One Courthouse Down; One to Go

Today was the first Christmas cookie delivery of the season.  150 dozen cookies handed in out in just over an hour at one of the courthouses at which I practice.  Yes, I make them all, with a little help from my elves.  Next weekend, I make another 75 dozen or so for my other courthouse.  It's really a huge job.  Part of it involves my sitting in my kitchen alone, making batch after batch of dough after a long day of work.  At times, it's tedious and it's lonely.  For the last three years, I have come down with a huge case of the flu after cookies are done.  There have been times when I wonder why I do it.  I considered stopping the tradition because it is just so much darn work.  I've come up with quite a few reasons why I shouldn't.  They're quite pertinent to the Trenches, so I thought I'd share them.
1.  I get to watch hours of my favorite Christmas movies.  I love the darn things, and otherwise, I could never justify watch "Christmas Vacation" six times in a year.
2.  I spend time with my friends and their daughters, and my daughter.  What great bonding time for all of us, and a great tradition.  We have fun, doing nothing more serious than counting minutes in the oven.
3.  I love seeing everyone at the courthouses.  I don't try a lot of my cases because I have a talent for settling them.  As a result, I don't see all the people at the courthouse who I've known for 20 years very often.  When I do, I don't get much time to visit with them.  Except at Christmas cookie time.  Then, I see them all and I spend a few minutes with everyone.
4.  I love making everyone so happy.  Christmas cookie time is the one time everyone is happy to see  me.  They all have their favorite cookies, and they love to tell me which one.  I try to remember from year to year.  Word goes through the courthouse when I arrive with all the baskets of cookies, and they expect me and follow me down the halls.
5.  The people I give cookies to have known me for a long time.  They were nice to me when I made mistakes in my younger days.  They deal with not so nice members of my profession and the general public, and yet they remain calm and cool.  They have a lot of balls in the air and make relatively few mistakes.  They are underpaid and overworked, and very few people appreciate all that they do.  One time a year, I like them to know I do.  Not for any reason but to tell them.

All of that is why I decided to change things up a bit.  I made the dough for three of the types of cookies ahead and froze it.  I made another of the cookies over the course of a week after work.  This year, the first round of cookies were finished a day early, and I actually got to bed before midnight.  My throat's a little scratchy, but I'm doing relatively well.  Keep your fingers crossed.  I think I found my work around.

What does all this have to do with the Trenches?  Life is all about choices.  A lot of life is tough, and yes, divorce is one of those things that is hard.  Especially at the holidays, it's really easy to focus on what is missing.  I admit, a lot is probably missing.  In fact, I would hazard a guess that almost everything is different.  That's sad and probably fairly lonely.  I know, it's not easy.  Remember, I've been there.  You can focus on what is different.  You can focus on how your traditions have changed.  You can see only how life isn't what it was.

 I'll let you wallow in that for a while, but I guess at some point, you'll get tired of it.  At least, I hope you do.  That's when you have a choice.  You can continue to rue what you lost.  Or, you can focus, not on the things you used to do, but why you loved them.   The point is to take some time and look deeply into what makes the holidays special to you.  What is it about the lost traditions that you miss?  Why?  Write it down.  Think about how else you can meet that need in you.  You like Christmas trees?  Reinvent the tradition, and get a fake one instead of real, maybe in silver?  You love the carols?  Join a choir.  You love the Hannukah food?  Make donuts instead of latkes. Life is full of changes.  Many of them are difficult and painful; divorce is one of them.  How you deal with those changes is up to you.  Do you stop doing the things you love because they're hard, or do you find ways to keep the joy?  Here in the Trenches.

Why Hire a Professional?

Oh my heavens! It's been a month since I posted.  For both of you who read the blog, I'm sorry I was gone without even a little explanation.  Honestly, I don't have one.  Life just got in the way of blogging.

I worked out with Daughter for the first time in a while.  She's been busy too.  As you know, she has been training me online for well over a year, even though she now lives in town (and for the time being, with me).  Because I'm what Gretchen Rubin calls an Upholder (to find out what you are, take the quiz here), I work out hard without anyone standing over me or reminding me.   I don't need outside accountability to do my workouts.  I've been going on my merry way every month with the workouts Daughter sends me.  She attaches videos to the exercises so I can see how they're done; I study them carefully.  Last weekend, she was with me while I worked out.  For the most part, I did fine, but for three exercises, she had me move a little to the left, point my elbows out to the side more, and lean into the move.  Those little tweaks made a big difference.  The exercises felt different. They were better and more effective.  I really felt the muscle work.  I used to create my own workouts.  Some of them worked fine, but I never knew if I was working all my muscles, or if I was working some to the exclusion of others.  Plus, I only tended to include exercises I really liked.  I could have continued to watch the videos and do OK, but working with a professional made a huge difference in my experience and my result.

For the first time in a few weeks, I was reminded again how life is so much like the Trenches.  Here in the Trenches, there has been a large rise in self represented people.  The internet has made it so much easier to find forms for legal documents and pleadings, so people think that if they just use those resources, they can resolve their marital issues and get a divorce.  I always tell clients that if you just need an uncontested divorce, most people are capable of doing it using the forms.  If all I did was fill out forms, and if all the practice of law involved was forms, most people wouldn't need a lawyer.  Filling out forms is not why people hire lawyers.  They hire us for our advice.  They hire us because we're professionals and we know what issues to look for. They realize that we won't miss an important issue in their settlement.  We know all the little things that can make a divorce settlement meet all of a client's needs.  We can be calm, dispassionate and forward looking.  We know what will work for the future, and what will only patch things for the short haul.  We know how to make the process run smoother.  We know what process will yield the best result for a client.  We can help a client soup to nuts, or just when they need a little tweak or advice.  Sure, they could do it themselves, but working with a professional can make a huge difference in the experience and result, and make the difference between hitting all the bases and forgetting to touch third base.  Here in the Trenches.

Christmas is Around the Corner. Are You Ready?

credit Petr Kratochvil

This weekend begins Christmas cookie season.  I know, it seems a bit early this year.  It is.  As I posted last year, or rather right around this past new year, cookies have become out of control.  I think everyone would agree that 110-130 DOZEN cookies, mixed, baked and delivered over a two week period is overwhelming, especially when you're working full time.  For the past 3-4 years, I have gotten the flu to end all flus right afterward, with the result that I am extremely ill over the holidays that I spend with my family.  I toyed with giving up cookies.  The problem is that I enjoy baking them and I love delivering them.  I figured there had to be a way to soldier on.  Hence, beginning cookies this weekend.  I'm making the dough before Thanksgiving and freezing it.  Then, all I and my little elves have to do is bake them prior to delivery.  That, and a ton of vitamin C and zinc, should do the trick.  Why didn't I think of this earlier?

