Monday, October 26, 2015

What if a Lawyer Were Vulnerable?

I am sure I have mentioned before that I am a huge fan of Dr. Brene Brown.  I especially love her work on vulnerability.  Permission to be vulnerable is very unusual in the Trenches.  It's not OK for divorcing spouses to be vulnerable.  It's certainly not OK for their attorneys to be vulnerable.  After all, if we're vulnerable, the other side will take advantage of us.  They will leverage our vulnerabilities to their advantage and we will lose.  Or will we?  You know I have a story to tell.

I entered a case late in the game.  The parties had already been in court, off and on, for many years.  The father had his story and the mother had hers.  Dad's attorney is someone I have known for years and respect greatly.  Mom fired her attorney and hired me.  To say that there was already a tone to the litigation would be an understatement.  My client couldn't stand the other attorney, and in the only mediation session we had after I entered the case, I could see why.  Everyone was entrenched, not only in their positions, but in their emotional investment in the cause.

The other attorney and I tried to talk.  I realized immediately that everything I was saying was being taken exactly the way I didn't want it to be.  I stopped and took a breath.  Then, I apologized.  I told the other attorney how sorry I was.  I was sorry that my tone was adversarial.  I was sorry my choice of words compounded the message.  I told her I didn't mean it that way, because I really thought we could help these clients settle their case, and would it be OK if we backed up and I started again.  She was fine with that.  The thing is, my being vulnerable and telling her I blew the interaction set the stage for all of our other conversations.  We kept stopping and checking in to make sure we were not being misunderstood and that we were not giving the wrong impression.  My vulnerability enabled her to be vulnerable too.  We settled that case in a way that makes me proud of what I do. We could never have done it without letting down our guard, understanding what was happening, and dealing with it.  Then, we could get down to what we needed to do, trusting that the other was with us on the same journey.

We tell ourselves stories about whether being vulnerable is safe.  Is it worth the risk?  What happens if we're vulnerable and we're ridiculed or taken advantage?  Before Dr. Brown and this case, I might not have taken the risk.  It was scary.  I probably won't in every case.  Here, it was with the right person at the right time, and it paid in spades, not only for our clients, but for our relationship as counsel moving forward.  I wonder what it could do for our clients and their ability to progress?  Here in the Trenches.

Wednesday, October 21, 2015

Why Would I Link Up With You?

I received another LinkedIn request from a former client.  I get those every so often.  When I do, I think  long and hard about whether to accept.  LinkedIn is all about relationships; I'm all about relationships.  Unlike Facebook, LinkedIn remains on a professional level, so usually I have no difficulty accepting a LinkedIn request from a former client.  It's nice to connect on another level with people, as I really do like most of my clients.  Present clients are a different matter altogether.  I don't know why I draw that distinction, but I do.  It's probably because at that point, we have a different relationship than two professionals relating on a professional level.  I am relating on a professional level, but they are very much at a personal level, and remain there until the representation is over.

Every once in a while, I receive a LinkedIn request from a former client that makes me angry.  I pour my heart and soul into representing my clients.  Some I care about more than others - whether it's because the cause was more compelling or the client's situation touched my heart, or maybe it's because their case dragged on for years and I got to know them.  That's OK.  What is not OK is when those clients run up a bill and don't pay it.  I tell all my clients that if they can't pay the bill, call me and we'll work something out.  Most listen to me.  Others do not.

It really hurts to pour your heart and soul into a case and have the client not value what you do enough to make some payment toward it without constant nagging or a court judgment.  One client like that never finished paying her bill, and sent me a LinkedIn request.  Two other clients declared bankruptcy, which wiped out my bill.  I get that people have financial difficulties, but the two who declared bankruptcy never called me first to tell me:  I found out when I received a copy of the bankruptcy notice from the court.  Those clients, I represented through a parental kidnapping where I got the children back and the other through a really difficult custody case.  Not so much as a "I'm sorry I have to declare bankruptcy and your bill is part of it."  They both sent me LinkedIn requests.  Why would I join to my business network people who can't take care of their own business, and people who didn't respect mine?  Are they that clueless?  Thanks for letting me rant.  Here in the Trenches.

Sunday, October 11, 2015

How We Do Things...Should We?

 I recently went to war with another attorney.  The case began, both of our clients were angry.  He sent my client the standard 30 Interrogatories (written questions for my client to answer in writing under oath) and 82 requests for documents.  Most of those document requests were for the last five years of paperwork.  I sent him similar requests.  I received almost no documents.  My client provided the requested five years of paperwork; his client gave me six-eight months' worth.  I wrote him a lengthy deficiency letter.  He responded with a nasty, personally attacking letter to me, telling me he would provide no more documents because he didn't think I needed them and giving me his personal assessment of what type of person would insist on them.  I sent him a letter telling him his response was not OK.  I have to tell you, his response really damaged our relationship.  The case settled.  Last week I saw this attorney at a social event.  He told me he was sorry for being, not nasty, but snarky (I had to provide him that word).  He then went on to tell me "but" I was wrong, I didn't need all those documents, and he has trained his staff not to send deficiency letters when opposing parties don't fully comply with his requests, unless he has a good reason for wanting the documents.  I had two take aways from this exchange.

