The first Day of Daylight Savings Time

Daylight Savings Time kicks my butt every year.  I hate losing the extra hour of sleep.  I always plan to get to bed extra early the night before, and either that doesn't happen, or I end up tossing and turning for hours. This year, I also managed to have an earache.  I woke up exhausted.  I had a headache and an earache and felt generally awful.  The problem is, I still had my morning 7:30am walk with a friend, followed by meeting Max's walking expectations.  Then, there was my weekly yoga class at noon.  Tomorrow morning, I have to be up at 5 and out the door by 6 to babysit my granddaughter. Life doesn't stop just because Daylight Savings Time is getting the best of me.

Divorce is kind of like Daylight Savings Time.  Most people, if they're really honest with themselves. know in a small corner of their minds that their marriage is ending. Maybe they plan for it a bit, maybe they don't.  It comes all the same.  It kicks their butts, and knocks them down.  Life, however, goes on.  There's still work to be done, children to be cared for, and relationships to maintain.  Life doesn't stop just because there's a divorce.

In past years, I would power through the first day of Daylight Savings Time.  It wan't going to get the best of me!  So, I dragged myself through the day, doing everything I normally do.  It took me the better part of a week to recover.  Not this year.  Sure, I went for my walks and I went to yoga.  I also took a nap, sat and read a book or two, surfed on social media and laid around petting Max.  (I also took 2 ibuprofen). I acknowledged that today was different than other days and I couldn't treat it like it was the same.  I still did what I needed to do, but I took care of myself for the rest of the day.

When people are getting divorced, somehow they see it as a sign of weakness when they're exhausted, overwrought or just plain sad.  It's kind of a badge of honor that the divorce won't get the better of them.  Or maybe it's that they won't give their ex the satisfaction of knowing that getting divorce affected them.  I understand that desire.  The problem, however, is that divorce can be emotionally and physically draining.  It can also be a long process.  It is guaranteed to exhaust, overwhelm and sadden you.  When you don't acknowledge those facts and actively plan for them by engaging in self care, you could wear out before the end (which could be disastrous and lead you to agree to a bad settlement just to be done), not be in a frame of mind to settle (which could lead to an unnecessary trial or bypassing a good settlement) or take far longer to recover (and in the meantime, those near and ear to you suffer).    Self care is not being self-indulgent; it's simply good sense.  Here in the Trenches.

Memories Matter

#1 Son and my Daughter in Love gave me a ticket to join them to see DIsney on Ice with their family as my holiday present.  I am certain it would not be the ideal holiday gift for many of you.  For me, it was the perfect present.  I love Disney, so you would think that was the reason it would appeal to me.  That’s not it.  It was the experience.  As far as I know, this was Granddaughter’s first live show.  It involved Disney princesses, which is a bit of an obsession with her right now.  I got to be with her as she experienced one of her “firsts,” and it involved something we both love.  Beyond that, it was beyond value that #1 Son and Daughter in Love wanted to share that first with me.   It was magical for all of us to watch her face as she saw her favorite characters come to life.  It was an out of this world experience to see her dance to the music and sing along with the songs.  She was so excited to have all of us with her. I will never forget that night.  The gift was priceless.  

Another gift #1 Son and Daughter in Love have given me is the opportunity to spend Monday mornings with Granddaughter. We are alone together every Monday her parents are working from 7am until 10am, when we are joined by the other Gaga.  We play games that are different than anything she does with anyone else, just like what she does with Mommy and Daddy and the other Gaga and Papas are different.  They’re our thing.  We spend Mondays making memories and sharing love.   I bring her nothing except me and pumpkin pancakes.

