Tuesday, December 23, 2014

Just a Little TIme Off for the Holidays

To all of my readers out there, you may have noticed a dearth of postings lately.  Christmas cookie season, then my annual post-Christmas cookie flu have keep my head too cloggy for blogging.  I've used all of the available braincells to serve clients in my office.  I feel very guilty for not keeping up with you.   Fear not, however, I am not done with blogging.  Officially, I am taking time off from the Trenches and blogging until the first of the year.  I'll be back in January with more for you.

Have a happy holiday season and stay safe.

Monday, December 8, 2014

First Thing We Do, Let's Kill All The Lawyers

Are you one of those people who sees people running alongside the edge of the road, and think "Jerk, get back up on the sidewalk!"?  You can't understand why people would run in the road.  Well, I'm a runner.  I run on the edge of the road.  Let me tell you why.  First. asphalt is easier on the knees than concrete.  That's not why I don't run on the sidewalk.  Let me tell you why.  When I reach an area without a parking shoulder, I jump over to the sidewalk. Since daylight savings time ended, I have fallen on the sidewalk 3 times.  I have gotten road rash on my shoulder, my chin, my hands and my knees.  I have ripped my running gloves.  I've been lucky I haven't broken something. Why?  Because roads in my area are fairly well maintained, they are smooth and even. Sidewalks are not.  They have cracks every 30 inches.  The sidewalk squares heave and buckle and crack.   I've tripped on the uneven surface.  Three times.  Context.

A judge in one of the courts in which I practice lost their young adult child suddenly and tragically at the end of last week.  This was the Christmas cookie weekend for that courthouse, with the delivery set for today.  I struggled with going ahead with cookie deliveries.  Today, I delivered the cookies.  To some, that might feel a bit callous, celebrating the holidays at a place that has felt such deep tragedy so recently.  What if I were to tell you that this particular judge loves my cookies?  The judge looks forward to cookie deliveries with excitement and has, on occasion, chased me down the hall to thank me for them.  The judge's administrative assistant is taking the cookies I delivered to the judge at home.  Does that change how you view my going ahead with deliveries today?  I bet it does.  Context is everything.

My favorite example of context is the infamous Shakespeare quotation:  "First, let's kill all the lawyers."  It is often cited to show that Shakespeare hated lawyers and thought they were corrupt and unethical.  If you read Henry VI, Part II, Act IV, you will see that those lines were uttered by someone who thought that killing all the lawyers was a way to disturb law and order by removing its protectors, and in that way, could seize power.  Context sure makes a difference.

We know a lot about context here in the Trenches.  A purely innocent act, in the right context, can be sinister.  A woman having dinner with a man is innocent.  That dinner, but at a candlelit restaurant, not so innocent.  Oh wait, they're holding hands.  An affair?  He texts his wife about the children.  A concerned parent.  He texts her 50 times a day - something entirely different.  What if he texts her when the child's school is in lock down and they are anxiously texting updates back and forth?  We're back to normal again.  Context is in everything we do here in the Trenches.  Putting things in the right or wrong context can make or break a case.  Here in the Trenches.

Thursday, December 4, 2014

The Good Old Days

My father used to lament the loss of the good old days of personal injury work.  In the good old days, the injured person's attorney and the insurance company's attorney would exchange necessary documents, and then they would pick up the phone or meet in person and discuss the case.  They would talk about the injured person's injuries and medical bills.  They would discuss the permanency of the injuries and the effect of those injuries on the injured person's life.  Then, they would talk numbers.  The numbers they would talk would be remarkably similar.  They were within a reasonable range.  The range was not because the two attorneys colluded to fix the amount the injured person could recover.  Rather, the range came about because both attorneys had tried a goodly number of similar cases and knew what a jury would likely award.  The attorneys would rather not waste everyone's time asking for the sun and the moon and the stars, if there's no prayer they would get it.  They haggled over a figure everyone knew was reasonable under the circumstances.  That was the good old days.  In the not so good new days, the insurance company's attorney would offer a ridiculous pittance and play hardball with it.  Not my dad, but many injured people's attorneys would ask for a ridiculously large amount of money and play hardball with it.  The reasonable range hadn't changed, but the reasonableness of those negotiating had.  What was the result?  Besides hard feelings all around,  there was a lot of wasted time and money to get to the same place.  Game playing took precedence over getting the matter resolved so the injured person could go on with their life.

I just started a case with a colleague I've known for years.  The first thing we did was get on the phone together.  We shared some information about our respective clients, and about their financial situations.  We talked about our clients' needs and goals.  We compared where we thought our clients were in terms of a financial settlement (there are no children).  We found out that we were pretty much on the same page about what it would take to settle the case, and the range of financial options available to us.  We agreed on what difficulties might exist that would impede a full settlement.  We agreed on what documents were really necessary for us to advise our respective clients and agreed to provide them.  Then we hung up.  Even though agreeing on the exact number for settlement may take some time and effort, it will take far less time, money, and effort than if we just came out swinging.  This is not the only attorney with whom I can engage in such a process.  Contrast that with another case I have in which the other attorney says one thing and does another.  This attorney has filed pleading after pleading, saying the same things, none of which are appropriate for relief.  Unfortunately for my client, I have to respond to each and every one of them.  The sad part is that we have one fairly tiny issue left to resolve, and instead of putting the effort into wrapping that up, this attorney continues to file motions.  It's miserable for all involved, and is costing my client a lot of money she really shouldn't have to spend.

The moral of this story is that is usually a good thing for attorneys on opposing sides to know each other, get along and trust each other.  It's not a good old boy kind of thing; it's a case management issue.  Trust and respect take you further in a shorter period of time than distrust.  It also saves you money.  Am I fighting for my client?  You bet I am.  Am I looking out more for what they need than in preserving my relationship with the other attorney?  Yes, but the two things are not mutually exclusive.  We can and do advocate strongly for our client's goals.  That doesn't change with who is the opposing attorney.  What does change is the tenor of the case.  Changing the tenor models the behavior of everyone in the case, which means emotions cool faster, and goals, instead of hurt feelings, take precedence.  Here in the Trenches.

Friday, November 21, 2014

Is It the Destination Or The Journey?

I talk a lot about process and helping clients identify and reach their goals.  You would be forgiven if you thought that I just meant that on one level.  Certainly, I want to help clients decide what financial and parenting goals are important to them.  Those are the macro goals.  What I don't talk about much are process goals, yet they are equally important.  How will the client and their spouse resolve any future disputes?  How will the parents reconcile expenses for the children?  How will they determine how to calculate what each of them gets from the settlement?  How will they decide who to do their taxes?  Who to sell their house?  How will they decide?  It's not as easy as it sounds.

Some people need a detailed process with lots of steps, checks and balances, and details.  Some folks need something a little less formal, just a general sketch of what to do.  Still others need no process at all.  Here in the Trenches, we talk to our clients about how they made decisions in the past, what worked and what didn't work.  We ask them what makes them comfortable.  We ask them about their spouse and how they make decisions.  We explore the level of trust between them.  We discuss it and assess.  You see, the terms of an agreement are only as good as the process used within it.  A durable agreement with an acceptable outcome means all of the terms, both substantive and procedural, are acceptable.  The process is something most clients overlook.  Not us.  Here in the Trenches.

Wednesday, November 19, 2014

Life Is What You Make It

Daughter's and my trip to Italy was a Groupon.  We flew on the plane with four other couples who had bought the same Groupon.  Technically, we were on the same trip.  Yet, our trips were anything but the same.  One couple decided to use our hotel in Montecatini as their base to explore Italy's major cities:  Rome, Florence, Venice.  Another couple took advantage of Monetcatini's spas, and left Montecatini a day early so they could see more of Milan.  We explored the Tuscan countryside and cities near us.  Yet, it was all the same trip.

Saturday, I ran a half marathon.  I needed a good time in order to secure a better starting position at the Disney Princess Half Marathon (so Daughter and I could enjoy some photo ops with the characters), and I wanted to post a personal record (I did).  As I milled around waiting for the start, I talked to a number of other runners.  One was running their first half marathon, and just wanted to finish.  Another ran it every year just because they love it.  Lots of folks were trying to qualify for the Boston Marathon.     Same basic course, up and back for 6.55 miles on the C & O canal path, yet, each person was running a different race.

