their situation better at any given point in time.   That makes our clients even more nervous, we know.   We're looking at the end game, and some points in time are not that important - to us.  To our clients, every point is important.  It would be easy for us to be impatient or to be matter of fact.  That would make it worse for our clients.  Like at the Apple store, we make sure to answer the phone with a smile on our faces and in our voices.  We really listen, even when it is the 10th time we've heard what the client has to say.  We ask questions to see what we can do.  We try to make them feel better and work toward a solution to their problem.  Most of all, we make sure they know we care.  Clients know when we do and it makes all of our lives easier at a really hard time in the client's life.   Can't we all learn from Apple?  Here in the Trenches.

Friday, November 22, 2013

Thursday, November 14, 2013

Be Nice When it Doesn't Count

Once again it happened.  The self-represented spouse of my client called the office and let the person answering the phone have it with both barrels.  He was upset because I didn't complete the order to transfer retirement assets into my client's name until four days before the uncontested divorce hearing.  The order didn't affect him at all; it had no effect on his life.  No matter.  He ranted and raved at her.  He was truly heinous.  Fast forward to today, the day of the hearing.  I saw him in court.  He was perfectly lovely and friendly.  Actually, we couldn't get him to leave us alone.  He wanted to share all of the details of his life.  I wish I could say this was the first time something like this happened, but it isn't even close.  I am constantly amazed at the number of people who are nasty to "the help," but wonderful to the boss.   Do they think the boss doesn't find out?  I remember reading somewhere that you can always tell a person's true character by how they treat those who serve them, like waiters, secretaries and housekeepers.  I believe it.  The staff tells us how you treat them, and we believe them.  We don't allow them to be mistreated, especially by people who aren't our clients.  If you are our client, don't make us fire you.  Treat the staff right.  Here in the Trenches.

For those of you who were worried, puppy girl went to the dentist.  She now has 5 fewer teeth.  She'll be back to her usual sweet, whiny and bossy self soon.

Wednesday, November 13, 2013

Luck of the Draw

Just in case you haven't been paying attention, when you are before a judge, you can't predict the outcome.  That point was driven home to me quite explicitly yesterday.  I was before a judge who I've known for quite a long time.  We were talking about something that could potentially become an issue later on but not yesterday.  One topic led to another, and we talked about the judge's view of a client's compliance with court orders if they believed (rationally and reasonably) that to do so would endanger their child.  Tough decision, right?  Well, this judge's view was that so long as a pleading was filed in court to ask a judge to change that behavior, the judge would find the non-compliance understandable.  Fair enough, except that a few months ago, I watched a different judge berate a client for engaging in self-help in exactly that type of situation.  Both judges are parents, both are the same sex, relatively the same age, but exactly opposite views.  Different judges, different opinions on the same facts.  That's the risk of litigation.  Here in the Trenches.

Monday, November 11, 2013

Simple Solutions

My puppies have not made an appearance here in a while, so they're due.  Puppy girl has been doing fairly well for a mature woman of 13.5 years.  She's been losing a bit of weight of late, and that has been a concern.  Off to the vet she went, along with her worshipful puppy boy.  She's fine, a small cyst on the inside of her lip, but all the bloodwork was normal.  Still....she's not eating much, and when she doesn't eat, neither does her adoring boy.  Worrisome.  I came home today, and again noticed she wasn't eating.  I put on my detective hat and wondered if the cyst was making chewing painful.  Maybe she broke a tooth.  So, I softened up some of her dog food.....and she scarfed it down.  So did her boy toy.  I feel better, she feels better, and we have more information to tell the vet.  Simple solution to a perplexing dilemma.
I have a case here in the Trenches that reminds me of my puppie girl.  No matter which way we approach it, a resolution slips through our hands.  The client wants one thing.  We explore it, we pursue it.  That's not what the client wants.  The client can't find time to meet.  We rearrange our schedules; the client changes plans and blames us.  We figure it's us, that we're missing something, that we're lacking in our advice and how we're approaching the case.  We beat ourselves up.  We try again.  Nothing.  We're so frustrated.  Then, we figure it out.  The solution is so simple we're amazed we didn't see it.  Nothing's making sense because the client is ambivalent about what they want.  They say they want a divorce, but their actions don't.  Such a relief.  Now we know what to do and how to help.  Just like my puppy girl.   Here in the Trenches.

