Just a Little TIme Off for the Holidays

To all of my readers out there, you may have noticed a dearth of postings lately.  Christmas cookie season, then my annual post-Christmas cookie flu have keep my head too cloggy for blogging.  I've used all of the available braincells to serve clients in my office.  I feel very guilty for not keeping up with you.   Fear not, however, I am not done with blogging.  Officially, I am taking time off from the Trenches and blogging until the first of the year.  I'll be back in January with more for you.

Have a happy holiday season and stay safe.

First Thing We Do, Let's Kill All The Lawyers

Are you one of those people who sees people running alongside the edge of the road, and think "Jerk, get back up on the sidewalk!"?  You can't understand why people would run in the road.  Well, I'm a runner.  I run on the edge of the road.  Let me tell you why.  First. asphalt is easier on the knees than concrete.  That's not why I don't run on the sidewalk.  Let me tell you why.  When I reach an area without a parking shoulder, I jump over to the sidewalk. Since daylight savings time ended, I have fallen on the sidewalk 3 times.  I have gotten road rash on my shoulder, my chin, my hands and my knees.  I have ripped my running gloves.  I've been lucky I haven't broken something. Why?  Because roads in my area are fairly well maintained, they are smooth and even. Sidewalks are not.  They have cracks every 30 inches.  The sidewalk squares heave and buckle and crack.   I've tripped on the uneven surface.  Three times.  Context.

A judge in one of the courts in which I practice lost their young adult child suddenly and tragically at the end of last week.  This was the Christmas cookie weekend for that courthouse, with the delivery set for today.  I struggled with going ahead with cookie deliveries.  Today, I delivered the cookies.  To some, that might feel a bit callous, celebrating the holidays at a place that has felt such deep tragedy so recently.  What if I were to tell you that this particular judge loves my cookies?  The judge looks forward to cookie deliveries with excitement and has, on occasion, chased me down the hall to thank me for them.  The judge's administrative assistant is taking the cookies I delivered to the judge at home.  Does that change how you view my going ahead with deliveries today?  I bet it does.  Context is everything.

My favorite example of context is the infamous Shakespeare quotation:  "First, let's kill all the lawyers."  It is often cited to show that Shakespeare hated lawyers and thought they were corrupt and unethical.  If you read Henry VI, Part II, Act IV, you will see that those lines were uttered by someone who thought that killing all the lawyers was a way to disturb law and order by removing its protectors, and in that way, could seize power.  Context sure makes a difference.

We know a lot about context here in the Trenches.  A purely innocent act, in the right context, can be sinister.  A woman having dinner with a man is innocent.  That dinner, but at a candlelit restaurant, not so innocent.  Oh wait, they're holding hands.  An affair?  He texts his wife about the children.  A concerned parent.  He texts her 50 times a day - something entirely different.  What if he texts her when the child's school is in lock down and they are anxiously texting updates back and forth?  We're back to normal again.  Context is in everything we do here in the Trenches.  Putting things in the right or wrong context can make or break a case.  Here in the Trenches.

The Good Old Days

My father used to lament the loss of the good old days of personal injury work.  In the good old days, the injured person's attorney and the insurance company's attorney would exchange necessary documents, and then they would pick up the phone or meet in person and discuss the case.  They would talk about the injured person's injuries and medical bills.  They would discuss the permanency of the injuries and the effect of those injuries on the injured person's life.  Then, they would talk numbers.  The numbers they would talk would be remarkably similar.  They were within a reasonable range.  The range was not because the two attorneys colluded to fix the amount the injured person could recover.  Rather, the range came about because both attorneys had tried a goodly number of similar cases and knew what a jury would likely award.  The attorneys would rather not waste everyone's time asking for the sun and the moon and the stars, if there's no prayer they would get it.  They haggled over a figure everyone knew was reasonable under the circumstances.  That was the good old days.  In the not so good new days, the insurance company's attorney would offer a ridiculous pittance and play hardball with it.  Not my dad, but many injured people's attorneys would ask for a ridiculously large amount of money and play hardball with it.  The reasonable range hadn't changed, but the reasonableness of those negotiating had.  What was the result?  Besides hard feelings all around,  there was a lot of wasted time and money to get to the same place.  Game playing took precedence over getting the matter resolved so the injured person could go on with their life.