First, it didn't feel like an apology  No real apology begins with "I'm sorry, but...."  Then again, I never expected a true apology from this person.  Luckily, I have been reading Brene Brown's new book, Rising Strong (which, by the way, I wholeheartedly recommend).  She makes a forceful argument that people are usually doing the best they can.  I know that's a difficult concept here in the Trenches, but I invite you to try it.  I have, and it has lowered my blood pressure and helped me to sleep at night.  At any rate, I digress.  I thought about Dr. Brown's premise as I pondered my colleague's apology, and I came away with the conclusion that the apology was sincere.  The incident of which I speak was months ago.  Obviously, it bothered him enough that it has stayed on his mind during all that time.  He valued the relationship with me enough that he felt he had to say something by way of apology.  He simply is not the kind of guy who apologizes, so he doesn't know how.  He was doing the best he can.  It helped me accept his statements for what they were - an apology.  Is he my favorite person?  No, but again, knowing he did the best he could helped me accept his apology for what it is and forgive him.

Second, the whole exchange got me to thinking about the way we do things.  There are very few times those of us here in the Trenches really need three to five years of documents.  Yet, we ask for them regularly, write deficiency letters about them and file motions to obtain them.  Why do we do it?  There are a few reasons.  First, it's habit.  Simply put, it's how we've always done things.  Part of the reason for that is that we know that well before someone makes the decision to divorce, they start planning.  We have no way of knowing how far ahead of the divorce announcement that is.  We don't want to miss the smoking gun of financial or emotional planning, so we ask for documents for many years back.  We also know that if we don't, and it turns out our client's spouse was planning that far back, our client will be unhappy and they may sue us; our insurers like us to ask.  That whole malpractice spectre is the second reason.  Even though we love and support our clients, we're a bit afraid of what they will do to us if they don't know everything and if we leave any stone unturned.

The third reason is that because the other attorney sends us 82, 117, or more requests for documents (luckily, we're only held to 30 interrogatories), and our client is suddenly buried under this onerous demand on top of everything else, our client wants their spouse to feel the same pain.  Believe me, I have requested only those documents I knew I needed, and at least half the time, my client is furious that I have not made their spouse feel their same pain.  Many times, it does no good for me to explain to my client that I have thought deeply about their case and requested only those documents that I feel we need, and that the other side's attorney obviously has not, but when they do, they will reach the same conclusion.  The client is feeling the pain of complying with the requests and wants their spouse to be identically burdened.  The client understands most of those documents are unnecessary, and they don't care.  Does that mean I send out another set of document requests?  No.  OK, I'll admit that I have on occasion, when no amount of explaining works.  In the those cases, though, the client has come back later and told me I was right, they just couldn't see it at the time.  Of course, this is thousands of dollars later.  Still, I regret not holding fast and not doing as they asked when I know I shouldn't.

I've said it before and I'll say it again, the client needs to understand why they hired a lawyer.  Did they do it to inflict maximum pain on their soon to be ex-spouse?  If so, I'm not their girl; there are still attorneys out there who will do that.  Did they do it solely because they didn't understand or want to be bothered with the paperwork involved in getting divorced?  Did they hire a lawyer for their expertise, experience and counsel about what is necessary to shepherd them through the process?  If it's the latter, then all those darn documents probably aren't necessary.  If it's the latter, then the client and the lawyer should be having deep conversations about what they want from the process, what they hope to achieve and how to do it.  They then should tailor those discovery tools to meet those goals - NO MATTER WHAT THE OTHER SIDE DOES.  Only then can we effect real change in the process.  Here in the Trenches.  

Thursday, October 1, 2015

Really, Pope Francis?

I am so disappointed in Pope Francis.  I wanted to like him.  I really did like him. I liked his message.  I liked his treatment of the poor and disenfranchised.  I thought when he came to this country, he did everything we expected of him.  Then, he met with Kim Davis.  You remember her - she's the county clerk in Kentucky who refused to issue marriage licenses to gay couples on religious grounds.  Unlike the rest of the people who are upset about her meeting with the Pope, I am not annoyed on civil rights grounds alone.  I am upset because the Vatican lumped this meeting in the same communique as the Pope's meeting with a group of nuns who are suing the government because of the contraceptive provisions of the Affordable Care Act.   With all due respect to his Holiness, the two are not the same.  Certainly, both are conscientious objectors, but that's where the similarity ends.

This country was founded by people who believed in religious freedom.  They believed in it so strongly that they wanted to ensure that no person was treated differently by the government because of their religious beliefs, or the religious beliefs of their government officials.  That is why we have the separation of church and state:  religion is meant to have no part in our government.  That means that elected government officials are to uphold the law no matter their religious beliefs.  If they can't do that, they have no business serving as government officials.   I respect Kim Davis' right to be a conscientious objector as a private citizen, just as I respect the nuns' right to object to the contraceptive requirements of the Affordable Care Act.  The difference is the nuns are private citizens using legal channels to determine their rights; Kim Davis is an elected government official.  I do not respect her right to subvert the laws of the Kentucky and of the United States by refusing to uphold the laws which guide the position to which she was elected because of those beliefs.  Kim Davis violated the law by denying legally recognized civil rights to a discrete group of people.

We all need to remember that the Pope is not just a religious leader; he is the leader of a sovereign power.   I am disappointed that no one in the Papal hierarchy thought of that before he met with Ms. Davis.  I am certain that his Holiness thought that all he was doing was giving support to someone who felt strongly about their religious beliefs.  I hope that he did not intend to send a message to the LGBT community.  By meeting with her, he and his country condoned the subversion of the principles upon which this country was founded. He condoned Kim Davis' violation of the laws of the United States.  By meeting with Kim Davis, Pope Francis insulted his hosts, and that makes him a bad guest.  Here in the Trenches.