So often when families go through a divorce, money is tight and parents can’t afford to buy their children the things they ordinarily would have. Even worse, in some cases, one parent has the money to buy those things and does, and the other parent doesn’t.  When money is tight, parents worry that their children will suffer.  They worry that their children’s memories will be ones of deprivation.  They worry that the children will prefer the parent with money that’s being spent on them.  They worry that giving their children time with them isn’t enough.  I’ve said it before and I’ll say it again, parenting is not a sprint; it’s a marathon.  Sure, in the short run, the parent with the most bling may be the preferred parent.  In the long haul, however, what children have left are memories.  Things don’t build memories; people and experiences build them.  Don’t worry about the cost - a board game, hide and seek, building a snowman, and reading stories all cost nothing but mean everything to your child.  Here in the Trenches.

Take Care Of Yourself - You're Important Too

My life is a little rough and raw right now.  Yes, I've recovered from my fall in DC, thank you for asking.  I have had other issues, however, in my personal life which make my need for self care to be important, albeit difficult to achieve.  It's funny that as I moved through my daily life before, I really didn't give as much thought to self care, mostly because it wasn't imperative.  Once it became imperative, I was shocked that I had so little of it in my life.  Yes, I had my running and strength training, which keep me sane.  What I realized, though, was that there are many aspects to self care, and what I was missing was balance.  You see, running and strength training for me are solitary pursuits, and I like them that way.  What I didn't have, however, is much of a community in general.  Socially, people are hard for me.  I really don't know how to make small talk, I feel awkward asking personal questions (maybe because that's all I do in my professional life), and I always feel like I talk too much about me, which makes me uncomfortable.  In time of need, people are important, so I've been making more of an effort.  What I don't have is a lot of time to go out and be with others, even when I want to.

As a result, I am loving social media.  I found a running group on Facebook that's connected to one of my favorite podcasts.  This group of people is perhaps the most supportive, the most caring and the most active group of folks I could have found.  With them, I feel safe posting my run times, talking about my running issues, sharing their and my personal records and challenges.  They feel like family, even though I've never met any of them in person. I commiserate with someone about their rough week at work, cheer when a new member completes their first race, get excited when someone moves to a new state or country.  We know lots about each other, and you will NEVER see a snarky comment on that page, which says volumes.  I joined an online coaching program for my running, and as I post my daily runs, I get feedback and cheerleading from the coaches and other members and I do the same for others.  Maybe to you, this all sounds like torture, but to me, it reminds me that there are people who care out there, even when I can't get to them in person.  It means a lot.

Here in the Trenches, divorce can be isolating.  The process of ending a marriage or a relationship and all the attendant issues that come with it leaves most people fairly rough and raw.  Divorce is an uncomfortable issue for most people, and folks in the Trenches are highly of conscious of that.  Their friends avoid them because they don't know what to say or do, or because they're tired of listening.  The process itself feels all consuming, and life-sucking.  Yet, folks in the Trenches have to go on with their daily lives and also deal with their legal issues.  What these folks need more than anything is self-care.  They need something to provide them with an outlet and a community who cares for them without judging.  It's hard to do, but vital.  While in the Trenches is not the time to venture out of your comfort zone, but rather to work with it to get the support you need.  What is it that gives you energy?  What resources are there for that activity?  What groups are there to support you, whether in person or virtually?  It can take some work to find what connects for you, and I know that's not what you feel like doing.  Do it anyway, because you won't know how much you needed it until you find it.  Here in the Trenches.

When is Helping Really Not Helping?

For the past few years, we have had two mourning doves make a nest on top of our outdoor water heater.  Our water heater is just outside the back door, so it's shielded from predators.  Unfortunately for the birds, it also tends to heat up periodically during the day when in use, plus its smooth surface makes nest building difficult.  They have had marginal success in raising their family from egg to launch.  Yet, they return every year.  This year, we decided that they needed help, so we built a little wooden platform with a railing on top of the water heater.  We figured it would insulate the nest from the heat and stop the pieces of nest from sliding to the ground.  We built and we waited.  The doves came back, but they didn't like our platform.  They built a piece of a nest on it, and then abandoned it.  They still like our house; they simply decided to build their nest on top of the trellis which is less than 6 inches away.  As I sit here writing this post, I can see Mama Dove out there sitting on her nest, and I can hear Papa Dove talking to her.  They are content, even though the water heater with the platform is arguably the better nesting site.  We need to learn from them (although we probably helped the odds of the chicks surviving by moving them from the water heater).