Life in the Trenches is much the same.  Everyone goes through the same basic process.  It's their goals that make the difference in the experience and the result.  It starts with a state of mind.  Part our job here in the Trenches is to help our clients explore where they are and where they want to be.  We have to listen to what is important to them, not in terms of things, but what they represent.   Then we help them translate what is important to them into long and short terms goals.  Their goals sometimes determine the process, but goals always determine how they act during the process.  Everyone is different, and so the process, although basically the same for everyone, is individual.  Here in the Trenches.

Wednesday, November 12, 2014

Head, Shoulders, Knees and Toes

My fabulous yoga instructor also believes that everything is connected.  We start every class by working on our feet.  Why?  Because the health of the feet controls the rest of the body.  I certainly found that out when my knee problem cleared up once my sore toe resolved itself.  My yoga instructor believes that misaligned feet create a domino effect on the rest of the body, just as healthy, well-aligned feet are the building block for a healthy body.  It's like dominoes, one piece affecting the next.  I know, my yoga instructor should meet my dentist.  Anyway, from our feet, we work our way up to the hips, the low back and then the shoulders.  Everything is interrelated.

That's how it is here in the Trenches.  Everything is interrelated.  Certainly, in a purely mechanical sense of things,  you never settle property without also settling support, because the property a party possesses is a factor in determining support.  The amount of time a parent has with their child may affect child support.  Those things are not about which I speak.

The interrelation I'm talking about is far more subtle. I firmly believe that how well and how quickly people recover from divorce has to do with how involved they are in the process itself.  I don't think it matters whether a client wanted the divorce or not.  What matters is how connected they are with the process.  How do they work with their attorney?  Are they involved?  Are they interested in what is going on?  Now, there's a fine line between being interested and involved and being controlling.  Being controlling is not being involved; it is being separate and apart from the process and manipulating it to an end which was predetermined before becoming involved in it.  Not the same, and not healthy.  Interest equals curiosity and investment.  It's knowing what you know and what you don't, and working with a professional or two or three to learn.  Involvement is doing the hard work of focusing on future goals, asking the hard questions, gathering the information and thinking about solutions that work for them and their family.  If this sounds like the collaborative process, that's because it is.  It is also mediation, litigation, and negotiation.  They call the stages something different in each process, but in their somewhat different forms, they are all present.  Why?  Because it works.  Believe it or not, it is the process that helps the healing.  Huh?  The pain of the divorce process is connected to getting past the process?  Of course it is. Why else would all the stages be the same?  Here in the Trenches.  

Tuesday, November 11, 2014

We're All Connected....

.....in so many ways.  I have fairly severe temporal mandibular joint disorder.  It is so bad that as a teenager, my jaw would pop out of joint and freeze in the open position (OK, no cracks about me and my big mouth!).  Needless to say, it was painful.  My head tied in knots; I lived with daily headaches.   My sinus headaches were more severe than at any other point in my life.  I went to dentist after dentist. A couple of them thought it was all in my head (really?).  One thought daily injections of painkillers in my mouth would solve the problem - that killed a few nerves and created a decades long fear of novacaine needles.  Finally, I found a dentist who understood what was going on.  My teeth didn't mesh properly and the resulting misalignment threw all the muscles in my head off.  He rebuilt my mouth - no mean feat, as my bite is like the proverbial princess and the pea.  I now have a different dentist, who I adore, and thank heaven's he's patient and painstaking, because the princess and the pea is back because crowns don't last forever and have to be replaced.  It will be fine, because he gets the interrelationship between my bite and the muscles and joints in my head.   In fact, he just worked with a dentist who believes he can utilize the alignment of the bite to correct a misalignment in the hips.  Wow.  Way more complicated than simply taking care of the health of the mouth, which is what he was initially trained to do.

Anyway, during one of my many trips to the dentist this past week and a half, my dentist mentioned that he had just attended a training on domestic violence.  Yes, you heard me correctly, my dentist attended a continuing education on domestic violence and how to identify it.  My poor dentist.  Not only does he have to pay attention to the health of the teeth and gums, he also has to study the anatomy of the rest of the body starting with the mouth, and be cognizant of the signs of domestic violence as it relates to dentistry.  It keeps him on his toes for sure, and guarantees he will never be bored in his work.

Here in the Trenches, life is much the same as for my dentist.  I, and most of my colleagues who toil here, are not amused when lawyers say they thought they'd try family law because "how hard can it be?"  Plenty hard.  Family law is not just about obtaining a divorce.  It's not only about divvying up possessions.  In order to practice family law and do it well, we have to know tax law, bankruptcy, and psychology.  We have to understand the latest theories about children and attachment to parents.  We need to be able to identify and work with people who are emotionally overwrought or mentally ill.  We have to understand retirement plans, military regulations, how to value a business or a house.  We need to understand how a mental health professional performs an evaluation, how to assess research in different substantive areas.  We need to know basic accounting, how to trace money, and of course, how to spot domestic violence and assess lethality. All of that changes and we have to keep up with those changes.  That is all in addition to knowing how to do all the other things a lawyer does, like try a case, negotiate and get that pesky divorce.  It's not easy; in fact it is one of the more difficult areas in which to practice because of all the types of things we need to know what to do, as well as the stress of having and managing emotional clients.  Everything affects everything else.  It's all connected.  .Just ask my dentist.  Here in the Trenches.

Thursday, November 6, 2014

I'm Leaving On A Jet Plane

Are you tired of hearing about my trip to Italy?  Sorry, I still have more to say,......but not today.  Today, I want to tell you the story of a mediation.  Here in the Trenches, the hardest, most heart wrenching cases are move aways.  That's when one parent is moving out of the area and wants the child to go with them.  Some parents can discuss and agree what will happen to their child in that case, but many more cannot.  It is torture to think one parent or the other will not be a daily or even weekly part of their child's life.  When parents can't agree on where the child will live and when they  will see the other parent, they usually end up in court.  When that happens, the cases hardly ever settle; a judge usually makes that decision.

I am in the midst of a move away case now.  Both parents are fit and loving parents.  For the last three years, their child has spent relatively equal time with both of them.  Now, however, one parent has to move across the country.  The parent has no choice.  We are headed to court.  What I suggested, and the other attorney agreed, was that we head to mediation.  Wait, didn't I say these cases rarely settle?  Yes, I did.  We are headed to mediation to determine the access schedule for each parent with the child.  We simply aren't going to decide which parent gets which schedule.  We'll let the judge to that.  Why are we doing this?  If you think about it,  it makes sense to do this.  Both parents have an incentive to make sure both parents' access schedules are acceptable because they don't know which of them will get which schedule.  They also retain some control in a system which removes their control.  As an added bonus, they are using their lawyers and paying attorney's fees toward a constructive and positive result.

So, we were mediating this case today.  Both parents are at the table, working hard.  We start discussing how often the child will fly back and forth in the first six month period.  No surprise, the parents don't agree.  One parent wants the child to fly back and forth every month. The other?  Only once at three months and then again at six.  Why such a difference?  Well, the parent who wants the monthly travel thinks they will miss the child too much if they don't see him every month, at least at first, and wants to see him often.  The other parent is concerned about how that much travel will affect the child.  Will it be too disruptive for him?  Will it be too confusing?  Which parent is looking out for the child's best interest?  Can you tell?    I know, that's just one fact the court is going to look at to decide this child's access schedule.  Still, do you look more positively at a parent feeling that more frequent contact more often with a parent is in the child's best interest, or do you view with more favor a parent who wants stability in the child's daily life?  So glad I'm not a judge.  Here in the Trenches.