I just started a case with a colleague I've known for years.  The first thing we did was get on the phone together.  We shared some information about our respective clients, and about their financial situations.  We talked about our clients' needs and goals.  We compared where we thought our clients were in terms of a financial settlement (there are no children).  We found out that we were pretty much on the same page about what it would take to settle the case, and the range of financial options available to us.  We agreed on what difficulties might exist that would impede a full settlement.  We agreed on what documents were really necessary for us to advise our respective clients and agreed to provide them.  Then we hung up.  Even though agreeing on the exact number for settlement may take some time and effort, it will take far less time, money, and effort than if we just came out swinging.  This is not the only attorney with whom I can engage in such a process.  Contrast that with another case I have in which the other attorney says one thing and does another.  This attorney has filed pleading after pleading, saying the same things, none of which are appropriate for relief.  Unfortunately for my client, I have to respond to each and every one of them.  The sad part is that we have one fairly tiny issue left to resolve, and instead of putting the effort into wrapping that up, this attorney continues to file motions.  It's miserable for all involved, and is costing my client a lot of money she really shouldn't have to spend.

The moral of this story is that is usually a good thing for attorneys on opposing sides to know each other, get along and trust each other.  It's not a good old boy kind of thing; it's a case management issue.  Trust and respect take you further in a shorter period of time than distrust.  It also saves you money.  Am I fighting for my client?  You bet I am.  Am I looking out more for what they need than in preserving my relationship with the other attorney?  Yes, but the two things are not mutually exclusive.  We can and do advocate strongly for our client's goals.  That doesn't change with who is the opposing attorney.  What does change is the tenor of the case.  Changing the tenor models the behavior of everyone in the case, which means emotions cool faster, and goals, instead of hurt feelings, take precedence.  Here in the Trenches.

Is It the Destination Or The Journey?

I talk a lot about process and helping clients identify and reach their goals.  You would be forgiven if you thought that I just meant that on one level.  Certainly, I want to help clients decide what financial and parenting goals are important to them.  Those are the macro goals.  What I don't talk about much are process goals, yet they are equally important.  How will the client and their spouse resolve any future disputes?  How will the parents reconcile expenses for the children?  How will they determine how to calculate what each of them gets from the settlement?  How will they decide who to do their taxes?  Who to sell their house?  How will they decide?  It's not as easy as it sounds.

Some people need a detailed process with lots of steps, checks and balances, and details.  Some folks need something a little less formal, just a general sketch of what to do.  Still others need no process at all.  Here in the Trenches, we talk to our clients about how they made decisions in the past, what worked and what didn't work.  We ask them what makes them comfortable.  We ask them about their spouse and how they make decisions.  We explore the level of trust between them.  We discuss it and assess.  You see, the terms of an agreement are only as good as the process used within it.  A durable agreement with an acceptable outcome means all of the terms, both substantive and procedural, are acceptable.  The process is something most clients overlook.  Not us.  Here in the Trenches.

Life Is What You Make It

Daughter's and my trip to Italy was a Groupon.  We flew on the plane with four other couples who had bought the same Groupon.  Technically, we were on the same trip.  Yet, our trips were anything but the same.  One couple decided to use our hotel in Montecatini as their base to explore Italy's major cities:  Rome, Florence, Venice.  Another couple took advantage of Monetcatini's spas, and left Montecatini a day early so they could see more of Milan.  We explored the Tuscan countryside and cities near us.  Yet, it was all the same trip.

Saturday, I ran a half marathon.  I needed a good time in order to secure a better starting position at the Disney Princess Half Marathon (so Daughter and I could enjoy some photo ops with the characters), and I wanted to post a personal record (I did).  As I milled around waiting for the start, I talked to a number of other runners.  One was running their first half marathon, and just wanted to finish.  Another ran it every year just because they love it.  Lots of folks were trying to qualify for the Boston Marathon.     Same basic course, up and back for 6.55 miles on the C & O canal path, yet, each person was running a different race.

Life in the Trenches is much the same.  Everyone goes through the same basic process.  It's their goals that make the difference in the experience and the result.  It starts with a state of mind.  Part our job here in the Trenches is to help our clients explore where they are and where they want to be.  We have to listen to what is important to them, not in terms of things, but what they represent.   Then we help them translate what is important to them into long and short terms goals.  Their goals sometimes determine the process, but goals always determine how they act during the process.  Everyone is different, and so the process, although basically the same for everyone, is individual.  Here in the Trenches.

