Character Building and the Wrestling Mat

Sometimes just showing up to make you a winner.  As you all know, my son is a high school teacher and wrestling coach in Prince George's County, Maryland.  His school has a strong wrestling program, thanks to a dedicated group of adults.  Many of the schools in the county are like that.  For some, however, for whatever reason, the wrestling program is weak.  Of the 14 possible weight classes, these schools have wrestlers in 3 or 4 of them only.  My son's school has 14.  The winners of wrestling meets are determined by the points earned in each weight class.  If you do the math, you've figured out that even if each of the 3 or 4 wrestlers on these teams with weak programs earn the maximum number of points, their team will still lose - every time, unless they wrestle another team with 3 or 4 wrestlers.  Yet, the wrestlers on these teams show up to every match and wrestle as well as they can.  Even when they lose, I think just showing up makes them winners.  How many of us could step out on the mat twice a week and commit to doing our best even when there is no hope of victory for our team?  Sure, the individual wrestlers with the best records can win individual glory at the county, regional and state tournaments at the end of the season, but the operative words here are "end of the season."  In the meantime, they show up with their tiny teams and give it their all. You have to admire the dedication.  It's easy to be a good sport when you're winning.  It's easy to pull together for the team when the team is large and strong.  It's easier to take losing well when you don't lose very often.  In my book, "easy" doesn't help us grow and improve; adversity does that.  It makes you look inside yourself for validation and not to others.  In the long run, that's not a bad thing.

Oh heavens, is she saying that it's OK to lose everything in my divorce and I should be happy about it?  No, of course not.  Let's be frank, however.  Most divorces are hard.  They are emotionally draining.  They are difficult transitions.  They bring a lot of change.  Some people have really strong teams of family, friends and professionals on their side to support them through it.  Others do not.  What's funny is that you would think that the ones with a lot of support do better during and after divorce.  You'd be incorrect.  Sure, a lot do.  What I've found, however, is that the ones with less support are like those weak wrestling teams.  They show up for meetings and court with just their attorney and maybe one friend, but they show up.  They are more engaged in resolving their dispute because no one else will do it for them.  They look to themselves to work through the obstacles.  They make the hard decisions by themselves and live with the consequences, knowing whatever it is, it's what they chose.  They have no one to blame but themselves.  After all, what choice do they have?  It's harder for them than the clients with a lot of support. These folks tend to leverage the support they have in a way that is effective for them.  They are more likely to work with their professionals as part of a team.  In the end, they amaze themselves at what they can do and how much they learned from working their way through the Trenches.  They are living proof that adversity can make you strong.   Here in the Trenches.

I Can't Hear You.

A week ago, I was sitting with a client, and listening to her story.  It was a sad story, full of despair.  Her husband had a severe mental illness and a substance abuse problem.  He left her and their son.  He was trying to get well, with not a lot of success.  She was holding everything else together - parenting their son, maintaining the home, and paying all of their bills.  She was committed to helping him beat his addiction and mental illness.  The only problem was that she was so overwhelmed by fear of financial ruin that she couldn't concentrate on his issues.  He was focused only on his problems and didn't care about the money.  He accused her about caring only about the money.  It wasn't true, but the fear that he wouldn't keep depositing his checks in the joint account so she couldn't keep a roof over their heads drowned out everything else.  I advised her to talk to him and tell him the truth - that she was committed to their marriage and to helping him, but until they addressed her issue about the money, she couldn't focus on what mattered.  Hopefully, he is well enough to understand, because if he can and address the simple issue by reassuring his wife, he'll probably save his marriage and regain a powerful ally in his battle.