If those darn doves don't help us here in the Trenches, I don't know what does.  In law school, or medical school, or any other professional school, we are taught to solve the problem.  We are taught that our training is to help us solve our clients' problems.  We, as professionals, think we are taught the answers to the questions.  It's no surprise that when we are set loose into the world of helping people, we dive almost immediately into problem solving mode.  We listen to our clients in order to solve the problem.  What we discover is that our training makes us lousy listeners, and because we are lousy listeners, we are poor problem solvers.

Let's look at our doves.  We watched them, we identified a problem and we provided a solution.  The doves didn't like the solution because of one or more of a number of things.  Maybe they didn't think they had a problem.   Maybe the urge to nest is greater than the desire to launch live offspring.  Maybe they enjoyed the periodic warmth of the water heater.  Maybe they weighed the options and decided it was more important to have a nest sheltered from the elements and predators, than anything else.  We don't know because doves can't talk.  Our clients, however, can and do talk to us.  When we listen to understand what they're saying, rather than simply to solve the problem, we gather valuable information.  We learn what is important to them.  We hear their concerns.  We ask them questions.  We work with them to solve the problem as they see it, not as we are trained to see it.  They feel heard.  They feel understood.  Most importantly, because of all of that, they take our advice because it makes sense to them and their experience.  Here in the Trenches.

Choices and 5 Stitches

I think you could say I had an adventurous Sunday.  I really had a marvelous day with Daughter and friends.  Brunch was fun and delicious.  We took Daughter's friend to all the DC sights, many via the DC Trolley Tour.  We were heading to our last stop, the Museum of Natural History (what girl doesn't love looking at all the huge gemstones?), when my toe caught an uneven piece of pavement and I went down, like a giant redwood on an aggregate sidewalk.  No time to think about how to fall, no time to try to break the fall, I just went down on my chin.  There was lots of blood.  Paramedics were called.  I ended up being driven home by Daughter and getting 5 stitches.  I did not, however, break anything except skin.  Yes, my jaw is sore and swollen, but not broken.  Unlike some of my friends recently, I didn't break a wrist.  All in all, not catastrophic.

When I look back on Sunday, what do I remember?  I remember what a wonderful day it was.  That's right.  It was a wonderful day.  Although it was hotter than blazes, the sky was a perfect shade of deep blue.  We had lots of fun.  We also had an adventure.  Could I look at the day differently?  Of course I could.  I could remember a day that was ruined by my falling on the sidewalk.  I could be upset with myself for tripping. I could feel embarrassed because I was that person sitting on the sidewalk with others making a fuss while the world walked by and stared.  I could have been upset because I screwed up Daughter's friend's first trip to DC in 20 years.  I could have done all those other things, and when I was younger, I might have.  The point is that it really was a great day and one thing happened at the end that was bad.  I admit it wasn't a little thing like breaking a nail, but in the scheme of things, it was a blip.  I had a choice of how to view it. I could have looked at it as a day ruiner or I could see it as something not good that happened during my terrific day.  I chose the latter.

We are all faced with the choice I had almost every day.  My clients are always faced with that choice when they are in the Trenches.  Let's face it, the divorce process is not pleasant.  The decision to end a marriage is agonizing to make.  Being told your marriage is over is crushing.  Having to divide your children's upbringing is excruciating.  Most people live fairly long lives.  In the scheme of things, for most folks (and there are exceptions), their divorce is a small piece of a very long life.  It's a blip, if you will.  I don't mean that in a flippant way; I say it to put the divorce in perspective.  Everyone in the Trenches has a choice.  They can let their divorce define them and the rest of their lives.  They can  look at it as a small part of an otherwise great life.  They can see it as an opportunity to learn and grow.  They can view it as the thing that ruined their wonderful life.  They can decide that it's the starting line for a new chapter in their lives or a new direction.  They can decide that the divorce meant their married life was a sham and that they wasted those years.  They can choose to use their energy to hate their former spouse, and keep that hatred going.  They can choose to forgive, or if not forgive, to move on.  Every choice has a consequence.  Every choice evokes a memory and an emotion.  Each client chooses for himself or herself what that memory and emotion will be.  Because it is a choice.  Here in the Trenches.

