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.