Monday, November 3, 2014

But Wait, There's More

      So many lessons from Italy.   Today's deals with priorities.  Nowhere is the difference in priorities between the USA and Italy more evident than at the airport.   In Italy, service in restaurants is slow.  Permitting for building is slow.  Lines at airports are.......fast.  That's right; they're fast and efficient.  In the USA, service in restaurants is fast. Permitting for building is fast.  Lines at airports are interminable.  The difference is one of attitude.  In Italy, meals are meant to be savored leisurely, and really, what is the rush to finish a building?  Waiting to board public transportation is simply a waste of time.  People could be having a latte or cappuccino instead of waiting in line.  They could have a glass of wine and laugh with friends.  They need to get us through something that is a nuisance, necessary as it is, so we can enjoy the things that make life worth living.
       The Italians, are remarkably efficient with their airport security.  Follow me on this.  Daughter and I show up at the airport.  We check in at the desk and show our passports.  We walk to the security line, which was REALLY long, and show our passports.  We're nervous.  There are only two lines open at security.  There are only three, that's right, three people working at each line, one checking passports and tickets, one ushering folks through the scanner, and one reading the xray of bags.  We sigh and resign ourselves to a super long wait.   We thought it was a good thing we had to be at the airport 3 hours ahead of time.  10 minutes later, we were completely through security.  Did I mention the line was really long?  It wasn't that they asked us to do any less than the TSA here in the USA.  In fact, we had to take more things out of our bags, although we could keep our shoes on our feet.  It wasn't that their scanners were any different than ours.  The Italians were simply really efficient.  Oh, and coming into the country,  passport control moved like lightening, whether you were a European resident or not.    
       Then, Daughter and I reached the USA.  What a cluster.....  Getting through passport control wasn't too bad.  Then, we had to get our bags and go through another check before our bags went on to their final destination.  That line was REALLY long.  There were three people at the desk, so we weren't too worried.  Until we saw only one of them was actually working.  That's right, 3 full flights arrived, at least 100 people are waiting in line, and of three people, only one of them was working.  That line took half an hour to get through, and all they had to do was check our passports (again) and ask us if we had anything to declare to customs.  Then, even though we had gone through security in Europe, they made us go through security again.  There was only one line open at security to check tickets and identification.  Then there were two lines open at the security check.  I counted 5 people working on each line.  I don't know what they were all doing, and neither did they.  The line wasn't that long, maybe 20 people, a small fraction of the people in Italy.  It took almost another half an hour to get through.  No one had any clue what they were doing.  Daughter almost missed her connecting flight.  We were both frustrated.  Obviously, American priorities at airports are not on getting passengers through the line. That's not part of their value system.  They just don't care.
       Just as Italians and Americans have different priorities, so do clients here in the Trenches.  For some clients, keeping the children in their same environment is critical.  Or maybe it's safeguarding their retirement.  Perhaps, it's spending more time with the children, or spending less on child or spousal support.  For some, the priority is getting through the process as fast as possible  Maybe the priority is to finish as cheaply as they can.  Some want to take it slowly and thoughtfully.  At times, it seems like the difference between Italian airport security and American.  Part of our jobs here in the Trenches is to help our clients decide what is most important, both in life and in process.  Another part is to find a way to meld the priorities of both spouses in order to choose the process that works for everyone and to help them both meet at least their most important priorities.  Sometimes we can, and sometimes, one client demands everyone march to the beat of their drummer.  Everyone is not the same, nor are their priorities; unfortunately, when clients don't realize that, the process kind of feels like an Italian suffering through American airport security, or an American trying to obtain an Italian building permit - painful and frustrating.  Again, there are reasons people are divorcing, and differing priorities are usually a big part of that.  Simply realizing that one fact and accounting for it in what you do and say can make a huge difference.  Here in the Trenches.

Wednesday, October 29, 2014

Dining, Italian Style

More on my trip to Italy with Daughter.....  Europeans, and Italians in particular, love their meals.  You notice I didn't say that they love to eat.  They love meals.  They like to take the time, sit down, eat a little, talk a little, drink a little and eat some more.  Many of their meals have multiple courses.  When Daughter and I were in Italy, we ate like locals.  We would order a primi piatti, and a secondi piatti, and we'd share them both.  The waiters understood, and would divide our plates before they brought them to the table, so we'd have two lovely small plates of food, one course after the other.  We'd drink a little wine, savor the small plates, and talk.  Only in Milan, the largest city we visited, did they even offer to bring us both the primi and the secondi at the same time.  You could see the relief and the pleasure on the waiter's faces when we appeared scandalized that they would even suggest it.   We enjoyed our meals and ate our fill.  We never felt stuffed, yet we never felt hungry either.  Here at home, we regularly eat our pasta with our main course.  We shove all the food on the plate at the same time.  We're lucky if we spend half an hour eating together instead of one to two hours.  Yes, I said two hours.  We eat far more food, and we don't stop until we feel full.  In both Italy and home, we ate enough to sustain us, but the experience was far different.

Here in the Trenches, life is like eating a meal.  All of our clients get divorced at some point, like finishing a meal.  Is it an experience or is it just an event? If it is an experience, is it thoughtful, meaningful and one from which the client grows, or is it simply something the client survived?  I know it sounds counter-intuitive that the experience of getting a divorce could be positive, yet for many of our clients here in the Tenches, it is.  Divorce, Trenches style,represents an opportunity to learn about finances, find out who your friends are, improve communication style and skill, and think deeply about what is important, both now and into the future.  It is an opportunity for growth, if you approach it right.  So, what is it to be  - an Italian dinner or a trip through the drive through?  Here in the Trenches.

Monday, October 27, 2014

Rules of the Road

I'm officially over my jetlag and the stomach bug I had before and after my trip (lucky me).  It's time for those reflections on Italy I promised you.  Our trip to Tuscany was a fly/drive package, which meant we flew in and then rented a car to drive while we were there.  Daughter and I drove a lot.  Here's what we noticed.

1.  The left lane is for passing only.  I know, that's the rule here as well.  The difference is that in Italy, they follow the rules.  As a result, traffic flows far more smoothly and faster.

2.  There are no stop signs.  There are only traffic lights in LARGE cities.  Every intersection is a roundabout.  Can you imagine?  You know what I'm going to say next, don't you?  They worked because everyone followed the rules and yielded to the cars already in the roundabout.

3.  Blended merges were blended merges.  Everyone took their turns.  Traffic moved faster as a result.

4.  Pedestrians really have the right of way.  Sure, I almost hit a few of them as I was busy listening to Ms. GPS tell me where to turn, but no one was ever actually injured.  Aside from those few close calls, which Daughter would require me to disclose in the interest of transparency, traffic stops for pedestrians.

I know, you hear all the time about crazy Italian drivers, and they certainly drive fast.  The rules of the road are the rules of the road, and they are obeyed.  Period.  It's so different than here at home where the left, middle and right lanes are all for the slowest drivers, or the fastest drivers, or wherever anyone can find a place to fit their car.  How many times have you approached a roundabout, a four way stop or a merge and no one knows the rules or they are in such a hurry that they figure the rules don't apply to them?  Don't get me started on how many times I've almost been killed crossing the street.

The Trenches is a lot like traffic.  There is an order and set of rules that determine the procedure and the process.  Depending on what method of dispute resolution you use, the process may differ, but each method has their own progression and attendant rules.  In order to move smoothly through the Trenches, the order must be followed.  Trust me on this.  I have clients who don't understand this, and they try to do things their way.  It's always a mess.  You can't buy your new home before you've determined and agreed from where the funds are going to come.  Usually, you can't purchase your new home before you've sold your old one.  You can't get financing while you're still married without a separation agreement.  Still, there are clients who try to do it backward.  They put that contract down on a house and want to work backward - and they need that work done now.  Really?  Thanks for having me negotiate when you have everything to lose.  No pressure.  I can probably do it, but I guarantee the road will be extremely bumpy.  Put on your seat belt. Too bad it didn't have to be this way.  I told the client there was an order and a process, but they didn't listen.  Settlement will be that much more difficult as a result. If they'd only followed the rules of the road. Here in the Trenches.

Thursday, October 23, 2014

Another One Bites the Dust

I'm back from a wonderful vacation in Italy with Daughter.  As you can tell from the absence of blog posts, I took the opportunity to turn off.  I didn't blog, read or answer emails (OK, one or two) or check in with the office.  Aside from the incredibly horrible jetlag, I came back feeling great, with renewed energy and tons of potential blog posts.  Yesterday, my first day back in the office, I found out that two of my absolutely favorite colleagues here in the Trenches are leaving the Trenches.  One of them is leaving the practice of law entirely and the other is leaving the world of the Trenches for a different area of law.  Why?  They are burned out on family law.  That makes three of my colleagues in the past year to leave Trenches life, two of them for lives outside the practice of law.  Am I happy for them?  Certainly.  They are doing what makes them happy.  At the same time, I am sad, because that means that at least one of them I won't ever see, and the other not much at all because she won't be litigating.  I am also sad because the Trenches will be losing two of the good guys - lawyers who care what happens to their clients and are committed to their clients leaving the Trenches with a sustainable future for themselves and their families.  That dwindles our numbers by two, and in my small community, two is a lot.  What I don't see is folks coming in to take their place.  There aren't a lot of new faces who pass Trenches muster, nor are there many younger faces coming up the ranks.  Sure, it means more business for the rest of us, but that's not what I'm talking about here.  I ran into one of the judge's bailiffs, and he put it perfectly:  I'm talking about the difference between lawyers who work for their clients and those who work to earn the most from their clients.  There's a difference, and you can see it five minutes into a litigated case.

