Sunday, September 16, 2018
Once again, a hurricane bore down on the United States. Once again, people in the affected areas were told to evacuate. Once again, hundreds did not, leaving them stranded in their houses as the water rose, or worse, dead. Why is it that this keeps happening? It's not because people don't believe that the storm will hit (for the most part); it's not that they think the storm will be less severe than it's predicted to be, because surveys show most people believe the storm will be worse than forecast. The reason is cognitive bias. We know the storm will be bad, but we don't think it will affect us. None of our neighbors are preparing, so we don't need to. We forget what it was like the last time (which is also another explanation about why women have more than one child after enduring labor and delivery the first time). We focus on the immediate discomfort and decide to put it off. We think if we do one or two things, we have done enough.
In truth, our minds play tricks on us all the time, not just in the face of a natural disaster. When was the last time you checked to make sure your long-term disability policy covered enough of your income? Have you updated your homeowner's insurance policy to account for the increase in the value of the house and its contents? Probably not. In fact, you probably even forgot you had those things except when the renewal notices arrive.
I'm sure you aren't surprised that Here in the Trenches, we come across folks who are unprepared all the time. We have clients who saw the signs that their spouse was cheating or that their spouse was mishandling the finances, and ignored them. We have clients who have been horribly abused, physically and emotionally, who downplay the severity. We have clients who, when faced with overwhelming evidence that their spouse is taking a scorched earth strategy, still believe in an amicable resolution. I'm not talking about stupid people, yet these folks fight us tooth and nail when we try to get them to see what's obvious to us and to take action. Then, when like the hurricane's victims, they are left high and dry, they can't understand how it happened, and somehow it's everyone else's fault.
I know facing reality is hard. I'm human just like everyone else and underplay things that go wrong. I'm not always the fastest at acting to correct the things that should be corrected. I am, however, pretty darn good at protecting myself and I'm really good at protecting my clients - if they let me.
In that light, I have a list of things you can do to protect yourself, even if disaster never strikes. If you do just one of these things, you will better off than the majority of the people I see. If you do them all, then you're golden. Notice, the list is short.
1. Know what you own, where it is and what you owe. You don't have to make a formal spreadsheet but have a good idea of what it is and where the paperwork is (making a copy and keeping it in one place is ideal). I can't tell you the number of spouses who no clue - and that hurts you if you find yourself Here in the Trenches, or if you find yourself widowed.
2. Apply for credit in your own name. I don't care if it's a store credit card with a $200 limit. Have something. I had a friend whose mother became widowed and even though she had significant assets, she had a hard time refinancing the house and buying a car because she had no credit in her name at all.
3. Develop a marketable skill. What if my friend's mother had no assets? She was a housewife for 30 years and had no marketable skills. She would have starved. While you are married and have at least one other source of income is the time to take that word processing class, get a certification, renew your existing certification. Don't leave yourself dependent on the good health and employability of somebody else. Even if you get alimony, that all goes away if the payor gets hit by a bus or dies.
Do one of the above and you're ahead of the pack. Do two, and you're increasing your lead. Do all three, and you win the race. Here in the Trenches.
Saturday, September 8, 2018
1. A deposition is not a conversation. A deposition is when the other side's attorney sits opposite you at a table and asks you questions, the answers to which are made under penalty of perjury and recorded by a court reporter. The attorney can ask you about ANYTHING that could lead to admissible evidence at trial. In other words, they can ask you about just about everything, and you have to answer. If you are a party to the case, that deposition can be used in court to contradict your testimony at trial or in place of your testimony at trial. It's that important. It is also the only time that the other side's attorney gets to speak directly to you. Here's what we've learned in the Trenches - if we treat the deposition as a conversation, you will too. You will talk to us like you talk to your friends and acquaintances. You will drop your guard, and you will say things that aren't entirely accurate or that you wouldn't have said if your guard was up, because that's how regular conversations go. A deposition is not a conversation; it is court testimony in an informal setting. Treat it that way, and you won't learn an unfortunate lesson at trial.
2. Completing discovery isn't optional. I know that answering interrogatories and producing documents is a massive pain in the posterior (remember, I was a client once too). It seems ridiculous to you to provide every darn document requested and overwhelming to answer every interrogatory fully. Do it anyway. Let me say that again - Do it anyway. If you don't answer every question completely, if you don't provide every document requested, and then try to introduce at trial information or documents that should have been provided but weren't, you will get a nasty surprise. Your information or your document may not be admitted at trial, and if its an important piece of evidence, that preclusion could cost you a decision in your favor. If that happens, it's no one's fault but yours.