The holiday season is also tough for our clients here in the Trenches.  Right about now, every divorce blog is full of hints for surviving the holidays when you're divorced.  Everything changes with divorce, and the rituals of the season change right along with them.  Most of my clients try very hard so that the holiday rituals don't change much for their children.  What about them, though?  Most people spend years doing the holidays a certain way.  Maybe they spent every Thanksgiving with one extended family and Christmas with the other.  Now, their Thanksgiving holiday is gone, the kids are with the other parent's extended family, and they are at sixes and sevens, as my Grandma used to say.  Remember, I've been there.  Thanksgiving was always my spouse's family's holiday.  I spent the first few Thanksgivings sitting in my basement, watching movies,  and eating whatever.  It was not fun; in fact, it was downright depressing.  I never said as much to my children, but they figured it out, and worrying about how mommy was spending Thanksgiving interfered with their holiday.  Remember, that was the holiday I was trying to preserve for them, and here worrying about me was going to take away from those memories.

So, one year, I sat down and thought about Thanksgiving. I realized that I could spend it with my family.  Sure, Thanksgiving is not my family's big holiday (that's what happens when your grandfather is born on Christmas Day), but we could be together anyway.  I know, Christmas is only a month after that, but so what?  I not only love, but like my family, so why not be with them?  That was many moons ago.  The Thanksgiving tradition with my family has changed a bit as our needs changed, but it's my new tradition.  It sure beats dreading the holiday.  I look forward to my visit with Mom, and our Movie Day (I hate turkey).  Even more importantly, my children know I'm doing something fun, so they can enjoy themselves fully.

What about you?  I'm writing this post now so you have time to make plans.  What?  You say everyone else already has plans?  That's really not so.  We like to think everyone has plans.  We like to think that we would be intruding.  We like to think it would be too much bother, so we never ask.  We never put ourselves out there to say that we don't have plans for the holidays, and that we're worried it will be difficult.  We don't want to say that we're far away from family and don't have the time or money to go home.  We don't want to say that this is our first Thanksgiving without the children, and we don't know how we'll handle it.  We think it makes us look pathetic.  We think it looks like we're inviting ourselves.  We don't want to ask other people to help us brainstorm what we could do instead of sit around and watch HGTV all day.  I give you permission to talk to people and to ask them to help you.  It's OK to be vulnerable.  It's OK to talk about your worries.  You will probably be amazed at what people will say.  How about you have a happy holiday?  Here in the Trenches.

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.

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.

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.  

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.

The Secret to Co-Parenting with an Unreasonable Ex

Disengage.  Here in the Trenches.

No, that's not the entire post, although I wish I could just say "disengage," and everyone would know what I mean and just do it.  My advice does, however, need some explanation.

Every couple has a dance they do together.  My colleagues, Kare Scharff and Lisa Herrick, in their book, Navigating Emotional Currents in Collaborative Divorce, describe it as a lock and key.   I'm introverted; you're extroverted.  I respond from my gut; you think things through intellectually.  You get the picture.  When the marriage is working, so does the lock and key.  My strength matches your need. My personality balances yours.  When the marriage is not working, our pattern of behavior no longer works.  What we saw as working together now doesn't work at all.  What you thought was my strength, you now see as something else.  My personality doesn't balance yours; it smothers it.  If we were dancing, it would no longer be a graceful waltz; you would be stomping on my toes.  In common vernacular, what used to make us fit together now just lets you press my buttons.

The difficulty is that our lock and key or our dance has trained us to have fixed expectations of each other and our roles.  That's a problem moving forward.  We act as an incomplete half, not able to be a complete person or parent.  We're off balance because we always acted as a team.  Or maybe we clash because you push my buttons - every time.  After all, you know them all.

Here's the deal.  We're not a team anymore, not in the way we were.  Now, we're walking parallel paths.  Sometimes, they intersect.  Sometimes, we walk together.  Sometimes, they're just parallel.  You can't control what happens on my path anymore because we're not together.   The only path you can control is yours.

You can't make the other parent feed the children at 6pm or go to bed at 8pm.  You can't make the other parent teach the children right from wrong.  You can't make the other parent help the children with their homework, instill a work ethic in them, or take them to church.  The only parent you can make do all those things is.....you.  You have to learn to march to the beat of your own drummer.  You have to decide what is the right thing to do, the right values to instill in your children and the behavior you want to encourage and discourage.

Then, you have to do it, no matter what the other parent does.  Is it easy?  No. but then most things that are worthwhile are not.  Does it take time and practice?  Yes.  Will the other parent like it?  No.  They will try to get you to reengage with them.  They will push your buttons.  Maybe it will look like your children are not learning what you have to teach them.  Maybe it will look that way for a long time.  Remember, parenting is not a sprint.  It is an ultra marathon.  Only those with great endurance and perseverance finish an ultra marathon, much less win it.  Can you wait until your children are adults to see whether what you did stuck?  If not, go ahead an reengage.  If so, disengage and parent the way you know is right.

Disengage - the short answer with a long explanation.  Here in the Trenches.

It's Not Just a Job

By Erik Charlton from Menlo Park, USA (Ice climbing on Mt. Rainier) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Sorry folks, that post I was going to write two weeks ago is still in draft form.  Serious posts like that one take a lot of time and mental effort to compose, and well, at the end of the work day, I just haven't had the strength.  The Trenches is like that sometimes.  Most people, including many of our clients,  think that being a family law attorney is just a job.  Many lawyers think family law attorneys don't practice "real" law, because we deal so much with emotions and family dynamics.  Those of us in the Trenches know differently.

This week, another attorney and I were on the phone, going back and forth until I had to get my beauty sleep at 10:00pm, and then were back on email and the phone starting at 6:00am.  In between, we had lengthy conversations with our clients.  All of this so we could finalize an agreement that would allow my client to buy the house he wanted on the very next day.  Another client, one of my pro bono by choice ones, came by to pick up a packet.  We all started talking about what was happening in her life, and how hard it was to find a job.  We brainstormed with her and gave her 3 solid leads of jobs we knew about.  I helped another client get unstuck and settle her case so she could finally move forward.  Yet another client  called us multiple times every day because her anxiety causes her to think, rethink, and rethink again every aspect of her case and life.  Yet another refused to answer our calls, so we called them multiple times to find out if they were OK.  I had two meetings with lawyers in two different cases to see if we could narrow the issues and brainstorm a way to meet all of our clients' needs.  Please throw in a few court hearings as well.  By the end of the week, we were all wrung out and coming down with colds.

