Tuesday, March 25, 2014

It's About the Journey

I know you know that I run.  OK, at the speed I go, maybe we should just call it jogging.  Still, I get out there and put in the miles.  A little over two years ago, I bought the wrong  running shoes.  They were too small in the toe box.  At first, I didn't realize anything was wrong.  Sure, I noticed the toes were a little snug, but I just ran my miles.  After a while, however, my big toe started to hurt.  Then it hurt more.  I ignored it - until my knee began to lock up.  When bending becomes optional, you can no longer ignore the problem - sort of.  It was summer, so I thought I'd stop running for the summer.  After all, the pool was open and I could swim instead.  Just to make sure, I went to the doctor, who prescribed physical therapy for my knee.  At the end of the summer, I took my first running step and the pain in my toe brought tears to my eyes.  I looked for a different doctor.  I found one.  The problem was a pinched and constricted nerve in my toe.  Six days of steroids, and I was running again.  Trouble was, the whole toe problem created a bunion.  Now it was almost impossible to find a running shoe with a large enough toe box.  I started to settle for shoes that were good enough, but not right.  I was dissatisfied.  The toe started to hurt.  Surely, I couldn't be alone?  I started to search for the right shoe.  Today, I think it arrived in the mail.  I finally have a shoe with enough toe room.  My toes don't quite know what to do with the room, and it took a bit before they relaxed flat, but Imthink it's going to work.
Isn't my story like a marriage?  At first, you know there are problems, but they don't seem that bad.  You ignore them, because the rest of the marriage is so good.  After a while, thugh, you can't ignore the problems.  They are with you day and night.  That thing your spouse did that was so quirky when you were dating?  Now, it's excruciating.  Sometimes, the problem is small enough and the rest of the marriage is good enough that you can ignore the problems.  At other times, that problem starts to involve other parts of the marriage, like my toe led to my knee.  Some couples are lucky enough to find a marriage counselor who helps them solve the problem fairly easily.   Others are like me and my first doctor, and the counselor treats the wrong symptom.  Some problems, if they go on long enough, create a permanent change in the relationship.  Whether the couple can survive the change depends on a lot of things:  their desire to resolve the problem and stay together; the availability of appropriate tools and people to help them accommodate to the change; and their willingness to keep trying.  No one ever said marriage was easy.  It's hard work, kind of like finding the right pair of running shoes.  Here in the Trenches.

Monday, March 24, 2014

How Do You Define Success?

On Friday, I argued a motion before a judge.  It was  an extremely frustrating experience - for me.  The judge didn't know the rules of court, didn't understand what I was asking him to do, and generally didn't understand "why everyone didn't just get along."  Of course, if they could get along, they would not be divorcing.  I was so annoyed, I was spitting bullets.  I lost the motion.  Luckily for me, one of my intrepid paralegals was sitting in the gallery observing.  She also is the one who works on this case and deals with the client the most.  This is what she said.  The other side may have "won", but he sure didn't act like it.  He acted more like he felt he was lucky he didn't lose.  The judge's lecture about wasting court's time had some effect.  It might also have had some effect that the judge validated the feelings underlying his motion, so he felt heard.  We certainly didn't win, but our client wasn't upset.  She knew that the odds of our winning the motion was a bit better than even.  She was also heard; the judge heard the frustration on both sides.  Most importantly, her husband heard that she will defend her agreements and won't be bullied to change.  For her, that's a win.  She's happy.  I'm the one who is not, and for reasons about which my client and her husband do not care.    Sometimes we need those reminders that what the professional thinks is important and what may be strictly correct is not what is important to the client.  Winning and losing may not be in the result but in how the battle is fought and what the battle symbolizes.  Know thy client.  A lesson that bears repeating - Here in the Trenches.

Thursday, March 13, 2014

Dangerous Expectations

Last night, I was honored to participate in a Mock Trial series sponsored by the family law section of our local bar.  Our installment last night was the trial of the marital property segment of a divorce trial.  One of our judges was gracious enough to preside over the trial and to give us his feedback when we were done.  His comments mirror a lot of the advice I give my own clients here in the Trenches, and reinforce the truth of my admonitions.  Here is what he had to say:

1.   He thanked the attorneys for being detached and professional in the courtroom, and not stooping to personal arguments or ad hominem attacks.  Although it makes the clients feel better that their attorney is taking their case so personally, it detracts from the proceedings and the issues and facts the judge needs to consider.