Friday, November 8, 2013

Risk Management

There are many reasons to settle a case.  The one that most people understand, and the most usual reason, is that the parties have found their way to a mutually acceptable solution to their dispute.  There are other reasons as well.  The one which is hardest for most clients to understand is settling in order to manage risk.  That's right, manage risk.  As I've said before, going to trial is a gamble.  There are two sides to every story; two ways of looking at every set of facts.  When he goes to trial, the client is gambling that the judge will look at the facts his way and thus give him what he wants, what he believes he deserves.  The problem is that the other side of the case is thinking the same thing.  The risk is that the judge will rule in favor of the other side, and that can have serious repercussions.  Settling allows the client to manage the risk, have some control over the variables, even if the ultimate result is not entirely acceptable to them.  For example, there may be a possibility that the court could order an award of alimony.  There are no alimony guidelines in Maryland, and the court can't make alimony non-modifiable, so the amount and term of the alimony are uncertain.  The client might settle for paying more child support than the child support guidelines require in return for a waiver of alimony.  Is such an agreement ideal for the client? Probably not.   Is it what the court would award?  Maybe.  Maybe not.  There's a risk to going to court to find out, and the possible result could be worse than the higher child support.  The client controls the risk by settling the case.  In that way, the settlement is acceptable.  Here in the Trenches.

Wednesday, November 6, 2013

What Did You Say?

Sometimes, what a client thinks is significant and important, the judge does not.  Actually, it happens more often than you think.  That's why a client needs a lawyer.  Lawyers know the law.  We know what facts are important under the law.  We know what the judge thinks is significant.   So, why don't clients listen to their lawyer?   Beats me, but they don't.  Then they're surprised when the judge doesn't rule their way.  Here in the Trenches.

Tuesday, November 5, 2013

What May I Do?

Good judges know their limits.  That knowledge is more important than knowing the law.  Judges can only do what the statutes say they can do, or what the appellate court says is OK in written opinions.  That's it.  They can do no more than that.  If it's not written in one of those two sources, the Judge can't do it.  Period.  A good judge knows that.  A really good judge knows when a case needs more than that.  That's when a really good judge stops the trial and URGES the litigants to rethink settlement.  When a judge does that, a good attorney (or two) listen - really well.  You need an example?  Happy to oblige.  Some cases, especially custody cases, really need the input and opinion of a licensed mental health professional.  Some cases need those mental health professionals to help the parties make decisions by actually making some of the decisions, like whether and when a parent and child are ready to have more contact or whether a parent is emotionally healthy enough to make decisions.  How a custody arrangement progresses may need a mental health professional to make some decisions to help the parties move forward.  The judge doesn't have the knowledge to help.  Unfortunately, there's nothing in the statutes that lets a judge order that.  There's a written opinion that says a judge may not delegate decision making authority to a third party - without the express consent of the parties.  That means the judge can't order litigants to let a mental health professional make any custody decision.  The litigants have to agree, and the judge is not allowed to order them to agree.  In those cases, if the judge decides, the decision won't be as practical, fluid and workable as one with the mental health professional involved.  A really good judge knows that and pushes settlement.  We love a really good judge.  Here in the Trenches.

Monday, November 4, 2013

It's All About the Story

       Last week was my three day trial.  Whew!  I spent four days going home after dark and coming back to the office before dawn.  It was exhausting.  To reward myself for a job well done, I went out and bought myself two new pairs of shoes - but I digress.  As you might imagine, a three day trial provides lots of Trenches moments for this blog.  It gives me at least a week's worth....
       First, let's start with my pet peeve.  Attorneys who don't prepare their clients or witnesses for testimony.  This is different than the flip side - clients who don't take preparation for trial seriously.  There are two levels to preparing witnesses for testimony.  The first is having a theory of the case.  The second is the preparation itself.   You can't do the second properly without the first.  It reminds me a bit about the Chesire Cat in Alice in Wonderland:  if you don't know where you're going, how will you know when you get there?  You see, presenting a case in court is all about telling a story.  The lawyer doesn't tell the story herself; she uses various people, or witnesses to weave different pieces of the tale together so the story flows together, makes sense to the judge, and persuades.  Some people can tell a story and some can't.  It's kind of like telling a joke; some can tell one, and others can't (I'm one of those who can't).   Even if you're not a good story teller, however, it's obvious when you at least try.  Then, even if the story comes out in herks and jerks instead of smoothly, at least there's a story.  I'm pretty good at telling a story; not every attorney is.
       That, of course, brings us to the second part of the preparation, the testimony itself.  Clients and their witnesses know a lot of facts.  Some of those facts are important to the story and some are not.  Some facts, all the witnesses know, and they don't need to be presented by everyone.  That's part of telling a story - knowing which facts are important and essential to the story and which are not.  It's important to know which person is the best one to reveal the facts, as well.  The witnesses don't know what facts that they know are important to the story because they're not telling it.  The attorney is, and it's up to her
to elicit the necessary facts.  That takes work, both by the attorney and the witness.  There's no shortcuts, and it takes time to do it right.  Lots of time.  Here in the Trenches.