Here in the Trenches, we spend a lot of time worrying about our clients.  We expend a lot of energy making sure they're OK now and in the future. We help them with their legal problems.  We stay present with them in their pain.  We help them find ways to move forward, whether it's by legal process, finding a job, getting affordable daycare, choosing a school, picking a therapist..... We blow off having lunch and dinner with friends so we can handle a client crisis (some of which the client could have avoided had they only listened to us).    We spend the night before trial on the phone with the other attorney, trying to settle the case so our clients won't have to go to trial.  We think about our clients on holidays and hope the exchange of the children went as expected; we dislike holidays because our clients usually have crises then.  Our families and friends have to understand that's how we are and what we do.

How do we cope?  Some of us don't; more and more people are leaving family law to do something else because it is just too hard.  It is hard emotionally.  It is hard intellectually, because you have to know something about everything.  Some of us (and people you would never expect) cope by watching every cute animal video posted to Facebook.  I'm a sucker for those "feel good" stories with a happy ending about how wonderful people are.  Exercise is a great release:  many of us run, bike, swim and do yoga.  Some of us are fanatical about our gardens.  All of our extra-curricular pursuits, it seems, are about seeing the positive in life and helping things grow and improve.  In short, they are about the positive in life.  Without them, none of us could do the work we do in the Trenches.  Contrary to a belief held by many, this is a tough job and we do care - a lot, maybe too much.  Here in the Trenches.

Goodbye My Friend

I had intended to write a very different post - yesterday.  Then I opened my Facebook and the world fell out beneath me.  25 years ago, I moved to Maryland.  I knew no one here.  One of the first things I did was join the Olney Newcomers Club, and there I met my first friend in Maryland.  She had a son the same age as mine, and so my son made his first friend in Maryland.  She had an older son and a young daughter.  When I had my daughter, her daughter and mine, even though they were 4 years apart, became fast friends.  We were in and out of each other's houses for the next 10 years, as were our children.  Yesterday, my friend's lovely daughter ended her own life.  She had suffered from depression and mental illness for years, and yesterday she lost her battle.  I keep seeing that beautiful young girl who was so full of life.  She had a beautiful smile and eyes so full of life, even when I saw her just a few weeks ago.  How could she be gone?  How much pain must my friend be in?

My friend's daughter was very active in the local chapter of NAMI.  She wanted to raise awareness that mental illness is a real disease, just as real as cancer or diabetes, and every bit as serious.  The only trouble with it is that you can't see it.  It's a disease that can be easy to cover up.  Just like cancer patients can wear a wig to cover up the effects of chemotherapy, so can the severely depressed put on a smile and pretend to be happy.  It doesn't show up with jaundiced skin or a limp.  Most of us don't dig too deep when there's no tears, no sobs and no frowns, and no "crazy" talk.  My grandpa used to say that looks can be deceiving, and nowhere can it be truer than with mental illness.

I know whereof I speak.  Many, many, many moons ago, I had a bout of severe depression.  I have never felt such pain before or since.  Getting out of bed was nearly impossible; the energy I needed just to get up was more than I could muster.  Oh, did I mention I've had mono, and that it was easier to get up and about then, than when I was depressed?  Every thought and every breath was painful.  I thought the pain would never go away.  My depression wasn't chronic.  Others aren't so lucky.  Their pain continues every day, with little relief.  Every day is a battle.  My friend's daughter lost hers.

Here in the Trenches, we see a lot of things that appear one way but are another.  A marriage that looked happy was a sham  The perfect couple was miserable and dysfunctional.  The spouse who seemed to have it all together was a mess; and the one who seemed like a mess maintained the structure.  Our clients battle mental illness.  Our clients are emotional wrecks.  You'd never know it to look at them.  You have to dig deep to understand them and to help them move forward.  Most of the time we're successful; sometimes we're not.  Just like some people win their battle with depression and mental illness and some don't.  Here in the Tenches.

R.I.P. Caitlyn Shuy.  You will be missed more than you know.

I Think I'll Take the Eight of Spades....

If you read this blog regularly, you know I have been struggling with some neck and shoulder issues over the last few months.  In typical "me" fashion, I ignored them and hoped they would go away, and then went to a wonderful chiropractor and now a medical doctor to resolve it.  I am a horrible patient because I am impatient.  I think everything should resolve immediately and not take at least as much time to get better as it did to get bad.  I am reluctant to obtain professional help for my issues.  In that way, I am just like most of my clients.  Their marriages took forever to deteriorate, but once they decide to do something about it, they want it done yesterday.  We all know that doesn't happen, and they have to be patient.

There is one area in which I am not like many of my clients.  When I hire a medical professional and put my trust in him or her, I do what they say, exactly as they tell me to do it.  I don't "cheat" on my treatment.  I don't take almost but not all of my medication.  i don't go to some but not all of my rehab.  I certainly don't that them for their advice and do the absolute opposite.  Most of my clients are like me. Lately, however, many of them are not.  They seek my advice and then don't follow it.  They hear what I tell them to do and then don't do it.  It's not that they don't want me as their attorney - most of theses types of folks acknowledge that they heard my advice.  They simply decided that it wasn't something they wanted to do.  That's like my not taking all my medication and wondering why the infection hasn't gone away.  When it turns out badly for them, they can't figure out why.  They don't understand why their case is now immeasurably more difficult for them.  All actions have consequences, folks.  That's how it rolls.  Here in the Trenches.

12 Steps to Help You Resolve Your Divorce

The easiest way to help your lawyer settle your case is.......to think.  I know, it's not something you really feel up to right now, but trust me, you should try.  It will help you obtain a settlement with which you can live, and save on legal fees.  This is what I want you to do.

Sit in a quiet place and ask yourself a few questions:

1.  Whatever else happens, the most important thing for me to have at the end of this case is.....
2.  The second most important thing for me to have at the end of this case is.....
3.  The third most important thing for me to have at the end of this case is.....
4.  This thing is important but is not something I have to have. I am willing to negotiate this issue....
5.  These things are things we should keep in mind in the big picture, but  they are not that important to me.....
6.  These things are not at all important to me....

Once you have answered these questions (and please, write down the answers), take a break.  Go get yourself something to eat or drink.  Go exercise.  Do something.  Now, sit back down in your quiet place and answer the same questions for your spouse.  I don't want you to answer them in relation to your answers, which is why I told you to take a break.  I want you to put yourself in your spouse's shoes and answer the questions as they would.  After all, whether you think so at this point or not, you know them pretty well.  You certainly know them better than your lawyer.