Tuesday, October 7, 2014

Fun and Games at the Courthouse

For the most part, the folks who work at the courthouse are hard-working and diligent at their jobs.  They are also poorly paid, and if they are in the public portions of the building, are abused by the public and lawyers alike.  If they work in the clerk's office, they are also overwhelmed by paper.  It's their jobs to accept the papers for filing, enter them into the computer docket, send them to the proper desk to be worked, either to have other paperwork generated, wait for responsive pleadings or go up to a judge or case manager for rulings and decisions.  It's a lot to do.  Did I mention these folks are poorly paid?  That means that, not the supervisors or the people at the front desk, but many of the line workers are either poorly educated or don't read, and understand the English language very well.  Yet, it's their jobs to see that papers get entered into the system correctly and go onto the right desk.  With all of the above, you would think that there would be a lot of screw-ups.  Amazingly enough, there aren't.  The ones that happen are frustrating and maddening, especially because once the mistake is made, the attitude on the lines is that it is no longer their problem; it's yours.  You need to correct their mistake.  Usually, I'm happy to do what it takes to make things right.  Sometimes, however, enough is enough, and I walk myself down to the courthouse to visit with the supervisor.  They don't like to see me there, and not because I'm not nice and pleasant, because I am.  They've been there long enough to know they don't see my face unless I have made multiple attempts to fix whatever's wrong, and it hasn't worked.  The nice thing about that is that after I show up, everything is fixed within 24 hours. ( BTW, I don't think that would happen if I were unpleasant or showed up for every problem.)  Mistakes happen, papers get clipped to other papers, pleadings land on the wrong desk.  We all know that, and eventually, the problem will be fixed.  Yelling, nastiness and being generally unpleasant doesn't help, and in fact, may hurt.  Yet, I see it all the time when I'm in the courthouse.  Again, the courthouse is a tough place to work, and for not enough money.  A little kindness there goes a long way.  Here in the Trenches.

Monday, October 6, 2014

Part of the Pack

The puppy walking community is very close-knit.  We may not know each other's names, but we know our dogs.  There's Shayna, Bamboo, Louie, Della, Misa....and their owners.  We see each other on the path at least a few times a week.  Our puppies play together and we chat. We've gotten to know each other fairly well over the years.  When my dad was sick and I was feeling down, seeing one of the puppies' friends always made me feel better.  It wasn't that we talked about anything in particular - it was simply a friendly face, simple chit chat, and watching the puppies play.  Yes, they all knew dad was sick, and they always asked how things were.  Then we went on to other topics of conversation.  I felt their support, and it provided a daily reprieve from the grief and the stress.  It still does.  Anyway, tonight, we were walking and Shayna's "sister" twisted her ankle and fell.  I grabbed Shayna's leash.  Bamboo's dad took him home and brought his car to drive her home.  Another puppy "mommy" helped support her to the car.  We were all there for her.  It felt good.

The professionals who toil here in the Trenches are under a lot of stress.  Day in and day out, we deal with people who are victims of trauma.   Our clients are suffering huge emotional losses.  Their pain washes all over us as we try to help them move forward through the divorce process and past the losses of their former life.  We deal with client after client with terrible problems, and we listen, sympathize and help.  Day after day, client after client.  It is exhausting, emotionally and physically.  As a result, most of us suffer from secondary trauma, aka caregiver fatigue.   It's why many family law attorneys leave family law.  A few of us decided that what we needed was a support group.  We all got together last month, and we are again this month.  Now, you would think that when you got a bunch of folks who toil in the Trenches together, all we would talk about was the Trenches.  You'd be wrong.  Kind of like the puppy walking community, we talked for a minute or two about the Trenches, then we chatted about other things.  We smiled, we laughed.  After an hour, we went back to work.  Everyone walked out with a smile on their faces, and a spring in their step.  We felt supported by each other and it helped us go back and do our work the way our clients need it to be done.  Here in the Trenches.

Friday, October 3, 2014

What Did You Say? I Was Multitasking....

Last night I attended the board meeting for our state umbrella group for collaborative practice here in Maryland.  As you might know, Maryland recently enacted its version of the Uniform Collaborative Practice Act.  The Act went into effect October 1, 2014.  The Rules Committee has just sent proposed rules for collaborative practice to the Court of Appeals for approval.  They will probably go into effect by the end of the year.  As a result of those two actions, we all anticipate that more professionals will want to be trained in collaborative law. Great, right?  Well, not so fast. Our last statewide basic 3 day training, which was offered for free by our Administrative Office of the Courts, had less than 60 attendees.  Next Friday, we have an all day advanced skills training; it's not yet full.  What to do to get more people to train in collaborative practice?  At the meeting, we brainstormed.  Many folks thought that in person trainings are passe.  Young professionals are technologically oriented; they prefer webinars.  There is a lot of pressure on professionals doing more in less time; young professionals are being pushed to meet billing goals.  Taking 1 or 2 days out of the office is too much time.  What if we did webinars?  What if we had video replays?  Could they be the solution?  Let's back up a minute, shall we?  How is participating in a 1-2 days webinar or video replay different from being somewhere in person?  Oh, that's right, if you're there in person you have to be completely present and participatory.  If you're there remotely, you can still work on other things, like say, work for clients, and not really pay full attention.  Cost was also cited as a reason for remote classes.  I'll give them that, as even though you still have to under pay the trainers, you wouldn't have to rent a site or provide food.

Obviously, the conversation disturbed me on many levels.  First, collaborative law is supposed to be a mindful, intensely personal practice involving a lot of interpersonal skills.  How do you develop those interpersonal skills if you're not around people?  Second, collaborative practice involves an entirely different way of approaching conflict and cases.  How effective is that training going to be if you're not really completely present for it?  Third, collaborative involves a lot of training in new skills.  The governing body for collaborative practice (IACP) is going to shorten the mandatory training requirement from 3 to 2 days.  As a trainer, I can tell you that what is going to get lost are the role plays and the demonstrations.  Instead of 3 days where participants can hear, see and do, they will have 2 days of listening.  How is a 2 day training like that, much less a 2 day remote training going to help people learn skills?  Fourth, training remotely or by webinar feels like the purpose of the training is just to say you did it, as opposed to actually embracing and learning how to practice collaboratively.  Just my $.02.  Here in the Trenches.

Tuesday, September 30, 2014

The Bravest Person I Know

I was talking to my mother today (a.k.a. The World's Greatest Mom - really).  As you may recall, my dad died just over a year ago.  Before he became too ill to go out in public, he and TWGM went out a lot.  They loved the opera, theater, travel, museums, jazz, symphony, parties, going out to dinner.  Then dad became too ill, and they went nowhere.  After dad died, TWGM took a year to grieve and to regain her balance.  Then, she decided she was ready to start going out again.  But wait.  She didn't want to go out alone.  She didn't want always to be the fifth wheel with another couple.  What was TWGM to do?  She thought about it.  She talked about it.  She mentioned it to her friends.  All of them, all of those people that were there when dad was sick and she just needed to talk.  You know what happened?  One by one, her friends said they would love to do one of the things she suggested.  Now, she is going with one friend to the opera, with another to the theater, with a third to the movies.  She has a full social schedule.  You know what each of those friends told her?  To a person they told her how glad they were to find someone to do those activities with them.  They just didn't think to ask.

TWGM story reminds me of the Trenches in two different ways.  First, I think of my colleagues here in the Trenches.  So many of us work in solo practices or small firms.  We buy into the myth that lawyers are supposed to know everything.  When we have problems with cases, we think we should be able to solve them without anyone else's help.  Then, one day, we ask someone's advice.  They're happy to give it.  Next time they have a problem, they ask us or someone else for help.  Everyone's clients benefit because one of us was brave enough to ask for help.