Today, I was sitting with my fellow law school professors to prepare our class for the upcoming week.  The ideas were flying out onto the paper.  All I could think about was how much time each piece would take.  I worried about whether we would have enough time to do all the things we wanted.  When should we put the breaks?  Should we rearrange matters so the time flowed better?  Everyone else wanted to get the ideas fleshed out.  All I could think about was time.  Did I mention all I could think about was time?  My other professors wanted to deal with that last and wouldn't discuss it.  Until I figured out the time, I couldn't hear any of their ideas.  I was too stressed about the schedule.  So, what did I do?  While they talked, I figured out the basic time table for our class.  I put it down on paper.  It took me less than 5 minutes.  Once I was done, I could concentrate again and focus on the substance of the class.

Like my client, once the housekeeping was taken care of, I could focus on the real issues.  How often does something like this happen in the Trenches?  All too often, unfortunately.  One spouse wants to settle all the issues together, and won't agree to any one part until they're all agreed.  The other spouse doesn't know how they're going to pay the mortgage next month, and until that one question is answered, can't focus on anything else.   What are the odds the case will settle if the mortgage issue isn't resolved first? Not good, that's for sure, because the spouse who's worried about the mortgage can't focus on anything else.  That's very different from a spouse who wants to settle each issue separately as opposed to together, not because they can't focus, but because that's how they want to do it.  There are a lot of examples like that here in the Trenches.  Part of our job is to determine which issues are like my client's budget and my timetable and which are just different approaches to reaching a global solution.  There's a huge difference between the two and determines whether we settle the case or just spin our wheels.   Here in the Trenches.

Mr. DeMille, I'm Ready For My Closeup

On Monday I did something I hate doing - I had my picture taken.  Yes, I'm one of those people who never thinks they look good in photos, so I avoid them like the plague.  I must have inherited this from my mother, as my father loved to be photographed and he always looked good.  I digress.  If you've looked at my photos on my website, here and my Facebook page, you probably figured they needed updating.  So did I.  As luck would have it, one of Son's former wrestlers is a photographer.  He likes taking pictures.  He'd like to do it for a living.  He's at most of the matches, just like me, and I see him taking photos.  I asked if he wanted to do mine.  He agreed and we met.  You know I almost never name names here, but I'm making an exception.  Eugene Maddy is the young man's name, and he did a really lovely job.  That's high praise indeed from someone who rarely meets a picture she loves.  He has a good eye and an engaging personality, and he really captured my essence. (That's on top of being conscientious and reliable).   I'm sure you'll agree when they're all posted soon, and if you look at my blogger profile, you'll see one of them already.  (If you want his number, I have it).

Anyway, the one thing Eugene and I had not discussed prior to the shoot was price.  He knew me, I knew him, and we knew we'd work it out.  At any rate, he quoted me a very, very low price.  I know why he did - I'm coach's mom, he knows me, he's just starting out, he doesn't have the fancy cameras and equipment more seasoned photographers have..... It sparked a discussion about pricing.  You see, those are all really good reasons for him to quote me a lower price.  It is not a good reason to give his work away.  Pricing not only takes into account experience, and in Eugene's case, possession of specialized equipment.  It also takes into account other factors like overhead in the form of rental of premises, gas for his car from Prince George's County to Rockville and back, batteries for his camera, flash drives, and incremental costs for the purchase of his equipment (like that new laptop he wants, and Photoshop to put on it, not to mention a more expensive camera that does more).  The costs of all of those things have to be factored into the price quoted.  Beyond that, however, price has to take into account a number of intangibles.  For a photographer, it is the ability to compose a picture, manage the exposure and the shutter speed, engage the subject and capture their essence.  Some people can do that and others cannot.  That's why not everyone is a professional photographer.  Valuing those intangibles is tricky; you have to know what value a client places on those factors and what others with similar talents charge.  Beyond that, you have to have a sense of your own worth as a professional.    Someone just starting out doesn't know that yet.