You may be surprised to realize that the things that are important to you aren't important to your spouse.  You may be stunned to comprehend that your "throw away" things are what your spouse really values. It's important to know that different parts of the same item may be valuable to each of you.  Will this help you and your lawyer settle your case?  You betcha.  Here in the Trenches.

(A version of this exercise may be found in Client Letters for the Family Lawyer: Saving Time, Managing Relationships, and Practicing Preventive Law by Mark Sullivan (ABA, 2013))

A Trusted Advisor

This is the post from last week that I waited to post:

Here in the Trenches, our best cocktail party stories are not our usual clients.  Most of my clients and their spouses are decent, hardworking people in a bad place who need help finding their way to the other side.  There are notable exceptions.  I have spent the better part of this week and all of last weekend dealing with one of those exceptions and getting the minor child to camp.  With some people, it's always something.  You can't give them one thing without their deciding they want another.  You kind of feel like the boy with his finger in the dike, except more and more holes appear.  I spent a ton of my client's money that really should never have needed to be spent, except that the other side was uncooperative.  It's frustrating and exhausting.

Being a glass half-full kind of girl, I looked for a silver lining. Sometimes, I don't find one.  This time, I found a platinum one.  Not to provide too many details, but as part of my work this week on this case, I had frequent and lengthy communications with an attorney representing the camp.  To take us back a bit, we attorneys get a bad name.  People call us sharks.  They say we are worse than used car salesmen.  They say we don't care.  You all have been reading this blog long enough to know that I'm not one of them.  Neither is the attorney for the camp.  First, he impressed me by how thoroughly he reviewed the situation and came up with a protocol to not only protect his client but also to create a safe place for the child in question.  Next, when lots and lots of glitches presented themselves, he gave up his weekend and his evenings to deal with them.  He took it as a personal mission to make sure this child got to his client's camp.  He spoke to both parents and the child.  He attempted to find middle ground.  He acted as a mediator in the midst of the malestrom of chaos that enveloped this child's appearance at his client's camp.  Did he have to do any of it?  No.  Could he have just said it wasn't his job and enjoyed his weekend?  Certainly.  He didn't.  Why not?  One, he's a good man (obviously).  Two, he cares about his client and believes in its mission. Three, he can't stand to see a child suffer.  Four, he's compassionate and caring.  In other words, he's a great human being...and a great lawyer.  People like him make me proud of my profession.  Here in the Trenches.

5 Rules for Communicating with Your Ex

I wrote a post for last week, but decided that it should wait until a later time, then the week got away from me.  To make up for it, I post rules for communicating with your ex.  No part of revamping your relationship is more important than communication.  Maybe you don't need to communicate after your divorce, or maybe you do.  Either way, it's important to know how, when and if to do it.

Let's assume you received an email or text from your ex.  What should you do?

1.  First, think about whether it needs an answer.  Just because someone asks a question doesn't mean they deserve an answer.  What do I mean?  You need to determine whether the questioner wants an answer to the question or simply to get you to engage.  That's right, sometimes, the purpose of a question is not to get an answer but simply to keep you engaged, or to get a rise out of you, or to make you upset.
     How do you figure that out?  First, is it a real question?  "How stupid can you be," although phrased as a question, is not.  "What time are you picking up the kids," is a real question.Those are simple.  Much harder is the question bound up in loaded rhetoric.  It goes something like this:  "You never respected my work. I was always playing second fiddle to you.  Now I need you to watch the kids while I go to work, but I'm sure you won't."  Is there a question there?  Yes.  Does it need to be answered?  Yes, again.

2.  Second, once you determine there's a real question, you need to figure out what it is.   In our last example the question is whether you will watch the kids.  The question is not whether you supported your spouse in their job.  It is not whether you thought your job was more important.  The question in this example is simple.  It's just hidden in a lot of rhetoric.  Sometimes, it's harder to find the question, especially when the rhetoric pushes your buttons.

3.  Third, take a deep breath.  Realize that all the superfluous words are about the speaker and not the listener.  Sure, there may be truth in those words, but unless they are directly related to the question at hand in a way that defines the question, they are not relevant to answering the question.  Focus on answering the question and ignore the rest.  I know, it's easy to say and hard to do.  Do it anyway.  Unless it is a life or death emergency, you have time to calm down and focus on only the question and its answer.

4.  Fourth, answer only the question.  Do not engage in any discussion of anything that does not directly and succinctly answer the question.  Your response should be no longer than 2-3 sentences, and I mean short sentences.  If you are writing a paragraph, or two or three, or even worse, pages and pages of text, you are no longer answering the question.  You are starting an argument.  Don't do it.  The answer to our long question in #1 is either yes or no.  IF you have to say more, ask when and what time.  That's it.  No more.

5.  Fifth, don't send your answer right away.  Save it in your draft folder (that's what it's for).  Go get something to drink, a snack.  Watch a TV show.  Workout.  Then, reread it.  Maybe run it by a friend whose judgment you trust, someone who will not fan your flames.  Once they say it's neutral, answers the question and is not too long, you can send it.

Got it?  Good.  I thank you.  Here in the Trenches.

Sorry, I Didn't Get That

I am in pain.  In early May, I went to bed and woke up with a pain in my shoulder. I thought it would go away in a day or so; cricks in the neck and shoulders usually do.  It didn't.  Then, I started to get a little tingling down my fingers.  I thought it was stress.  The stress passed; the pain didn't.  I had a massage; no help.  Daughter felt a really tight little knot; she tried a little myofascial release.  OMG. For a bit, it felt better.  The knot loosened.  Then, the pain got worse.  The knot became a big knot.  The tingling multiplied.  I'm seeing the chiropractor on Thursday.  In the meantime, my discomfort grows as the day goes on.  I can't sit for long periods of time because of the discomfort.  I really have to work to concentrate.  I can do it - it's just hard.

Here in the Trenches, our clients are in pain.  Usually, it's not physical pain, but let's face it, pain is pain.  In some ways, emotional pain is worse.  If I move a certain way or really concentrate on what I'm doing, I can sometimes not feel the pain.  People who are suffering from emotional pain have trouble concentrating at all.   The pain almost never goes away.  Crazy thoughts intrude at the most inopportune moments.  They're so raw that they don't have the strength to push the thoughts aside.  The pain is exhausting.  Yet, we ask them to keep their pain in check, marshall their strength, think clearly and make the decisions that will determine the course of their lives into the future.  The problem with this is not that we ask them to do this.  The difficulty is that we expect that they can and should be able to think clearly enough to make rational decisions.  The worst part of it is that some of us get impatient when they can't.  You know, I expect that the work with the chiropractor is going to take time.  I'm not going to feel perfect right away and be able to run out and lift my body weight.  Why would I expect anything different from my clients?  They need time.  They need our patience.  They need us to explain the same thing 20 times because it's just not sinking in.  That's part of what we do.  It is part of our value to our clients.  So, I try to remember my shoulder and keep my patience.  The clients need that from us.  Here in the Trenches.