Second, I think of my clients. Their lives have changed irrevocably.  They are no longer part of a couple.  They used to have someone at home who would go with them to the movies or out to dinner.  Or maybe not.  Now they have no one.  It's a really lonely place to be. Most folks have already shared so much with all their friends - how horrible a marriage they had, how terribly the divorce is going, all the details while they were grieving the end of their marriage.  That sharing is a necessary part of grief.  But grief has to end and life has to begin again.  It's a rebuilding of a whole new relationship with the client in a new role as a single person and not part of a couple.  What better way than with the old friends in new roles, doing new things.  Maybe even turning that odd acquaintance into a new friend.  All you have to do is share - and ask.  Here in the Trenches.

Monday, September 29, 2014

Little Things Become Big Things - Quickly

Daughter is working hard to devise new ways to torture me maximize my fitness potential.  Every month, she provides me with a new set of workouts for the month.  She's helping me build my strength, my balance and my short and long twitch muscles.  This month, the upper body workouts have really been great- tough but doable.  The lower body?  Well, one set of exercises requires me to step up on a bench and lift the other leg. As I have mentioned before, I have pathetic balance.  In order to follow the exercise exactly, I was unable to have any weights in my hands (the better to balance myself on the wall when I was up there on the bench on one foot).  It made the lower body workout as a whole not as tough as it could have been.  I didn't say anything to daughter because it really didn't seem like that big a deal and I didn't want to be a pest.  Besides, it was only a month of workouts.  How much effect could it have? This weekend, I noticed my running stamina and strength was not as good as it had been. My per-minute mile time was a bit slower.  I mentioned it to Daughter, along with my perceived deficits with the lower body workout.  Daughter was not pleased.  First, she wanted to know why I waited so long to tell her, because second, there was an easy fix, involving letting my other foot touch the bench until I gained my balance.  She wanted to know if I was just going to not say anything and hoped it passed (busted!).  This morning, I took her advice, fixed the workout, and sweated my lower body off.  I bet my running time recovers as well - eventually.

As I sat there drenched in sweat, I thought about (you guessed it), the Trenches.  I can't tell you how many times I find out about "little things" that have gone on between my client and their spouse/other parent.  Usually, I find out after the "little things" have become big things.  Of course, when I have to help the client deal with the now "big" thing, they tell me about the little thing that started the ball rolling in the first place.  They tell me how they didn't want to bother me with such a little thing.  They say it didn't seem like anything much at the beginning.  They figured it would pass, it would go away. Then, when the little thing became a bigger thing, they were embarrassed to call and tell me that they hadn't told me about the little thing.  Well, now it's a really big thing.  They can't avoid telling me.  Now, not only must I fix the little thing that started everything, I have to repair the damage that resulted from ignoring it.  So much more work.  So much more money spent.  All because the client didn't want to bother me about the "little thing" that would have taken less than five minutes to fix at the beginning.  Here in the Trenches.

Wednesday, September 24, 2014

Driving Miss Daisy Fast and Furious

I hate domestic violence hearings.  For a long time, I denied that simple truth.  I said I did them.  I would appear in district court with my client, hating every moment.  Sometimes I would win, sometimes lose.  The outcome had no effect on how much I hated it.  Finally, I realized that some of my colleagues actually liked them.  They would get a gleam in their eyes at the mention of a chance to try a domestic violence case.  I decided they should do mine.  Now they do.  We are all much happier.

Why do I so dislike domestic violence hearings?  It is not because I have any personal feelings on the advisability of trying one of these cases.  It is certainly not because I don't think domestic violence occurs and its victims need protection.  It's not that I can't present a domestic violence case successfully to a judge, because I can.  It took me a long time and a lot of soul-searching to understand my intense reaction.  I hate them because the entire process, by its very nature, is directly contrary to the way I handle family law cases.  At a certain age, I think you can afford to be true to yourself.  So I am.

What do I mean by all of this?  The world of district court domestic violence hearings moves fast.  The reason it moves fast is that there are a lot of cases on a three hour docket and the court has to get through all of them.  You can have a hearing, and your hearing can take longer, but it might not be just then.  It might have to be in a day or two or three.  All the witnesses will have to come back.  Whether you represent the victim or the perpetrator, your client is highly anxious.  They're afraid - of more abuse, of a finding affecting their job, of safety, of having a place to live.  Every day the case is delayed keeps them in this extreme place of limbo.  You feel their fear and their anxiety.  Frankly, though, you don't really have time to deal with it.  The court wants you to settle.  Did I mention they have a full docket?  There are a lot of pieces to resolve to reach a settlement, and the clock is ticking.  You don't have a lot of time to deal with all the issues.  You don't have a lot of time to discuss and explore options with your client - you know, that client who is so anxious and afraid that they don't understand half of what you're saying anyway.  The client is overwhelmed.  You're not sure they understand. You, however, do understand.  You know what they need and what they can get in this setting.  You tell them what they need to do.  They listen because they trust you.  You make the decision for them and tell them that's what they need to do.  The case settles.  The client feels hit by a truck.  You know it's a good result, you know the client will eventually see that it was a good result, but right now, you're not so sure.

Back up in the last paragraph to where I said that you know what they need.  What I said from that point on is why I don't like trying domestic violence hearings.  I like to make sure my clients know all the facts, understand their options and have time and space to deliberate, discuss and decide.  I don't like making their decisions for them.  I prefer to work with them.  I don't like not having that space to know that they fully understand what's going on.  I don't want to have to guess and make assumptions about their understanding.  Some lawyers are good at it and comfortable with it.  I'm not one of them.  So I refer out my domestic violence hearings.  Everyone is happier.  Here in the Trenches.

Thursday, September 18, 2014

Time to Make the Donuts

This is a tale of two women.  First, there's Puppy Girl.  Puppy Girl has decided that the only dog food she will eat is homemade by her mommy, and only if it is made a certain way.  In a lot of ways, she reminds me of my Dad in the last 5 years of his life - if you had let him, he would have eaten New England Clam Chowder for 3 meals a day, every day.  Anyway, I tried making a variation on the usual theme.  She refused to eat it.  I thought if she got hungry enough, she'd decide it was acceptable.  Nope.  I made another just slight variation on the theme.  Still no dice.  She was not going to eat until she got what she wanted, even if it meant she starved to death.  I have to tell you, Puppy Boy and her parents were all mighty nervous.  NO worries, I made the old recipe, and she is again taking sustenance.

Second, there's me.  As you all know, Daughter is trying to kill whip me into shape.  I asked her to do it, I know.  In order to complete the Daughter mandated workout and work my running into the schedule, I have to get up at 6:15 every morning.  Some mornings, I look at the alarm and think I would like to do nothing more than turn it off and go back to sleep for another hour.  Some days, I even close my eyes.  Then, I remember that the reasons I'm doing these workouts are to improve my running time and to forcer old age to drag me in, kicking and screaming.  So, despite my not wanting to arise, I do.

Puppy Girl and I are like most of our clients, here in the Trenches.  Some of them, like Puppy Girl, want what they want, when they want it.  That they are not going to get it is beside the point.  If they can't get what they want, they will settle for getting nothing.  In other words, they will cut off their noses to spite their faces. With these folks, it doesn't matter how many times we explain that they can't get what they want, invite them to look at things a different way, or adjust their expectations to what is possible.  They don't listen, and mulishly hold onto their delusions.  Then, they are surprised and unhappy when they don't get what they want, and in fact, end up with far less than they should.  You know who they blame when that happens - not them, that's for sure.

Other clients are like me.  They have thought about what they want for an end result.  They have worked with us, their therapist, their families and friends, to envision what the future should look like.  Once they have that vision, they work with us to determine how best to reach their desired result.  They break it into small steps (or let us break it down for them), and they work through each part.  They know that sometimes the individual phase doesn't seem like it will bring them to their desired goal, but they trust in the advice of their professionals, much as I trust Daughter's advice.  They know that by sticking to the plan, they have their best opportunity of reaching their goals.  We love those clients.  Here in the Trenches.