But wait, there's more.  Price yourself too low, and you will always be the photographer without the really good equipment that makes a lot of difference in the quality of photos you can shoot, the computer program to edit your photos and the computer to handle it.  Why?  Because you will always make just enough money to cover your expenses, both in the business and in life, with no money left over to improve.  Plus, your customers won't come to you because you're a great photographer; they'll come to you because you're cheap.  Is that how you want to be known - as the cheap guy? Isn't better to be known as that great photographer who charges a fair price?  Of course it is.  Don't worry, after this discussion, Eugene and I came to an understanding about a price that was fair to both of us, taking into account all of the factors.  I'm thrilled and so is he.

 That discussion led me to think about the Trenches, but you already knew that.  Isn't this just like lawyers in the Trenches?  Of course it is, and Eugene and I actually talked about it.  For lawyers, overhead is a large part of pricing.  It certainly is for me.  I have to pay for my office space, the independent contractors who pick up the slack, the office supplies (especially the paper and the toner, because we here in the Trenches love to kill trees), the electricity and the water.  That costs a lot of money.  In order to stay current, I also have to attend continuing education programs, update my computer systems and programs, and market my practice.  Those are also part of overhead.

What about experience and the intagibles?  In my mind, those are at least as important in the Trenches as they are to Eugene.  A newly minted lawyer has to look up everything.  They are reviewing the rules and statutes constantly.  Trust me, you want them to do that.  All of that takes time that I don't need to spend because I'm very familiar with the rules and statutes.  Certainly, I need to double check here and there, but I don't need to study them the way a new attorney does.  That's part of the reason they charge less; because they know less, it takes them more time to do the things it takes me far less time to do.

Then, there's the intangibles.  A retired judge paid me an extremely high complement a little while back.  He told me he likes mediating my cases because I know the value of a case, what's worth fighting over, and what's not.  He also likes how I'm able to communicate that to my client in a way that they can understand.  The judge doesn't say that to everyone, because not everyone is able to do what I do.  It comes from experience, certainly, but also from a rapport with people, an understanding of their needs, and a sense of what is compelling.  Knowing how to price that quality relative to others in the Trenches is an art.  Sometimes I undersell myself, sometimes I decide to reduce my fee, but I never give it away unless it's for a good cause.  It took a long time to figure that out (and some who know me say there are still occasions in which they don't think I've learned it).

Certainly, I get a calls from clients shopping solely on price.  You all know how I feel about that.  Some lawyers charge very little and make a living on volume.  Others charge a lot.  That's a poor way to choose a lawyer.  Price is not value.  A lawyer is a personal fit.  They are someone who understands where you're coming from and where you want to go.  They understand your risk tolerance.  They listen and work with you on how you want and need to resolve your case.  That may be the cheapest lawyer.  It may not.  My experience is people who hire based on price alone don't appreciate the intangibles.  They are focused only on price.  They don't care that quality work takes time.  They don't care that other clients deserve their attention.  They don't care about any of the intangibles.  They want what they want and they want it now and for next to nothing.  Those aren't the kinds of clients I want, and I'm comfortable turning away business because I know there are clients out there who value the work I do.  Those are the people for whom I want to work, and for them, I'm the lawyer they want to have. The price shoppers can go down the road.  Here in the Trenches.

Divorce Corp - Part Four

It turns out that all four of us here in Maryland who saw Divorce Corp over the weekend were in one room last week.  One had testosterone as his main hormone and was elder enough of a statesman to remember the "tender years" doctrine, when moms were presumptively the better parent.  This individual no longer litigates (except to represent children0, but concentrates on mediation and collaboration.  Another of us is young and practices exclusively in negotiation and litigation.  Yet a third has been a law professor and not practiced law for quite some time.  Then, there's me. I practice family law in all of its forms - mediation, collaboration, negotiation and litigation.  We're a pretty diverse bunch.  Three of us teach collaborative divorce at the University of Maryland law school, and in fact, we together to plan our first class of the semester.   So, what did we think?