2. Although clients want to tell their story, and want the judge to hear how badly their spouse treated them during the marriage and long-suffering they were (and every client wants this), the judge not only does not want to hear it, but also can negatively affect the judge's view of that client when making their final decision.

3.  The court is limited in what can do concerning "the stuff," known in the Trenches world as "tangible personal property."  If the parties don't agree on what to do with the stuff and, most importantly, who gets to keep it, the court can only order all of it sold or in limited cases, order that someone can use it for a short period of time - before it gets sold.

4.  Another word about arguing about the stuff.  The court does not want to hear about the dog, the goldfish, the record albums, the pots and pans and the sheets.  They will cut off the testimony concerning those items because of #3, above.  Further, they will be impatient with the client who raises the issue because they've wasted court time.  Oh, and also, see #2, above.

5.  The court wants the attorneys to educate it about the applicable law.  They want the attorneys to admit when an argument they've made is not supported by the applicable law.  They are open to any creative argument that can be supported by applicable law.

6.  Speaking of creativity, and perhaps the most important takeaway from last night....settlement is the only place for creativity.  The court is limited, severely, by what the law allows it to do.  The court may not be creative.  It may not think outside the box.  If the law doesn't support it, it may not give a party what they want no matter how much they may think they deserve it, or how compelling or sad the argument.  The law and the evidence supporting it are everything.  If you want a creative solution, stay out of the courtroom and stay away from a judicial decision.  Here in the Trenches.

Tuesday, March 11, 2014

Hate Thy Neighbor

I have neighbors I can't stand. Sure, I have neighbors I like, but I also have ones I despise.  Why, you ask? If I have a small pile of leaves in my driveway, they call the homeowners' association and I get a letter.  If I leave my recycling bin out an extra day, they call the homeowners' association and I get a letter.  If I get a large delivery and the box sits in my driveway until recycling day,  you guessed it - they call the homeowners' association and I get a letter.  At one point, I was getting one or two letters a month.  It made me angry.  I would see one of those letters, and my blood would boil.  I considered reporting the neighbors' violations (have you ever notice how people in glass houses usually throw stones?).  My responses to the homeowners' association were less than kind.  Then, I stopped and took a deep breath.  My getting angry wasn't going to stop my neighbors' behavior.  It wasn't the homeowners' association's fault my neighbors are jerks.  The only person suffering from all of this was me.  Well, that had to stop, and the only behavior I could control was mine.  So I did.  Now, when I get those darn letters, I respond with humor.  I try to think of some fun way to respond.  Not only do I feel better, but my relationship with the homeowners' association has also improved.  My neighbors?  Oh, nothing will fix that, but I don't care.

Here in the Trenches, our clients also have annoying neighbors, only they call them ex or soon to be ex spouses.  Their nasty neighbors bad mouth them to people who shun them, fire them and judge them.  Our clients feel persecuted.  They feel that they've been judged wrongfully.  They fight back.  They fight fire with fire.  Nothing gets better.  Their "neighbor" doesn't stop the smear campaign.  Heck, the clients don't even feel better for fighting back.  The ones who do end up feeling better are the ones who change their attitude and realize that the only way to heal is from within.  They adjust the way they view their neighbor's annoyance and react to it in a way that defuses instead of enhances the rage.  Then they can move on.  Here in Trenches.

Tuesday, March 4, 2014

It's How You Run the Race

Can you stand one more post about Disney?  Good!  Daughter and I ran the Glass Slipper Challenge, which is a 10k (6.2 miles) on Saturday, followed by the half marathon (13.1 miles) on Sunday.  Yikes!  Of the 3 intrepid racers who made the trip, I was the only one who truly trained for the double header.  Daughter especially, being 21, trained for the 10k, but not the half, and certainly not for both races.  So, only the day of the half marathon, I had some choices to make.   I could run my race, no matter what.  Sure, that would mean I'd probably leave daughter at mile marker 9. Certainly, it might mean daughter wouldn't finish in one piece or at all.  I might hurt my knee again at mile marker 11, but it would be a faster finish.  At least, if she stayed with me, she make it most of the way through, and besides, I trained and she didn't.  We could pace together until mile marker 9 and then I could pick up the pace and leave her, knowing I gave her a good foundation for 3/4 of the race.  Or, I could remember my goal of having fun, not getting hurt, and finishing, and mesh it with daughter's goal of finishing her first two races and runing across the finish line, and we could run and finish together.  You know I picked the latter.  It was a true collaboration, with me keeping her running and her keeping me from running too fast.  We were committed to helping the other realize their goals, and so we both did.