3. Monitor your electronics. We are so electronically connected these days that sometimes it's hard to remember everything that has a password. Sure, most people remember to change the password on their email and their social media accounts, but what about Alexa, your Nest thermostat, your Ring doorbell, your digital door lock, your security camera? Did you know those all could be used to spy on you or to drive you a bit crazy? Do you have your computer open while you're talking to your paramour? Are you sure no one has hacked into the computer's camera and microphone? Is the GPS enabled on the phone that's on your spouse's cell phone plan? Is your iPad password protected -are files you don't want your children (or spouse) to see separately protected?
4. Monitor your online presence. I love the phrase that is being shared on social media - "Dance like no one is watching. Post on social media like it will be an exhibit at your deposition." Enough said.
5. A text is not an oral conversation. It is a writing. It is not a "he said; she said." It is evidence of what was said, every much as is an email. Treat your texts as if they will be evidence at your trial. Don't call your spouse names. Don't rant. Think before you text. It is so much easier to press "send" in a text than in an email, and for that reason, many people send texts in the heat of the moment. Don't. It will come back to haunt you. Be businesslike and polite and you won't go wrong.
Learn these 5 lessons of the Trenches and you can concentrate on mastering the bigger life lessons. Here in the Trenches.
P.S. If you don't recognize the picture, it's from the scene in "My Fair Lady" when Audrey Hepburn finally "gets' her diction correct.
Saturday, September 1, 2018
I have a real love/hate relationship with technology. Sure, I need it, and when it works, it’s great. When it doesn’t work, it’s a nightmare. Many moons ago, actually at least a decade, I decided I had enough clients that I need case management software to manage my contacts, check for conflicts, keep my electronic client files in one location, automate documents. I did my research, exhaustively. I read everything I could on the various software. I talked to everyone who had the software about what they liked and disliked. I went to the ABA TechShow and talked to the vendors and played with the software. I made my choice. It has not worked as well as I hoped. Every year, they updated the software, and when they did, it changed the data fields, so I had to hire a consultant at thousands of dollars every year to fix it. I stopped updating. They sold the company to one of the big legal data companies. That company updated again, plus refused to provide support if you didn’t subscribe to annual updates. Well, given all I went through, I wasn’t going to do that. So, I have sat for many years, not really happy, but not sure what to do about it. It works well enough, but it’s not great. I’m not really happy.
Given that everyone in my office, including me at times, is not physically in the office, we made it possible for everyone to hop on our server remotely. Given, however, that the power tends to go out at the office periodically and throws the server offline, that system isn’t perfect and I thank goodness one of us lives within walking distance of the office to turn it back on. I thought we could migrate up into the cloud, that we could move all of our data into a new online service that would solve all our problems. Then I started talking to others, reading reviews, reading comments, and realized the cloud systems are no better than what I have. Plus, they charge a pretty hefty fee each month for my four users. So, I feel stuck. Actually, I feel paralyzed. It hurts to stay, but it may be worse to leave.
The story sounds familiar, doesn’t it, not because we all have a love/hate relationship with technology, but because it sure sounds like I’m talking about leaving a marriage. For so many of the folks who come into my office, this is their story. They dated their spouse a long time before marrying. Their spouse seemed to have all the things they wanted in a mate. Their families liked them. Then they got married, and it didn’t work out quite as they planned. Maybe their spouse wasn’t who they seemed to be. Maybe their spouse changed. Maybe their needs changed. Whatever it was, things weren’t great. They weren’t awful, but they had the sense they could be better. They tried to make things work - they went to counseling, had date nights, spent time alone. Still not great, but not bad enough to do anything. Then that new person at work seemed to like them; they sort of connected, even though they would never cheat. It made them think that maybe there’s someone else out there with whom they could be happier? But what if they’re not happier? Then what? They’ll be alone; they’ll have torn their family apart for nothing. Maybe it’s better to just stay where they are?
What’s a client to do? What am I to do? For me, I’m going to keep researching and asking questions, of colleagues, vendors, and techs. I figure one day there will be that one thing that makes my decision for me, either to go or to stay. That’s how it always is. On that day, and not before, I will decide. Then, I will be at peace with my decision; I will stop feeling angst and face the exhaustive process of either migrating my system or making do with what I have.
That is why I am, at times, exactly the same as my clients. Certainly, many of them have reached that point of decision when they walk in my office. Many more, however, are still ambivalent. They’re not positive they want their marriage to end or the custody to change. With those people, I spend a lot of time exploring what they really need right then, what they will need to know in order to make their final decision, how they can gather that information, and how I can help them tolerate and manage the uncertainty. Going into the Trenches can be a grueling process, and it can be worse if you’re not sure that’s what you want to do. Sometimes a lawyer can help you move forward even if moving forward is staying where you are and being comfortable with it. We have a lot more experience than our clients in managing uncertainty, analyzing options and helping them find creative solutions. Your lawyer - not just when you’re sure you want to divorce. Here in the Trenches.