The law professor dismissed the movie as poorly done and not worthy of substantive discussion.   That's not surprising, given that she is used to serious and scholarly work, which this movie definitely is not.   What about the rest of us?  You already know that none of us thought the movie was a balanced picture of the family law system.  Our youngest member researched all of the litigants whose stories were shared in the movie (don't you love Imdb?).  As you might expect,  just as all those experts were misquoted in the film, so were the litigants' cases.

Beyond that, we hope that the family law community doesn't ignore this movie.  Yes, it is an inaccurate representation of us and the system.  Divorce Corp offers us here in the Trenches an opportunity to see how the public in general views us.  The scene is not pretty.  The solution is not for us to dismiss this movie as a one off and defend the way things have always been done.  Divorce Corp is a wakeup call to all of us here in the Trenches.  Why do you think the number of self represented parties increases every year?  It's not because they can't afford us - it's because they don't trust us to help them more than we help ourselves.  Sobering thought.  Here in the Trenches.

Divorce Corp - Part Three

Simply because I believe that Divorce Corp was a poor movie doesn't mean that the points raised aren't worthy of discussion.  Quite the contrary.  It is no surprise to anyone who reads this blog that I don't believe that litigation is an appropriate way to resolve family disputes.  One thing Divorce Corp does quite well is demonstrate how the use of litigation to handle divorce became the status quo.  Divorce was not common place in our society, in part because people didn't live long enough to make divorce practicable, and in part because the economic structure of society made it all but impossible for a wife to be able to afford to leave her husband.  As a consequence, law makers and the judiciary had no need for rules to cover every contingency in the dissolution of the legal entity known as a marriage.  First, divorce didn't happen often.  Second, the wife wasn't entitled to anything if she left her husband.  Third, custody of children was always awarded o the mother.  Fourth, no one was going to live long enough to worry about the long ten picture.  Then came women's lib, and women left the home and moved into the workplace in greater numbers than ever before.  People were living longer, and women had the financial means and lifespan to make leaving an unhappy or abusive marriage possible.  The divorce rate climbed.  Society had no means to deal with the complicated financial and societal issues raised by the dissolution of that legal entity.    The only means that society knew to use to untangle the complicated legal, financial and familial threads that bound two people's lives together was the court system.  That the adversarial system was ill suited to resolve disputes between people who needed to have a continuing relationship with each other, whose needs would change throughout life, necessitating a revisit to any "final" resolution, didn't matter.  Society needed a solution. Now.

What we've found out in hindsight is that the solution really doesn't work for most people.  Sure, families get a decision and the dispute ends for now.  Family disputes, however, are not just legal disputes.  They are also emotional and financial ones.  The court system is particularly ill suited to dealing with emotions.  I don't just mean judges.  Watch a jury in a case in which witnesses are emotionally overwrought and what you'll see is plenty of discomfort.  The difficulty is that most cases that end up before a judge, those 2% of all family cases, are usually there because one party or the other is a high conflict personality, or is otherwise suffering such debilitating emotions that they cannot make a decision other than to keep fighting.

Most of us who work here in the Trenches really care what happens to our clients.  Unlike the lawyers who were depicted in Divorce Corp, most of us want to help our clients move on with their lives, reconfigure their families, and move on without unnecessary angst.  What most of us have found is that collaboration and mediation should be the first choice for divorcing families, and not an "alternative" means to resolve the dispute.  When those methods are the default, then, and only then, will it become unnecessary to file suit in court simply so the other spouse will (1) realize their spouse is serious about wanting a divorce, (2) realize that mediation or collaboration make more sense than endless court appearances, discovery requests, and the like, and actually engage in meaningful dialogue to resolve the issues attendant to the end of their marriage.  Wouldn't that be wonderful if it occurred during my lifetime?  Here in the Trenches.

Divorce Corp - Part Two

Sometimes when I don't write for a few days, it is because there is nothing that strikes me that I want to share.  In the case of Divorce Corp, I have so many ideas swirling that I'm having trouble organizing them in my head, much less on paper.  I have no fewer than 4 blog posts begun on the topic. Then, as usually happens, inspiration struck this morning.