Five Ways Working With Your Personal Trainer Will Help Your Divorce

As you all know, Daughter is a personal trainer.  Daughter also just moved back to Maryland, so instead of training me online, she trains me in person.  I am not your typical online training customer, in that I do all the exercises she tells me to do, just as if she were in the room with me.  It is not the same as having her with me, but it gets the job done.  Anyway, on Saturday, she was putting me through my paces.  It was rough.  She was cheering me on, telling me I could do it.  I was telling her I hated her, and wondered why I let her grow to adulthood.  She praised my finishing the workout.  I told her to shut up.  She told me it was for my own good.  It, of course, is.  I have dropped time off my running.  I was told I looked hot at my son's wedding. All thanks to Daughter.  So, thank you, Daughter,  You are the best, even if I don't tell you while you're torturing me.

Working with Daughter got me thinking about the Trenches.  The folks who walk through my door know they need to be there.  They really don't want to do what they have to do, but they need the result.  I tell them what they need to do to move forward.  It's not easy.  They get frustrated.  They wonder why they are paying good money so I can make them do the things they don't want, so I can teach them a new way of relating that they don't want to do.  They trust me. They trust that I'm helping them do the right thing for them.  Then, one day it all falls together.  Everything I've been saying, everything I've made them do suddenly makes sense.  It all works.  They feel better.  They get what they need and move on.  They take back all the terrible things they were thinking about me.

Aside from the similarities, in what ways will working with your personal trainer help your divorce?

1.   Working out releases stress.  Believe me, you have more than enough stress when you're in the Trenches.
2.   In order to do #1, you need a personal trainer.  When you're under stress, the last thing you want to do is work out.  What you really want to do is stay in bed and pull the covers over your head.  Having a trainer makes you go to the gym.  Accountability matters.
3.  Your trainer will help you feel successful at a time when you don't feel like you're doing much right.  Doesn't everyone need a cheerleader?
4.  Your trainer will make sure you do things right.  Poor form and too much weight spell injury.  Injury will keep you out of the gym and make you feel unsuccessful.  Good form and appropriate weight will keep you on the slow and steady path to being and staying in good shape.
5.  You will feel better and look great.  Isn't living well the best revenge?

Here in the Trenches.

Greece Will Break Your Heart

Unless you've been living under a rock lately, you know that Greece has defaulted on their loans to the World Bank, their people voted to decline the EU's bailout offer because the EU required greater austerity on their part, the Greek banks are still shuttered, and tomorrow, the EU is voting on whether to expel Greece.  Yet, Greece's people and government are declaring victory.  I think the EU was wrong to think that greater austerity was going to be the answer for Greece's woes.  Hear me out.  As a result of the huge recession in which Greece finds itself, the country has already imposed austerity on its people. Austerity isn't working.  The EU, however, figures that because more austerity would work for most of its members, it will work for Greece.  Unfortunately, fewer people actually pay their taxes in Greece than in most other nations and on top of that, corruption is rampant.  Their poverty rate is one of the highest in Europe.  Extravagance is not their problem.  So, how will more austerity help? Yet,  the World Bank and the EU persist.

No, this is not a political blog, and I am in no way expressing an opinion as to what should happen in Greece.  What's going on with Greece is, however, is just like what happens in the Trenches.  The  EU and the World Bank figure that if they do the same thing they always did, something different will happen in Greece. What about Greece?  They're declaring victory while their economy is still in the toilet and they have no plan to change what they did that got them into this mess.  It's kind of like divorcing someone, then marrying the exact same kind of person.  Or maybe it's like engaging in behavior that ends your marriage, then after your next marriage, engaging in the same behavior.  It's guaranteed to bring you back to my office, that's for sure, but it won't solve what brought you there.

What about the lawyers here in the Trenches?  Most are terrific, but many are incredibly like the EU and the World Bank.  To them. a case is a case is a case.  There's no difference between one and another.  All clients are the same.  Therefore, there's only one way to handle a case - their way. What the client wants and the case needs doesn't matter.  It's too much effort to actually dig deep and help the client find the process that works for them.  Some of their clients are happy, but most are at least vaguely dissatisfied.   I have a lot of cases in my office.  Some of them are litigated.  Some are mediated.  For some, the clients work it out and get advice as they need it.  Still others are collaborated.  All of the processes are chosen to fit the needs of the client and the case.  One size does not fit all, not in Greece, and not here in the Trenches.

First Things FIrst

Lawyers are 3.6 times more likely than the general public to suffer from depression.  Therapists may not be more depressed than the general public, but they do a really poor job of recognizing their own mental health issues.  When you add to this mix dealing with family law problems, the professionals really struggle.  After all, those of us in the Trenches deal with people who are emotional, stressed and angry.  It's our jobs to help them deal with their emotions, assess their options and make decisions.  As a result, we bear the brunt of their not so pleasant feelings.  That's on top of dealing with the everyday stresses of our jobs.  All of the above is why I started a divorce professionals support group.  Everyone thought it was a great idea.  For the first few months, everyone made sure to schedule the time.  Then, this month, it was just one other person and me.  Everyone else had a commitment for a client that precluded their attendance.  Really?  This lunch has been on the calendar for a month.  I made sure nothing conflicted with it; so did the other person.  Everyone else allowed their clients to intrude.  Maybe that's why we suffer from depression - we lack boundaries and don't make ourselves a priority.  We care for our clients and ignore our own health.  Here in the Trenches.

Happy Father's Day?

  ❤

I spent a lovely and whirlwind 24 hours in the Big Apple with Daughter.  She left the Big Apple to go to Atlantic City and I headed back to Baltimore.  On my way back, I sat next to a lovely woman who was going home to DC after spending the day in the City with her grown daughter.  We spent most of the ride talking about her other daughter, the one who isn't really speaking to her.  Today is Father's Day, the second Father's Day without my Daddy.  One of my virtual friends said online that being on social media on Father's Day is really hard because she has such a difficult relationship with her own father.  I can't help but think these three things happened within the same weekend for a reason.  I agree with my friend that family relationships are really complicated and sometimes difficult to navigate.  After all, unlike friends, we don't choose our families.  They're ours, no matter what.  Then, you layer on top that we share their DNA, so they are part of us.  As parents, we raise them and teach them; as children, they are raised and taught.  What results is a complicated mess.