Wednesday, September 17, 2014

The Path of Least Resistance

Sometimes, you have to work with what you've got.  Here in the Trenches, we also call that the path of least resistance.  There's the client who insists that her husband has been receiving her insurance reimbursement checks.  Her lawyer sends a letter to her husband's lawyer.  And another letter.  And yet a third.  The answers to them all are in the negative.  I'm sure her lawyer told her she was incorrect, multiple times, but I'm sure she insisted.  Hence the letter, hoping that another negative response with documentary proof, will convince her.  An annoyance to the other side, to be sure, but a small price to pay with an unreasonable client.  Then, there's the opposing party who was really positive that the number of overnights were miscounted.  He was also insistent that every dime he spent on the children was included in the child support guidelines.  Most of what he wanted included in the guidelines was not appropriate under the rules.  He prepared his own child support guidelines for the divorce hearing.  I had mine, with none of those items included.  I could have insisted on only using my guidelines.  We would have had a long and contested hearing.  At the end of the day, however, his guideline amount was not different enough from mine to make a difference.  It would take two extra minutes to introduce his, and actually his insistence might help my client in the future.  Plus,  the hearing would go more smoothly.  We used all of the guidelines.  Finally, what about the person who didn't follow the rules and was not allowed to present evidence at a court hearing?  They showed up on the day of trial and wanted to tell their story to the judge. The were angry and insistent.   Their story wasn't going to make a difference, it wasn't going to change the outcome.  It would, however, make them feel heard.  The judge lets them tell the story. They calm down and the hearing concludes.  Path of least resistance.  Working with what you've got.  Here in the Trenches.  

Monday, September 15, 2014

One Fish, Two Fish, Red Fish, Blue Fish

Today was the third time in a month I've met a client, spoken to them for an hour, and sent them on their way.  Free of charge.  Why?  Because I couldn't help them.  In one, I practiced the wrong type of law.  In the second, the client just needed some help problem solving.  In the third, I was in the wrong county.  It's about the third case about which I want to talk.

The client came in today.  Her original divorce and custody order was entered in a county in which I practice regularly.  Neither she nor her ex-husband live in that county.  They live in a county in which I do not practice - ever.  It is a small county, with a small legal community.  Outsiders are not well received, so I generally stay out.  But I digress.  This client needs to return to court.  She's tried other avenues to resolve her dispute with her child's father, but he won't engage.  As it takes two to engage in any voluntary process, she has no choice but to turn to an involuntary one.  That leaves her with a choice of courts.  Oh really, how much can it matter in which county a case is filed?  Plenty.  Each court has a different flavor.  You see, every bench has a personality.  It's part reflective of the community in which they sit: the mores and personality of the people they serve.  Part of it has to do with the each of the individual judges and their life experiences and attitudes.  Part of it reflects the interactions between the judges.  Remember, judges are a legal community of their own.  They see each other on a daily basis.  They are permitted limited contact with the rest of the legal community, so they band together.  They discuss their lives and their cases.  They influence each other, many times in subtle ways.  Only someone who knows the judges, the bench and the community they serve can decide whether that community is likely to look favorably upon his or her client.  Know your client, then know your court. It's part of what we do.  Here in the Trenches.

Wednesday, September 10, 2014

Ray Rice - A Force For Good?

A lot has been said about Ray Rice over the last few days, especially because the Ravens are in my backyard. For anyone who has been living in a cave without TV or internet access, Ray Rice is a football player with the Baltimore Ravens.  Back in February of this year, it came to light that he struck his then fiance and now wife.  I use the prior sentence because that's how the NFL and the Ravens looked at it.  Sort of feels not so bad, huh?  Sure, he "struck" her, but it was once and he said he was sorry, so that means it's all OK - right?  The NFL imposed a 2 game suspension (a lesser consequence than for marijuana use), he and his now wife diverted to therapy, and it was all taken care of.  Except it wasn't.  The sad part about this all is that the NFL will suffer no consequences as a result of their handling of this incident.  People won't boycott the games, and I doubt they will lose any sponsors.  After all, money talks, and the NFL and its star players generate a lot of revenue both for themselves and their sponsors.

Ray Rice didn't just "strike" his wife - he cold cocked her so hard that it knocked her across an elevator and caused her to lose consciousness.  Then, he dragged her by her hair like a sack of potatoes and dumped her body unceremoniously out of the elevator.  How do we know this?  Well (again, for those of you in a cave), this week TMZ decided to "leak" the surveillance video from the hotel where the incident occurred, so the world could see what the NFL and the Ravens already knew.  Well, the NFL and the Ravens back pedaled fast and furiously to cut Rice from the team and indefinitely suspend him from the game.  Bully for them.  They would have been absolutely content to give this misogynist a slap on the wrist had TMZ not leaked the footage.  Domestic violence is apparently no big deal in the NFL unless you get caught on tape doing it.  Great message; fabulous image.

Wait, it gets worse.  Rice's wife apologized for the role she played in getting hit. What????  Certainly the tape shows that she and Rice were arguing prior to her being knocked across the elevator.  But is there really ever a reason why a spouse should hit another?  Her apology seems to imply that it was her fault for getting him angry or for making him strike her.  They are both in counseling, and in couples counseling. His is court ordered to deal with his anger issues.  Unfortunately, domestic violence isn't about anger.  One of my discussion groups is talking about this issue, and Marc Brennan, an instructor at Morgan State University, had this to say in a discussion about an article on anger:   "Some experts in the field believe that anger management training for domestic violence perpetrators is worthless. This is because these individuals in general don't have a broad anger management problem, they have a violence issue toward their girlfriends, wives, etc. In other words, they don't assault the clerk at the grocery store or the bus driver or their boss. If their problem was anger management, they'd display this problem more broadly. In addition, domestic violence perpetrators can often manipulate those who teach anger management classes, or just put in their time in the class. Judges who order anger management classes should reconsider."  He's spot on.  

What is gratifying, however,is the response by the general public.  Most people and most of the commentary expresses shock and outrage at Ray Rice's behavior.  Certainly, domestic violence is and has been a serious issue, but except for its victims and those of us here in the Trenches who see its outcome, most people can't visualize it happening.  It is an abstract concept at best for most of the world.  Sure, we hear about Mike Tyson and Chris Brown, but not only do we not see the violence occurring, we rarely see their victims in all their bruised and battered glory.  Ray Rice was different.  This video gave a stark visual example of domestic violence, both in its awful power and in its lack of provocation.  It shocked a complacent public and drove home the horror with which the victims of domestic violence live every day.  Maybe, just maybe, this video will raise awareness, and spur the public to intervene so that there are many fewer Janay Rices, Rihannas and Robin Givens suffering at the hands of their domestic partners.  Here in the Trenches.

Monday, September 8, 2014

I'm a Posner Groupie

Another little known secret of mine - I am a jurist groupie.  One of my favorite jurists is Richard Posner. Now, that may be because in law school I was awarded the book award (received the highest grade) in torts, and as my prize received Posner on Torts, but I don't think so.  Judge Posner, on the U.S. Court of Appeals for the 7th Circuit, is possibly the most brilliant legal mind of our time.  If you don't believe me, please read his recent opinion striking down Indiana and Wisconsin's gay marriage bans.  No, really, stop and read it.  Now.  C'mon, it's only 40 pages.

What makes Judge Posner's opinion so fascinating is not just that he is a witty and engaging writer, which he is, but that he avoided the rabbit hole so many jurists before him have gone down, which is to debate the morality of homosexual vs. heterosexual marriage.  Instead, he analyzed the bans for what they are - discrimination against a suspect class, an identifiable group of people against whom there has been a history of prejudice, resulting in unequal treatment harmful to them.  In such a case, the analysis is "not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes."  Under a strict constitutional analysis, his approach is the only one which is correct.

When you look at the debate from that perspective, there's almost no way a ban on gay marriages can pass constitutional muster.  Believe me, Indiana and Wisconsin tried.  First, they tried the old "marriage is for the procreation of children argument."  Well, then, why do they allow infertile couples to marry?  Why do they allow first cousins to marry, but only after the woman has passed menopausal age? The state said that allowing non-procreative first cousins to marry provides "a model of family life for younger, potentially procreative men and women." Really?  Then, they tried the child welfare argument, which goes something like this:  children do better with two parents in a stable, monogamous relationship, but only if that relationship is between a man and a woman, and only if their child is their biological child.  Research shows children do better with parents in a stable and committed relationship, but there is no evidence that it has to be between people of opposite sexes, or that adopted children fare worse than biological children.