One of the premises of Divorce Corp is that divorce would be so much better if we simply got rid of the existing family law structure and adopted one just like Sweden.  Would it be great and preferable for the default method for resolving family disputes to be either mediation or collaborative law?  Absolutely.  That, however, is not what Mr. Sorge is advocating, and in fact, he edited out of his movie practically all references to the use of these methods in family law.  What he wants is to completely dismantle our present family law system and substitute the Swedish one in its place.  Here's what I have to say on the subject, in typical Life in the Trenches style.

As you all know, I am a runner.  I have had some trouble with my right knee during long runs, as it starts to hurt and then decide that bending is an optional action. Ouch!  I have tried taking Ibuprofen, with little result.  I have tried walking when it locks up until I can start running again.  That works, but still, I only do that after it has locked up once.  I found a series of exercises in Runner's World guaranteed to solve my problem.  I did them faithfully, and my knee locked up a mile or two after it used to do so.  Then I added stretching in the form of yoga, strength training for my both my upper and lower body and balance training on the Bosu ball (which I love to hate), plus I changed my stride and learned to notice when my knee was just thinking of hurting.  Oila!  15 miles without pain.  The Trenches learning point here is that any one or combination of things I did made little difference in the condition of my knee.  It was only when I did all of them in conjunction with each other that I experienced complete relief.

If we analogize my knee to the family law system, Mr. Sorge would say it proves his point that we have to radically change everything to fix the divorce process. I look at it differently.  I respectfully disagree.  If my knee is the family law system, then what my story shows is that we cannot view that system in a vacuum.  My knee, like the family law system, is part of an interconnected system of societal assumptions and governmental policies, formats and actions.  Changing the family law system to one like that in Sweden works in Sweden because the assumptions, policies and actions of the society as a whole support it.  The United States is not Sweden, and unless you change all of the United State and its government so that it is like Sweden, from their socialized medicine, subsidized daycare, family leave policies on down the road, implementing their family law system would not work.  There are major societal changes that have to be in place to make that experiment successful.  If we simply did as Mr. Sorge suggests, we would in all likelihood enter the world of unintended consequences.  If you doubt me, look at Obamacare.  No, I don't care to nor will I debate the relative merits of Obamacare.  I think, however, we can all agree that what we have with the rollout of Obamacare is a mess of unintended consequences, from website snafus to cancellation or alteration of pre-existing health insurance benefits.  At this point, the merits of Obamacare are obscured by the unintended consequences of its provisions and rollout.  Then again, if all of those possibilities and results were considered and dealt with, not only would it have taken more time than the President has in office to implement, but it still would not have gotten rid of all of the intended consequences, there would simply be different ones because at the base of the problem is our societal mindset. The consequences that occurred were because you can't change an entire society just by changing one small part.  All of society, and our view of health insurance as a government entitlement for all and not just the destitute and elderly, would have to change in order for Obamacare to overcome the unintended and unforeseen consequences its rollout created.

Closer to home, there is a move afoot to revise the domestic violence laws.  We here in Maryland have had quite a few horrific and highly publicized incidents of lethal domestic violence within the past year or so.  As a result, there is a push to relax the requirements necessary to obtain a domestic violence order.  As we all know, every action has a consequence, and today, one of colleagues here in the Trenches, Hadrian Hatfield, published an editorial in the Washington Post on that very topic.  I commend reading it to you.

Ultimately, unless we are in favor of gutting our entire governmental system and revamping everything we do as a nation from the Executive Branch down to Joe and Mary Citizen, the Swedish system is not going to work here.  Even if it were, you are talking about generations of time to see improvement.  I don't know about you, but I don't think my clients have that kind of time.  What we can do, and must do as attorneys here in the Trenches is urge our clients to view mediation, collaboration and negotiation as the primary and front lines way of resolving their domestic disputes.  We have to education our clients about all methods of resolving disputes, help them determine which method is appropriate for them, and save litigation and its mind set as the alternative dispute resolution mechanism, rather than its default.  Educating the public is part of the bottom up method of effecting real change.  It doesn't happen if we as lawyers don't embrace that change from the top down.  Moving back to our origins as counselors at law rather than the hired gun enables us to serve our clients and meet their needs in a way that feels fair to them and the rest of their family.  Just my $.02.  Here in the Trenches.