With Daughter, it took me a long time to figure out that sometimes when she called and complained, all she wanted to do was complain.  She didn't want me to kiss it and make it better.  She didn't want me to help her brainstorm options.  She didn't want me to solve her problem.  I might never have figured it out, except that right before one of those phone calling occasions, I was attending a workshop by Bill Eddy.  He suggested.....asking what the person wanted us to do, listen or help solve the problem.  What a revolutionary idea!  After that, I asked her.  Our relationship lost a difficult piece, as her needs were met and I knew what was wanted.  No more guesswork.  No, it's not always perfect, but we've learned to navigate as adults.

My seat mate on the bus?  She was a very successful woman.  So were her daughters.  She had a difficult life when they were young.  She worried about the impact made by those times.  She had hopes and dreams and worries for her girls.  She wanted them to have an easier time than she.  She wanted them to be happy.  She wanted them to feel successful.  I could hear a lot of guilt and shame for the choices she made, the things she said she wished she could take back, and the love she couldn't express without sounding like she was nagging or judging.  She was in such pain because all she wanted was a good relationship with her girls.  She was at a loss as to how to make it happen now that they were adults and responsible for their own choices, and her role was simply to love them.  It's hard because she knew they were making mistakes and she wanted to tell them, to teach them, to protect them from harm.  That's what moms do.  That's not what they wanted.  I'm sure if you asked her daughters, they would also express frustration for the caliber of their relationship, but from the other perspective.  I hope they find their way.

Holidays like Father's Day and Mother's Day bring all those relationship issues to the surface.  When people have difficult relationships with their parents, every Facebook post about a great parent simply grates.  We all see history through our own perspective, and no two people see anything the same.  We all forget that children grow and become adults, and parents age and become our children.  We parent as we were parented, or maybe we parent exactly the opposite because of the way we were parented.  Maybe we made choices to live on one income and have a stay at home parent, and maybe we chose for both parents to work.  Maybe our children turned out just like us, and maybe just the opposite.  Maybe our divorce scarred our children for life, or maybe it just scarred us.  Relationships constantly evolve and until death parts us, there are always opportunities for a different kind of relationship.  Sometimes, that different kind of relationship is to have no relationship at all.

The first step to navigating any relationship is to look within, to decide what you want for the future and what role you played in the past.  Deal with the shame and the guilt, and the love and the understanding.  Decide what it is you want and what you need to do to move in that direction.  Real change is possible if you keep the goal in mind.  Keep it in the forefront as you rebuild your family after divorce or death or simply maturity.  Here in the Trenches.

Why Do We Care If You Have Minor Children? Should We?

Effective October 1, 2015, Maryland will finally have a no fault divorce.  Sort of.  After October 1, 2015, if a married couple without children under the age of 18 desire to divorce AND they have a signed agreement which settles all of the issues between them, financial and otherwise, they may divorce without physically separating.  Note, this law does not apply to people with minor children.  Wait, what?  Why wouldn't it, shouldn't it apply to people with minor children?  Well, stability for the children is an answer.  Frankly, it's not a very smart answer, but it's an answer.  I suppose the legislature, in its infinite wisdom thinks that if we still make people with minor children have a year's separation before they get a divorce, even if they already have a full separation agreement, maybe they'll stay together for the children.  Or, maybe if they have to stay married for another year, that provides the children time to get used to the divorce?  Maybe, if there's a year's separation, it gives the parents time to redo their custody agreement if it doesn't work before it is reduced to a judgment.  Well, that never happens.  Do you get the impression that I'm not a fan of the distinction our legislature has made between people with minor children and those without?  You'd be right.  Here's why.

People with minor children have to interact with each other on a regular, if not constant basis.  They see each other at school, on the sidelines at sporting events and at concerts.  They have to confer about medical treatment, religious rites of passage and education.  Even when the divorce is amicable, it's still hard to be in such close contact so often.  Now, let's add a new girlfriend or boyfriend to the mix, because lots of people start dating during that one year of separation.  It's a long time to put your life on hold.  Think how the other parent feels:  they're not divorced, but not really married, yet here's their spouse will another person.  Think about how the children feel:  while their parents are still married, there's hope that they'll get back together, but here's their parent with someone else.  How confusing is that?  Maybe the parents are dating someone else, but they don't want to reveal it in public because they're still married for the next year.  They hide it; they are furtive and nervous.  How do you think everyone feels with that secret hanging about?

What about changing the custody arrangement?  Well, the people who will tinker with it in the best interests of the children, will do so even with a judgment already entered.  Others simply won't, even if the agreement doesn't work, with or without a court order.  The fact that there is an agreement rather than a court order, means we're dealing with people who have the capacity to make reasoned agreements and compromises.  Doesn't that fact alone bode well for those people's custody agreements being living works in progress?  It does as much as anyone else's agreement.  What difference would another year of waiting make?  Here in the Trenches.

Five Things You Should Do Before You Decide to Divorce

1.   Change your password, on your phone, voicemail, email, Facebook, bank and credit accounts.  While we're at it, check your Facebook.  Is there anything on there that might make you look less than responsible?  Do the same for Twitter, Tumblr, Linkedin, Pinterest, and Instagram.  Clean up your online and public image.  I don't need to tell you not to publish pictures of you drunk, high or in compromising positions - right.

2.   Know what debts you have, and in whose name they are.  If they are in your name, they're yours.  If they're in joint names, they're both of yours. The credit companies don't care about any agreement you may make with your spouse; they care only about whose signature is on their contract. Oh wait, perhaps you should think about whether you could afford to service the debt if your spouse weren't around to help with the payments or your other expenses.  Again, don't incur debt you can't pay.  If you do, think about how to pay it down before you leave.

3.  Know what you own.  Not just cars and your house, but retirement accounts, stocks, mutual funds, and bank accounts.  Do your research.  Figure out the extent of what you own.  Find the statements.  Even if the only statements you can find are old, it's a starting point for investigation.  Educate yourself.

4.  Manage your credit.  No, it's not the same as #1.  Do you have credit cards?  In whose name are they? Are you a co-applicant or simply an authorized user?  How much is your credit limit?  How much space is there on the cards?  Think about whether your spouse might take a cash advance or charge to the credit limit.  Might you need to do the same?  Remember, divorce is expensive, and not because of attorney fees.  Setting up and maintaining a new household is costly.  While we're at it, do you have a credit card in your own name?  A bank account?  Get them.