Lessons for the Trenches from Meb

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It's not often that I can combine my two loves, running and the Trenches, into one blog post.  Today is that day.  If you read this blog at all, you know I love to run.  I am also a huge fangirl of Meb Keflezighi (If you don't know who Meb is, head on over to his website, or follow him on Twitter or Instagram).  The great thing about Meb is that you don't have to be a runner to learn from him.  In fact, many of the things I have learned from following his career and reading his books have nothing to do with running (I will admit that I love his active warmups, however).   I've just finished his new book, 26 Marathons: What I Learned About Faith, Identity, Running and Life, and I recommend it to everyone, runner and non-runner alike.

I know you're thinking that someone like Meb has an incredible amount of innate talent.  For most of us, even if we trained like Meb, we would never have running times like Meb. As it is, he runs a marathon in just over the amount of time it takes me to run a half marathon.  What is it na superstar like Meb could say that would resonate with folks like us?  Plenty.  Here are three of my takeaways for those of us either working or finding ourselves in the Trenches.  

1.  Always have a goal, or two, or three.  Meb always had a goal for a race, and then he had a back up goal, and a back up to the back up, ALLof which would mean to him that he got the bet out of himself.  He created all of them BEFORE he started the race. For example, his goal may have been to win the race.  If it became obvious that he wasn't going to win, then his goal might have been to place in the top 4.  If it became obvious that he wasn't going to be able to meet that goal, then his goal might have been to run a certain time, or just to finish. If Meb met ANY of those goals, then the race was a success.  
     Here in the Trenches, clients know what they want.  What they don't do is really think about what will happen if they don't get what they want.  When we sit in negotiations and the other spouse rejects our client's offer, the client often struggles to find another position that will be acceptable; and they are usually not successful at that time, in that room.  Their struggle is at the table when it should be before they enter the room.  If they pin all of their hopes on that one thing, then not only can they not think of a back up, they also feel like the negotiations have failed.  Think how much better a client would feel if they know that they are going to fight as hard as they can for the thing they really want, but if they can't get that, it would still be a success if they got something else instead, or if they picked up a piece of information that would help them come up with a new settlement idea in the future.
     Those of us who toil in the Trenches could also learn a thing or two from him.  Many times, we go into a mediation or a negotiation with our only goal being to settle the case.  Sometimes that's not possible.  There are other goals we could have as backup if we gave it advance thought, but we usually don't.
  
2.  Practice gratitude.  All the way throughout Meb's story, you see instances of gratitude.  His family escaped war-torn Eritrea, and made its way, slowly and painstakingly, to the United States.  They suffered a lot in the journey, but you won't hear it from him. He expresses gratitude for being able to leave Eritrea when many could not.  He's grateful it gave him the opportunity for an education and his running career, when so many others did not have that chance.  He's grateful for the fans lining the race course, cheering him on, even in races in which he suffered great pain, injury and disappointment.  He's grateful to be able to inspire others.  He's grateful to have a wife who understands him and supports his work.  Gratitude exists at every turn of his life, even when he is forced to drop out of a race.
    This lesson isn't new for this blog.  Gratitude is a practice.  It's an important practice that serves us all well, especially when things are not going as we have planned.  If you don't exercise it often. then gratitude desserts you when life doesn't go as planned. It's especially important to exercise it when things are going poorly.  It doesn't matter how small the thing for which you are grateful; it is the practice of gratitude itself that has the power to lift you up and sustain you. 
      