But wait, it gets better, but don't listen to me, listen to Posner:  " Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

Wisconsin decided that it should argue "tradition" as a reason to ban gay marriage and to analogize the argument in favor of heterosexual only marriage to the President's pardon of the Thanksgiving Turkeys.  Then, they decided to pull out the "prudent and cautious approach" card.  Wait, wasn't that one used by the segregationists opposing integration?  Finally, they decided that they should argue that if the state permitted gay marriage, then it would make heterosexuals less likely to marry.  Of course, that argument overlooks that most opponents of gay marriage are among the largest proponents of marriage in general, and so, tend to be married.

I could go on and on.  Posner's opinion strikes time and time again on a theme that is near and dear to us here in the Trenches - what is best for the children?  Is it better that they have a recognized family that loves them, a family in which both parents are recognized as having rights to see them, love them, parent them and support them?  Or is it preferable that children of gay unions have only one recognized parent, and the other parent have no rights as a parent?  I leave you with one last gem from Judge Posner:  "Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates."  The man makes you think long and hard about what it means to be a parent and a family.  His opinion should be required reading for homosexuals and heterosexuals alike.  Here in the Trenches.

Friday, September 5, 2014

Such A Dirty Word

Yesterday, I attended a continuing education program on the latest rule changes and new court decisions.  A whole group of new rules have taken effect regarding the award of attorney's fees.  Before I talk about the new rules, let's talk fees.  Many clients come into my office expecting that their spouse will have to pay all or part of their legal fees.  With relatively few exceptions, that doesn't happen.   Maryland runs on the American plan, which means everybody pays their own way.  That doesn't mean people in the Trenches are never ordered to pay the other side's attorney's fees.  There are a couple instances where fees may be awarded.  First, if one side has no or almost no money or assets to fund their case and the other side has enough money to fund their case and that of the other.  That doesn't happen all that often.  Second, if someone files a case or a pleading in court that has no basis in law or fact, they can be ordered to pay the other side's fees.  Third, if there is an agreement between the parties that permits the court to award fee.  Fourth, if there is a specific statute that says the court can order fees, whether you win or lose.  Here in the Trenches, that only applies to alimony, child support and some discovery violations.

As you can see, it's not easy getting the court to order the other side to pay your client's attorney's fees.  The new rules just made it that much harder.  Along with requiring a detailed listing of the fees, the work performed, and the attorney's customary fee, the new rules require a listing of the customary fee charged for the same services in the county and the customary fee prevailing in the attorney's legal community.  Those last two requirements add a whole other layer to a process that is already time consuming and difficult.  Why?  Because now not only does the person requesting fees have to set out in detail what their attorney charged them, but they also have to figure out in some way what other lawyers in their community would charge for the same services, as well as what the lawyers their lawyer considers their peers charged. How easy do you think it will be to get other attorneys to share that information? Not so easy.  That's a lot of extra work and cost for a client who already has no money for an attorney. I guess unless you're positive you'll be awarded fees, you probably won't want to spend the extra money to try.  Knowing how difficult it is to be awarded fees, the new rules ensure even fewer people will try.  When we say Maryland follows the American plan on attorney's fees, the new rules show we really mean it.   Here in the Trenches.

Tuesday, September 2, 2014

Timing is Everything

Sometimes, life is all about timing.  This past weekend,  Mother and I went to visit Daughter in Tampa. One night, we went out to dinner at a lovely historic restaurant.  We brought Daughter's boyfriend with us.  Boyfriend had not had a good week.  He's a bartender, and the restaurant at which he worked had told everyone three days earlier that they were closing in two days.  Our dinner was on his first night of unemployment.  Anyway, at dinner, everyone ordered wine with their meal.  It didn't arrive.  We were done eating, and finally it came.  We told the waiter it came too late for us.  The waiter apologized profusely.  You see, one of the bartenders had quit the night before, so they were really shorthanded.  Hmmmmmm.  We told him we knew a bartender who needed a job.  Boyfriend applied immediately.  He got the job.  It's a better job than his old one.  He thinks he was lucky.  Was he?  Certainly, all the timing was in his favor - the stars could not have aligned better.  If timing were everything, I'd say he was just lucky.  Timing, however, is not everything.  There's also hard work and ability, not to mention being the right person for the job.  Still, even though Boyfriend knew all of that, there's something about being lucky that just makes you feel good; and about being unlucky that makes you feel bad.  I think Luck sells you short because you discount everything you did to make the lucky thing happen.  You ignore the role of hard work, ability and personal fit, so you can't draw on it in the future, either to learn from your past mistakes or to draw on when the going gets tough.

We see a lot of the "luck" factor here in the Trenches.  Most of the luck we hear about it bad.  When I hear the word "luck," I see it as an opportunity for discussion and exploration.  Clients who talk about how bad luck brought them into the Trenches don't learn from their mistakes, they don't change their behavior and they are, therefore, destined to revisit the Trenches again and again.  I try to help them understand their role in creating their situation, so that they can help create the solution.  We can't change the rest of the world.  We can only change ourselves and how we react to it.  In the microcosm of a divorce, learning a different way of behavior helps keep folks out of my office in the future.  When I see former clients in successful relationships, I've done my job.  Here in the Trenches.

Tuesday, August 26, 2014


Let's talk a little bit more about Puppy Girl. What I didn't tell you in my last post was that as my Dad's health started to go downhill, he began to lose his taste for all the things he used to love to eat.  First, he stopped being interested in things that required a lot of chewing.  Then, it progressed to things for which he loved the taste.  Then, everything had to be pureed.  Finally, he couldn't swallow.  So, when Puppy Girl started to become a finicky eater, I had flashbacks to my Dad.  It was like reliving his decline all over again.  I was a wreck (hence the lack of posts), and had a hard time keeping myself together.  Luckily, instinct took over, finally, and I started to problem solve.  My panic subsided, and here I am.  Therapists would say I was having a little post traumatic stress moment.

Here in the Trenches, we deal with post traumatic stress a lot.  It happens most often in the early stages of a separation and divorce, when emotions are raw, and everything is reminiscent of the painful portions of the marriage.  Going to trial, with its emphasis on reliving the past, only re-traumatizes and forces clients to revisit painful events.  When the trial is over or the separation agreement is signed, most clients breathe a huge sigh of relief because the trauma is over.  Well, maybe.  At some point, somewhere down the line, there will be a smell, a look, an event, and all of a sudden they're transported back to that more painful time.  It's terrifying.  It's also normal.  Usually, so long as they keep perspective, the moment will pass and life will go on.  If it doesn't, then it's a sign that professional help is called for.  It's all about grieving and healing.  Here in the Trenches.

Monday, August 25, 2014

One of These Things is Not Like the Other....

Puppy Girl is getting older.  About two months ago, she stopped eating her regular dog food.  Why?  Was there something wrong with her that made her not want to eat?  All of her other behavior was perfectly normal. I tried soft dog food.  She ate it.  One cause down.  Was there something wrong with her teeth that made eating dry dog food hurt?  A trip to the dentist and lots of money later, we found nothing wrong with her teeth.  Yes, she had a cyst in her mouth, which they removed.  Problem solved?  A week later, she stopped eating the soft dog food.  I started making my homemade dog food again.  She ate and is eating it.  For now.  Maybe, it's just that as she's gotten older, her taste has changed and also her jaw isn't up to the dry food challenge.  Only time will tell.

What I'm doing with Puppy Girl isn't at all unusual.  Parents do it with small children all the time.  They keep asking questions.  The baby's crying?  Is it wet?  Nope.  Poopy?  Nope.  Hungry? No.  Gassy?  No.  Tired?  Yes! It's time for a nap.  Most of us have endless patience with our pets and our children. We keep asking questions until we find the cause and the solution.  Why don't we do it with adults?   I don't know.  All I know is that if we kept asking questions, there might be fewer folks here in the Trenches.