A truly collaborative case is like my race with my daughter.  Very few divorcing spouses share all of the same goals.  If they did, they wouldn't be in the Trenches, would they?   Most of them share some goals, but by and large, their goals differ.  What makes a collaborative case fail or succeed depends on one thing, and one thing alone.  That thing is the degree to which the parties not only want to realize their goals but also their spouse to realize theirs.  If the commitment for their spouse to get what they need is not as strong as their own self interest, then the case will fail.  If it doesn't outright fall out, it will not end satisfactorily.  Why is that?  Because when the couple gets to mile marker 9 in the process, one of them will pull ahead and try to leave their spouse in the dust.  Their spouse, realizing that all of that "collaborating" with them was just a ruse to lull them into a sense of safety and security, will pull out all the stops so even if they don't finish, neither will their spouse.  They will expend all of the resources they have to make sure the other doesn't finish, not that they both do.  What you end up with is a mess at the finish line.  There is always that moment when a party has to decide whether self interest or the greater good of the family wins out.  That is the moment at which you know whether your case is truly collaborative.  Not every case can or should be settled collaboratively.  Still, there's nothing like watching a couple help each other across the finish line in a collaborative case.  Kind of like me and my daughter.  Here in the Trenches.

Monday, March 3, 2014

Less is More

One of the fun things about the Disney Princess races is the costumes.  Almost everyone runs in costume.  Usually, it's a costume of a Disney character.   The costumes are really something.  Some of them are accurate down to the tiniest detail.  Others are not so detailed, but give the essence of the character.  One good example from this past weekend was Maleficent, the villainess in Disney's Sleeping Beauty.  There were quite a few people wearing Maleficent costumes.  One woman was wearing a particularly detailed costume.   She had on the two foot high headdress, long sleeved black dress that reached to her shoes, and a black and purple cape with a high collar.  The problem was, she couldn't run in it - at all.  She hobbled along in that black dress in the Florida heat for the entire race (at least I think it was, because I passed her early on).  Then there was another woman.  She was wearing a headband with 3 inch high renditions of Maleficent's horns, a black running T-shirt and black shorts.  Over her shoulders, she had the merest of a cape, just 24 inches of it.  Her entire costume screamed Maleficent.  And she could still run fairly quickly.  There were a lot of examples like that this weekend, with lots of Disney characters.

The trick to a successful Disney running costume is to convey your message without getting bogged down in the details.  What you want to do is distill the character you're representing down to its essential details.  Any more than that and either you miss the mark entirely because too many details invite too direct a comparison with the original (for which you will usually fall short), or because it bogs you down so you can't complete your intended action, run the race.  Too few details, and no one knows which character you are.  There's a balance between too much and too little.

It's the same way when we present a case to a judge here in the Trenches.  Clients want us to elicit every single detail of their lives on the stand.  They figure the judge can only understand what their lives were like, can only see the righteousness of their claim, if they hear every little miniscule unimportant detail. Actually, what presenting all those details gurantees is a bored judge.  They don't care whether the incident occurred in a corner of the bedroom in front of the blue, no green, drapes at exactly 1:02pm.  What works much better is to paint a picture for the judge, kind of like creating a Disney running costume.  We want the judge to get the feel of what life was like, what everyone did and how they did it.  We paint it with broad strokes, providing enough details for the picture to be complete, but not so many that we trip over ourselves.  It's the important details, not all details.  This gives us more time and space for a global picture, it gives us space for the emotion to come through and be felt, rather than lost in a mass of facts.  Our job is to help you tell your story so it can be heard and understood.  Usually, that means less is more.  Here in the Trenches.