3.  Community is vital.  What I've noticed through all of Meb's books is the constant emphasis on the importance of community, on every level.  The community of his family, without whose support he couldn't focus on his running or be the ambassador for running he is.  The community of runners, who train together, talk during races and sometimes even cross the finish line together, hands united.  The running community that pulls together no matter whether they're Meb or the 16 minute miler.  The community of country which Meb felt keenly when he won Boston the year after the bombing.  Meb describes getting a catch in his throat when he passed the point in the New York Marathon where one of his colleagues had died the year before.  Meb's description of running Boston the year after the bombing is amazing:  he wrote the names of all the people who died on his bib, he crossed himself when he passed the spot of the bombs, he got choked up when he realized that an American was going to win Boston in the first post bombing year and what that represented to Boston and America. What's fascinating about Meb is his continuous multilevel view and appreciation of all of his communities.
   Folks in the Trenches are suffering a crisis of community.  Their identity as part of the community of family is changing; they are losing part of that family because of their divorce, and the part they aren't losing is changing.  Their position in their local community is changing; they find out who their real friends are...and aren't. It is overwhelming and crushing to discover that not only is your family changing, but so is your immediate world.  Most people have more levels of community to draw on than they think.  It's just that when large parts of their world are falling apart, they don't think about it or look for them.  All you need is one level to form a base to rebuild the others.  Trust me, I've done it.  Look for a community, search for it: it's there.

Alright, I have a fourth takeaway from Meb. 20 miles is halfway.  I know, a marathon is 26.2 miles, so 20 miles isn't really halfway.  The race, however, is won between miles 18 and 26.  The person who goes out too fast rarely has enough left to win.  Most of the strategy and the moves toward the lead take place well past mile 16. If you don't have the stamina and the training to pick it up and surge toward the end, then you won't have a chance of winning or perhaps even finishing.  Life here in the Trenches is like that.  Most clients approach a divorce like a 5k, and enter into it going full tilt, which is what you do in a 5k.  Life in the Trenches moves a lot slower than that and a case takes longer than you think.  Treat it like a marathon you want to win, not like a 5k you sprint.  20 miles is halfway.  Build up your stamina, plan for the distance.  Here in the Trenches.

What is Collaborative Law; What isn't Collaborative Law?

I was on one of my family law listservs this morning, when the conversation quickly veered from the strangest things we've ever seen clients fighting over to bashing collaborative law.  I can’t understand why lawyers are still bashing collaborative practice when it has been around for 19 years. I have been trained to practice Collaborative Law since 2002.  I have been teaching collaborative practice through a training group AND under the auspices of Administrative Office of the Courts of Maryland since before 2008. I have taught collaborative practice as a law school class at the University of Maryland’s Francis King Carey School of Law, an ABA accredited law school, since 2014.  I also note that 19 states (including DC) have passed versions of the Uniform Collaborative Law Act as either a statute or a rule, and two more have introduced the Act into their legislature.  Collaboration is here to stay.  Here are are some observations and misconceptions about collaborative practice:

1.    “Only the lawyers who aren’t competent to try cases or litigate the old fashioned way do collaborative law.”  As in any area, there are competent and incompetent Collaborative Law practitioners.  My experience, especially here in Maryland where we’ve hit a tipping point in Collaborative practice, is that it is usually the more experienced and competent lawyers who practice this way.   

2.    The goal of Collaborative practice is to reach a durable acceptable agreement.  That, I believe, is the same goal of litigated cases that settle and mediated cases.  The type of agreement drafted in a collaborative case is no less detailed than any other agreement I draft in any other case.  If the agreement stinks, that’s the quality of the lawyer and of their collaborative counterpart, not the process.

3.    “Collaborative law takes the early, easy money.”  What collaborative law does that no other process does on a regular basis is have a discussion and maybe more than one of where the money to pay for the process is coming from.  Upfront and early.  Unlike in other forms of representation, the goal is for the family to make decisions of what funds they have for their divorce and how to allocate them.  They make that decision, unlike in traditional practice where the lawyers make that decision and for the most part we let the client figure out where to find the funds.