Head, Shoulders, Knees and Toes

My fabulous yoga instructor also believes that everything is connected.  We start every class by working on our feet.  Why?  Because the health of the feet controls the rest of the body.  I certainly found that out when my knee problem cleared up once my sore toe resolved itself.  My yoga instructor believes that misaligned feet create a domino effect on the rest of the body, just as healthy, well-aligned feet are the building block for a healthy body.  It's like dominoes, one piece affecting the next.  I know, my yoga instructor should meet my dentist.  Anyway, from our feet, we work our way up to the hips, the low back and then the shoulders.  Everything is interrelated.

That's how it is here in the Trenches.  Everything is interrelated.  Certainly, in a purely mechanical sense of things,  you never settle property without also settling support, because the property a party possesses is a factor in determining support.  The amount of time a parent has with their child may affect child support.  Those things are not about which I speak.

The interrelation I'm talking about is far more subtle. I firmly believe that how well and how quickly people recover from divorce has to do with how involved they are in the process itself.  I don't think it matters whether a client wanted the divorce or not.  What matters is how connected they are with the process.  How do they work with their attorney?  Are they involved?  Are they interested in what is going on?  Now, there's a fine line between being interested and involved and being controlling.  Being controlling is not being involved; it is being separate and apart from the process and manipulating it to an end which was predetermined before becoming involved in it.  Not the same, and not healthy.  Interest equals curiosity and investment.  It's knowing what you know and what you don't, and working with a professional or two or three to learn.  Involvement is doing the hard work of focusing on future goals, asking the hard questions, gathering the information and thinking about solutions that work for them and their family.  If this sounds like the collaborative process, that's because it is.  It is also mediation, litigation, and negotiation.  They call the stages something different in each process, but in their somewhat different forms, they are all present.  Why?  Because it works.  Believe it or not, it is the process that helps the healing.  Huh?  The pain of the divorce process is connected to getting past the process?  Of course it is. Why else would all the stages be the same?  Here in the Trenches.  

We're All Connected....

.....in so many ways.  I have fairly severe temporal mandibular joint disorder.  It is so bad that as a teenager, my jaw would pop out of joint and freeze in the open position (OK, no cracks about me and my big mouth!).  Needless to say, it was painful.  My head tied in knots; I lived with daily headaches.   My sinus headaches were more severe than at any other point in my life.  I went to dentist after dentist. A couple of them thought it was all in my head (really?).  One thought daily injections of painkillers in my mouth would solve the problem - that killed a few nerves and created a decades long fear of novacaine needles.  Finally, I found a dentist who understood what was going on.  My teeth didn't mesh properly and the resulting misalignment threw all the muscles in my head off.  He rebuilt my mouth - no mean feat, as my bite is like the proverbial princess and the pea.  I now have a different dentist, who I adore, and thank heaven's he's patient and painstaking, because the princess and the pea is back because crowns don't last forever and have to be replaced.  It will be fine, because he gets the interrelationship between my bite and the muscles and joints in my head.   In fact, he just worked with a dentist who believes he can utilize the alignment of the bite to correct a misalignment in the hips.  Wow.  Way more complicated than simply taking care of the health of the mouth, which is what he was initially trained to do.

Anyway, during one of my many trips to the dentist this past week and a half, my dentist mentioned that he had just attended a training on domestic violence.  Yes, you heard me correctly, my dentist attended a continuing education on domestic violence and how to identify it.  My poor dentist.  Not only does he have to pay attention to the health of the teeth and gums, he also has to study the anatomy of the rest of the body starting with the mouth, and be cognizant of the signs of domestic violence as it relates to dentistry.  It keeps him on his toes for sure, and guarantees he will never be bored in his work.

Here in the Trenches, life is much the same as for my dentist.  I, and most of my colleagues who toil here, are not amused when lawyers say they thought they'd try family law because "how hard can it be?"  Plenty hard.  Family law is not just about obtaining a divorce.  It's not only about divvying up possessions.  In order to practice family law and do it well, we have to know tax law, bankruptcy, and psychology.  We have to understand the latest theories about children and attachment to parents.  We need to be able to identify and work with people who are emotionally overwrought or mentally ill.  We have to understand retirement plans, military regulations, how to value a business or a house.  We need to understand how a mental health professional performs an evaluation, how to assess research in different substantive areas.  We need to know basic accounting, how to trace money, and of course, how to spot domestic violence and assess lethality. All of that changes and we have to keep up with those changes.  That is all in addition to knowing how to do all the other things a lawyer does, like try a case, negotiate and get that pesky divorce.  It's not easy; in fact it is one of the more difficult areas in which to practice because of all the types of things we need to know what to do, as well as the stress of having and managing emotional clients.  Everything affects everything else.  It's all connected.  .Just ask my dentist.  Here in the Trenches.