5.  Get a good therapist - they're better than friends, and you will need the help of a professional to deal with all the feelings and changes in your life.  Go see a lawyer - not necessarily to hire one, but to find one with whom you are comfortable and to become educated about your options.

That's it.  Here in the Trenches.

Process Determines Outcome

I thought about leaving this post at that, but I thought you might need more.  This week, I had a number of new clients.  With each client, I said that process determines outcome.  I explained it to them as I explain it to you.  When you come into the Trenches for a divorce or a custody determination, those cases always end with a divorce or a custody decision.  The basic steps you go through to reach that conclusion are always the same:  identify what you want, ask the questions that will give you the information that will help you get what you want, gather that information, develop solutions to reach your goal and evaluate those solutions to get to the end.  Same steps, no matter the process.  The difference here in the Trenches is how those steps are implemented.  That's process.

What process?  Well, there are basically 5:  litigation, negotiation, collaboration, mediation and kitchen table discussion.  

In litigation, the steps are formal and choreographed.  There's no opportunity for direct communication between parties, no opportunity to dig deep for needs and goals instead of positions, and no control over the evaluation process.  That last part is left to the judge, not the parties, a person who has never met them, and may have an entirely different outlook on life and parenting.  

Negotiation provides a little bit more control over the evaluation process, but usually the lawyers control how that works.  There's little if any direct communication. Again, it's very formal, arms length and positional, but at least the parties make the ultimate decision.  Usually that decision has a lot of relationship to what a judge might do.

Collaboration has a lot of opportunity for direct communication, communication can be more productive because professionals are there to help that discussion and provide information.  A weaker party is supported so everyone feels they have the facts and the space to make the decision that's right for them. The focus is on needs and not positions. In collaboration, parties develop skills they can take with them into the future and because there is no threat of court, everyone has the ability to craft creative solutions to their problems. The parties control their destiny both then and after they leave the Trenches. 

Mediation also has a lot of opportunity for direct communication.  The mediator is a true neutral, however, so there is no support at the table for the weaker party.  There is no education piece or assurance that everyone has all the facts.  It is assumed everyone will play by the rules and speak up for themselves.  Here also there is an opportunity for creative solutions because mediation focuses on needs  instead of positions.  The parties decide how everything will wind up.

Kitchen table is when two people sit down and talk about what makes sense for them.  They may not have all the information, they may not have the same bargaining power, and they may never address their needs.  Then again, they might. The parties have the most opportunity for communication and control.

How the information is gathered and shared has a huge effect on outcome.  The formal information and decision making processes are adversarial and serve to increase tensions between the parties, rather than reduce them.  They also serve to insulate the parties from the direct effects of the conflict.  The more informal methods dig deeper into the whys of each action and encourage a thoughtful solution.  They also require direct, face-to-face communication, and facing conflict head on.  That can be too uncomfortable for some, and dangerous for others.  Each process works for some people and not for others.  A professional's first job is to help a client determine which works for them.  It is the most important job we do.  Here in the Trenches.

Do You Value What I Do?

Let's flip to the other side of "What Would You Pay For That?"  What would you pay to have your attorney guide you through the Trenches, and provide advice and counsel?  Really think about it.  I hate the billable hour.  I don't think that's a surprise to anyone reading this blog.  I hate it for a lot of reasons, all of them to do with helping my clients.  I know my clients pause before calling me with information or to ask advice, because it costs them to call me.  As a result, I sometimes don't have all the information I need or my clients do something really stupid because they didn't tell me first so I could advise them it was a bad idea.  There are times when I pause before doing something for a client, not anything case threatening, but still, I pause because I know it will cost the client money, and I know their financial situation better than anyone.  I feel guilty working slowly, yet there are times when I must. Sitting and just thinking about a case comes with a timer and a price tag.  That's how the billable hour works.   I've hated it for a long time.

I want to move away from the billable hour, not to a place where I simply quantify the hours I think I will spend on a case and multiply it by my hourly rate to come up with a price.  I don't want to go to a place where my work is commoditized and a letter costs $X and a pleading costs $y.  I dream of a world where I talk deeply with my client about their case, what it will entail, about it's strengths and weaknesses, and arrive at a price that reflects the value of my services to them.   Then, I can handle the case the way I want it to be handled, knowing fear of incurring cost is gone.  How much better would that be for everyone?  I think it would be fantastic.  I've done a lot of reading, and I think it can be done.  What's the problem?

I'm scared.  My clients are people with limited resources.  What if they can't afford me?  How do I help them understand the value of what I provide?  What if they don't value what I do?  What if we agree on a value and they abuse it?  What if they call my office a million times a day?  What if they monopolize all my time?  How do I handle that?  Then I think, I've looked at the books.  I've reviewed the cost of my individual cases.  I know that if I told some of these people what their cases would end up costing (and I am by no means the most expensive lawyer in the Trenches), they would never have believed me.  Yet, these people with limited means have found the way to pay my bill.  What if they knew up front how much it would cost?  Wouldn't it be great to be able to budget for that?  Do people really want that?  I think they do.  As a matter of fact, a returning client called just as I was beginning to mull actually implementing a fixed fee or value based pricing.  We asked how he would feel if we told him the cost would be a set amount (and it was not a small amount)?  He thought it would be great.  That's right, great.  He said he could budget.  He could weigh if the fight was worth the cost.  He'll be back.  He told me so, and we'll discuss value.

What do you think?  I really want to know.  Here in the Trenches.

What Would You Pay For That?

When something keeps appearing in my life, I'm sure it's meant for a blog post.  The thing that has come up time and again over the last week is value.  Value is an integral part of life here in the Trenches.  Our clients have property to value.  Those of us who toil here assign a value to the services we provide.  Really, what is value?  Merriam Webster defines value a few ways:   the monetary worth of something; relative worth, utility, or importance; something (as a principle or quality) intrinsically valuable or desirable.  Value is all around us in the Trenches.  It's an intrinsic part of our world.

Maryland is an equitable division state.  That means the court is supposed to deal fairly and equitably with the marital property.  One of the facts the court looks at to determine what is equitable is the relative value of the property owned by the marriage.  How do people decide how to value their property?  Wait, did I say value their own property?  Is that even OK?  Sure it is.  Who better than the owner of a property to talk about its value.  Anyway, how would someone value their property?  It depends on that the property is.  Let's talk about a few.  