What do I mean?  I can't even count the number of people who come into my office wanting a divorce because their spouse stopped communicating.  Of course, I always ask what they mean.  They tell me their spouse stopped talking to them. They stopped answering their questions.  I ask what they've tried. Most folks look at me a bit blankly.  Well, they asked to go to counseling, but mostly, they did nothing. By nothing, I mean they did nothing different.  They kept asking questions for which they didn't really want the answers.  They seethed.  They assumed. They catastrophized.  What they didn't do was try to approach the problem differently.  They didn't break the new behavior down into components.  They didn't investigate further.  Is it only on Thursdays?  Is it every day?  Only on weekends?  Do they seem angry? Sad? They filled in their spouses blanks for them.  They figured adults, unlike small children and pets, would tell us what was bothering them.  If the death of Robin WIlliams teaches us anything, it's that adults don't always tell us what's wrong and how to solve it.  Yet, client after client assumes they would.  Had Puppy Girl had been their dog, she'd have starved to death.   Here in the Trenches.

Sunday, August 10, 2014

When You Put It All Together, It Spells "M-O-T-H-E-R"

Daughter has been after me for quite a while to add a sustained weight lifting regimen to my fitness plan.  As you all know, in the middle of June, she created my first comprehensive workout.  I have been diligent in following her instructions (no, I don't say that only because she reads the blog - it's the truth).  Just recently, my per mile running time has dropped by half a minute.  Coincidence?  I think not.    Way back when I was a teenager, I recall the tennis world being turned on its ear by the revelation that Martina Navratilova regularly made weight lifting part of her workouts.  Before that, everyone thought that weight training and working the muscles outside of one's sport made for more bulk and less speed.  Now, everyone, including me, is cross training.  We all see how cross training makes a better, well rounded athlete.  I even work on breath retention when I swim to increase my aerobic capacity when I run.  Weights help me both swim and run (and avoid the muscle mass loss that comes with age - ouch!). Weightlifters do cardio.  Runners, tennis players, basketball players,... lift weights.  We've learned that just doing your sport and doing drills directly related to your sport, isn't enough.  Pushing your muscles to create lactic acid creates endurance and strength, which translate to speed (relatively speaking, in my case) and power.  Having a well rounded exercise regimen is the only way to see sustained improvement, because everything in your body is interrelated.

Here in the Trenches, we understand interrelationship.  Although I usually settle custody before child and spousal support, I never settle support without settling property.  I never settle just one piece of property without settling it all.  Why is that?  They are all interrelated.  If a spouse keeps the house but doesn't have enough income or support to retain it, what good is that?  If a spouse keeps the majority of retirement but has no cash to buy their own home, is that a good result?  Maybe, but maybe not.  What if they keep the house and waive retirement, and they outlive the house proceeds?  Ouch!  We try to explain to clients that piecemeal settlement is almost never in their best interest because all the pieces have to fit together for an acceptable outcome.  When you either take a piece off the table, or fix it in place, you have removed some maneuverability and made our job here in the Trenches that much harder.  All the pieces need to be in play to create a life outside of the Trenches that is acceptable to all. We aren't trying to make life more difficult for the client, who just wants each individual piece settled so they are that much closer to the end.  By refusing to settle piecemeal, we are actually making it easier to fashion an acceptable life after the Trenches.  It makes for a better product, kind of like weight lifting helps create a faster running time. Here in the Trenches.

Wednesday, August 6, 2014

Show Me the Love

My bathroom remodel is humming along.  OK, not humming, but moving forward.  At any rate, the slabs of marble for the wall were delivered this week and installed.  That's them in the picture above.  It's hard to tell, but those are 3 separate pieces of marble, only two of which were from the same slab.  The stonecutter did a masterful job matching them and making them look like they belong together - this picture doesn't do his work justice.  Sure, we paid him for his work.  We also called him and told him what a fantastic job he did.  It made his day to have someone really appreciate his work.
This week I got an "Atta Girl" from a client.  They are surprisingly rare.  It's not that I don't do a good job for my clients.  The vast majority of them are very happy with my services.  They're satisfied.    Yet, they almost never say "Atta Girl," or "That was a stupendous argument."  They don't think I need it.  They show their satisfaction by paying my bill.  Don't get me wrong, I love being paid.  I like that clients put the same value on my services as do I.  Still, there's nothing that beats an "Atta Girl."  I was floating all day on that one.  It energized and inspired me.  Two little words.  So much power.  Here in the Trenches.

Wednesday, July 30, 2014

I Get the Orange; You Get the Peel

The hardest cases for us here in the Trenches are custody cases.  How do you assign a value to time and the ability to make decisions for someone's child?  The hardest custody cases are relocation cases, where one parent wants to move away from the area, of course with the child.  Usually, I'm good at finding a compromise to meet both the parents' and the child's needs, but relocation cases don't lend themselves to that kind of compromise.  On top of that, as much as I respect our judiciary, judges are not remarkably creative in fashioning custody schedules.  They don't have the time to get to know everyone.  They don't have time or the inclination to take everyone's needs and family traditions into account.  They just make a decision.  They give one parent primary custody and try to come up with some sort of long distance access schedule.  Period.

The fact is, in a relocation case, someone has to move.  There's usually no choice to stay.  That means one parent will have the majority of the time with their child and the other will have less.  It's a fact.  The question is who decides where the child is when - the parents or the judge?  We know what the judge will do.  What about the parents?  What if, just what if, the parents sat down and hammered out a schedule for each parent, let's call the schedules A and B.  One parent would get the parenting time in schedule A and the other would get schedule B.  They don't need to decide which parent gets which schedule, they just need to fashion the schedules themselves.  They can let the judge decide which parent gets A and which gets B.  Think about it.  If the parents design both schedules without knowing which of them will get which, they each have an incentive to make sure both schedules are acceptable.  They are both motivated to create schedules that work for each of them and their child because they don't know which one they will get.  I've done it before, and it works, much better than a third party making those decisions.  Here in the Trenches.

Friday, July 25, 2014

The Tortoise and The Hare

As you might recall, Daughter just graduated from college with her Bachelors of Science Degree in Exercise Science.  The first thing she learned is that without a fitness trainer's certificate, her degree would not get her a job.  To those of us here in the Trenches, who are unable to practice law despite having a law degree before passing the bar exam, Daughter's experience seems familiar.  This week, she took and passed her fitness trainer's exam and, most importantly, got a job.

Daughter was excited,.... and then called me in a panic.  Everyone was going to expect her to know what to do.  She worried that a client would come in and ask her to devise an exercise regimen for a specific purpose, and she wouldn't be able to do it on the spot.  What if a client came in and presented a need she'd never seen?  What if she really needed to think about it for a while before answering a client?  Would she get fired?  Would the clients think she's an idiot?  Her questions brought back memories of my first jobs after law school, and when I told them to Chrystal, brought back the trauma of her first days as a paralegal as well.  There is such a difference between going to school and actually applying what you've learned.  It doesn't matter if you went to a trade school or college.  School is school, and it's a controlled environment.  The working world is not.  So, what did I tell Daughter?   I told her that clients (at least the ones you want to keep) understand that even though you know your stuff, you may not have all the information at your fingertips at any given moment.  That's especially true when you're young and just starting out.  Clients appreciate that you don't just try to bluff them, that you don't stumble your way through a response that is only partially correct.  My stock response starting out was that I wanted to think about their question and research it thoroughly so I could be sure to address their concerns fully.  Clients got it; they appreciated it.  After all, who doesn't want to feel special enough to know you really want to answer their question.  Of course, I did do what I said I was going to do, and the clients were satisfied with the response.  Our lovely Chrystal had the same experience, and so I passed that advice on to Daughter.  She felt better knowing that she didn't have to decide and advise clients on the spot, but could think about her response before answering..

There is a lesson here for our clients here in the Trenches.  Simply because  someone wants an answer today doesn't mean you have to give it to them today.  The world understands, even if your spouse doesn't seem to, that a thoughtful response is better than a hasty one that is then changed, and changed, and changed again as you think on it more.  I'd rather wait a while for one answer than have a continuing barrage of new responses to the same question.   The  problem here in the Trenches is that  our clients are not faced with easy questions about minor things.  They are making decisions that  affect the rest of their lives.  On top of that, they are suffering the same anxiety of needing to respond faced by Daughter at a time in which  their higher level thinking is compromised.  For our clients, taking the time for a deep breath and detailed thought is imperative, yet they feel the emotional  pressure to get it done and over with.  Part of our job,is to help them take that deep breath, present them with all the facts for their options, and help them vet alternatives until they can find the right one for them.  That's not an immediate process.  They have to take the time to investigate the issue thoroughly.  Here in the Trenches.