Divorce Corp - Part One

Over the weekend, I and one of my Trenches colleagues took a road trip to New Jersey to see Divorce Corp., a movie that promised to be an expose of the 50 billion dollar family law industry.  Its release has caused a firestorm here in the Trenches, and I felt that prior to commenting on it, I should actually view it in its entirety and not judge it on its trailers. In his review, Roger Ebert described this movie as "less a nuanced documentary than a cry of rage."  With that I would agree.

As I have said previously in this blog, the Trenches contain a lot of people who we refer to as high conflict personalities.  This term was coined by Bill Eddy to describe those folks for whom everything is black and white, with no shades of gray.  The difficulty is that when a family dissolves, there are usually plenty of shades of gray and no true black and white.  High conflict people don't understand this, and you are either for them or against them, good or evil.  When these people do not get everything they want, they lash out into an explosion of rage.  Although they may make valid points, these are lost in the cry or rage.  Divorce Corp felt like a bad online review of the family law system by a high conflict individual with enough money to fund a full length documentary.

Wow, that seems a bit harsh.  It's not.  If you read all of the articles that have come out in the wake of the release of this movie, what you will see is that at the beginning of the making of this film, there was a well-respected documentary director.  He obtained interviews with a number of well-respected people in the Trenches.  These people spoke frankly about what was wrong with the family law system, and more importantly, movements and actions taken by people working in the Trenches to change the status quo.  Between the time of the interviews and the editing and release of this film, the producer (Joe Sorge) replaced the director with himself.  The interviews were edited to further Mr. Sorge's obvious political agenda and any reference to mediation or collaborative law, both positive movements in the Trenches, were removed.  The work of people to reform the system, like Mark Baer, was not included.   The editing changed, in many cases completely, what the interviewee stated, all to further Mr. Sorge's purpose.  It is his story, and he makes sure you only hear his side.

The same is true of the stories of the litigants represented in the movie.  In no case were both sides of the case presented.  The only story told was that of the person who was screwed by the system.  As I have said repeatedly in this blog, attorneys only get one side of the story, and that side is always polarized and determined by the emotional state and view of reality of the teller.  There were plenty of hints in the movie that many of these cautionary tales were not as they appeared, that the people interviewed were high conflict personalities.  You had to look for them, but they were there.  As both sides of the cases were not explored, what you are left with is a number of cries of rage inside this one large scream.

You might think all of the above means I hated the movie and completely discounted it as propagandistic garbage.  You would be wrong.  I am saddened that Mr. Sorge determined that he would use this vehicle to further an obvious political agenda (Why can't we be exactly like the Swedes?) rather than begin to fully explore what is wrong and right here in the Trenches.  Had he decided to be more balanced in his approach, I think the film would have more impact and perhaps sparked a move toward real reform of the things that need to be changed.  Instead it feels like a hatchet job on a segment of society that we love to hate - lawyers and judges.  That bias will certainly resonate with a lot of people who have come through the Trenches, but it will help not one whit to encourage that change.

Change in the family law arena has to come from the bottom up and the top down.  It has to be deemed necessary by both the professionals and the parties involved.  Everyone involved has to agree on what those changes will be.  Like it or not, marriage and divorce are both legal concepts that require legal help to create and dissolve.  Because of that fact, lawyers are a necessary part of the equation, so producing a movie that simply antagonizes the professionals involved does not promote real change, only discontent.  What is broken in the Trenches and how that might be fixed is a subject for another day, probably tomorrow - here in the Trenches.