If the property is a house, value can be determined by comparing the house to other houses that have sold recently in the area.  The value of the house can also be what an appraiser says it is.  An owner could use the assessed value for property taxes as its value.  Maybe a realtor can give them an idea of the price for which they would list the house.  Of course, an owner could simply take a guess too.

What about cars?  There's the Kelly Blue Book.  Then there's Auto Trader.  I suppose there's also Craig's List.  When you look at the Kelly Blue Book, do you use trade in value, dealer price or private party sale?  It depends on whether you want your car to be worth a lot or worth a little.  

Retirement accounts?  Well, most of those have statements.  The same with bank accounts.  

Oh, and your stuff?  Unless it's Baccarat or a Picasso, it's pretty much worthless.  That's right, worthless.  An owner can testify to the value of their stuff, but a judge is probably not listening.  The value of the stuff is yard sale value.  That's right, yard sale value.  Take all of your stuff and put it in the yard with a for sale sign on it.  That's the value.  Sentimental value means nothing.  It's all just stuff with a price tag.

One last thing - debt.  I know you have a mortgage on your house and a loan on your car.  I know they're substantial.  They may even exceed the value of the house or the car.  In your world, that's a negative value.  In the Trenches, the value can never be less than zero.  That's right, zero is the lowest number in the Trenches.  That's my world, and yours if you visit me here in the Trenches.

That Well Won't Prime

One of my closest friends here in the Trenches and I are in a collaborative case together.  The case is wrapping up, and my friend is doing the first draft of the agreement.  He sent it to me late last week.  I made some edits and sent it back to him.  In return, I received an email from him asking me why I made a specific change.  I explained it and thought to myself, "Duh, do you think I'm silly enough to let my client get the short end of the stick on that piece of property we agreed to split it equally?"  He wrote back, asking why it was that I would want him to change the agreement so that HIS client got the short end of the stick instead of half (I'm sure he thought "Duh" as well).  Wait a minute - we each thought the other's changes hurt our client?  What's going on here?  I then did the thing that I should have done in the first place:  I said I thought we were having two entirely differenct conversations, and could he explain.  He did.  Then I did.  Guess what?  We WERE having two entireley different conversations.  Each of us was operating from a different set of facts and a different definition of the terms.  As my friend then said to me, "Just like any married couple."  So true.  Once we had the same facts and the same terms, we agreed quickly because both of us were somewhat correct, and together we were totally correct.

Like most of the people we see here in the Trenches, my friend and I each assumed that we were operating from the same set of facts and the same definition of terms when we had our conversation.  What happens with our clients, however, is they get into a heated discussion about whose position is right.  They are so invested in not being wrong, that they never stop to consider that they may be having two entirely different conversations.  Why didn't my friend and I do that?  Why didn't we devolve into a heated debate at cross purposes to each other? In a word, trust.  We trust each other.  That's huge.  As Stephen Covey used to say, trust takes a lifetime to build, and a second to destroy.  All those deposits you make in someone's trust bank can be gone in a second with one act of betrayal.  My friend and I have never made a withdrawal from our trust bank; most of our clients' trust banks are overdrawn.  A lifetime of little betrayals erodes even the biggest deposits of trust.  When the bank account is empty, those folks are in our offices as high conflict cases.  They're with us because they are no longer able or care enough to make sure they are operating from the same facts and terms.  They are too hurt to back up, regroup and try again. Compromise feels like loss. Pain makes their rational selves take a holiday.  Now, to be sure, some of our client really shouldn't be married.  I wonder, though, how many would still be married if they took the time and put in the effort to ensure they understood what their spouse was saying to them.  I know, that takes time most people don't have, with work and children and running around.  It probably takes a lot of work with a skilled therapist or mediator to start to put the money inthe trust bank rather than continuing to overdraw it. Still, I wonder.....Here in the Trenches.

A New Pair of Running Shoes

I got a new pair of running shoes on Saturday.  In the infinite wisdom of running shoe companies, they decided to change the shoes I love.  The new model?  It doesn't fit.  Ergo, I headed out to the running shoe store.  Back when I first started running in earnest, I had no clue how to choose a running shoe.  I walked into a running store, looked at the wall of 50 shoes and picked a pair.  Sometimes I had help that found me the right pair (until the company changed the design).  Sometimes, I ended up with more than a few pairs that didn't fit right.  In fact, one of those pairs created such a problem that I had trouble wearing heels for years and couldn't run for six months.  Sorry, I digressed.  This time, I walked into the running store, explained what I needed, what the shoe had to be like - wide toe box, zero drop, fairly light weight - and tried on what they had.  I ignored all the other pretty shoes because I knew they were wrong for me.  The lovely man who was helping me tweaked the size, the width and the model until I found the right pair.  Easy.  I left happy and had a great run that afternoon.

Running shoes are like lawyers.  There are a lot of different lawyers.  They are all alike, in that they are all lawyers.  Like running shoes, however, one lawyer is not like another.  One size does not fit all.  That's why there are so many different types of running shoes - everyone needs something different.  That's why there are so many different types of lawyers - everyone needs someone different.  The problem in the Trenches is that most people are only here once.  They don't have the benefit of experience or trial and error to know the difference between one that's a a good fit and one that could cause more harm than good.  Most people don't figure out which one they have until it's too late.  WAIT.  I take that back.  Most people do know, they just don't pay attention.  It's kind of like the running shoe that really hurt my foot.  It didn't feel right from the beginning.  What did I do?  I minimized my feelings.  I told myself I was just being the princess and the pea.  As my foot hurt more, I told myself something else was causing the problem - old age perhaps? I had clues all along; I simply ignored them.

Isn't that what clients do?  Aren't they human too?  They're usually pretty good at it.  I'm sure most of them knew something was wrong with their marriage or their relationship a long time before they ended up in my office.  They told themselves it was just a phase, that thing would get better.  Only, they didn't.  Things just kept getting worse until one day, well, they are in my office.  It's human nature.  You would think that these same people, having ignored that feeling in their gut that something wasn't right, wouldn't ignore it again.  You would think that the minute they had that feeling that this wasn't the right lawyer for them, they would address the issue immediately.  You would think they would talk to the lawyer, and if it still didn't feel right, change lawyers.  You would think that and you would be wrong.  You see, people who have ignored their gut feelings for so long aren't in touch with their gut anymore.  They also don't know they don't have to stay with the first attorney they choose.  Cases take a long time to work their way through the system or through settlement negotiations.  The wrong lawyer can make it feel like it takes longer than it does, and because they are not speaking the same language, can reach a resolution that is not what the client desires.  The right lawyer can shorten the process and help the client reach an acceptable resolution.  Here in the Trenches.