4.    Collaboration with a little “c” is the same as Collaboration with a big “C”.  It’s not.  Actually, it’s nowhere close.  I have been practicing family law for 30 years.  I know most attorneys in town and I get along with most of them.  We are collegial and friendly, if they are not actually friends of mine.  When we get a case together that is not collaborative, we call each other, we talk about what documents we might need informally to get conversation started, AND we start talking about how the case should resolve.  Because “business as usual” means that we know best about how to settle this case and we expect the clients follow our lead.  If it were a bus, the attorney would be driving the bus, and the client would be a front row passenger, asking whether we can turn one way or the other, but not in charge.  Because we’re driving the bus, we internalize when the journey does not end where we want it to end or takes a different route – we become invested in the outcome.  As people first and attorneys second, that’s really easy to do.
        In Collaborative cases, the client is driving the bus and we are in the front row with the map.  They’re going to get us where we’re going, and we’re going to guide them there.  They are in control of the outcome and we need to let it go.  In all the years teaching this process, that is the hardest thing for traditionally trained lawyers and law students to do because we are trained to know the law and have the answers.  
         I’ll say one other thing on this point that I seen.  We think we listen well.  We stink at it because we listen to solve the problem and not to understand the problem and its underlying causes and emotions.  Often in the small c collaborative cases, we think we are solving the problem but we’re solving either the wrong problem or only part of the problem because we stopped really listening to the client when the problem and solution became clear to us.  I see it in my law school class as well as in training with practicing attorneys – we all jump to the solution. (And a big "thank you" to Suzy Eckstein for the bus driver analogy.  It's my favorite)

5.    “The parties waive the right to use information gathered in the collaborative process at trial.”  That’s not true.  The process, like mediation, is a confidential process, either by contract or by law.  That means that any information created within the process is confidential and not to be used in court.  As a mediator, you don’t get to use my notes.  In Collaboration, you don’t get to use schedules and compilations created as part of the process. The information underlying those documents, as well as other information that could be investigated to lead to other pieces of evidentiary proof is always available to use outside the process.  It is what it is, and that’s why in states where adultery is a bar to alimony, you have to have a long talk with your client about whether to use collaborative:  the statement in the process is confidential, but the dirt the other spouse digs up outside the process after finding out this little tidbit is not.  This is the same in any process.

6.    Collaborative Law recognizes that most people want to do the right thing.  Most people involved in a dispute don’t have all the information to know how to do that.  Parents think all kinds of things when it comes to their children; some of them are downright harmful, but many parents agree to these things because they don’t know any better, not because it is the right decision.  In collaborative practice, the goal is to empower the clients to make their own decisions by providing them information and support and helping them reality test the options they create.  Like Gary Borger said, that’s why we have child specialists to provide the clients with information about child development and information about their own children’s abilities to comprehend what is going on and handle whatever arrangements the parents decide.  Also, as we all know, not only does emotion get in the way, but also exacerbates the underlying communication issues the clients have.  A divorce coach or coaches help them develop strategies and skills to both negotiate for themselves and to communicate effectively with each other moving forward.  Collaborative helps give them the tools and foundations to solve future problems which supporting and advising them to solve their present ones.

7.    In Collaborative practice, we work hard to ensure that client not only understands the decision made, but also the why.  How many times do we in traditional models have clients come to us to modify agreements and their understanding of the agreement is 180 degrees from what the agreement really says?  I see it with my parent coordination clients all the time.  You think they understand, and they think they understand, but they don’t really.  In collaboration, we discuss the whys and whats of each decision, and check in again and again to make sure our word smithing matches their intentions.

My colleague here in the Trenches, Doug Sanderson (who trained with me in 2002) asked me to address the one issue that seems to get the most negative traction – attorney disqualification if the collaborative process does not result in a comprehensive agreement.  What I like about teaching the subject fairly frequently is that it forces me to think about the whys of Collaborative practice, as much as the hows.  I believe disqualification is essential to the Collaborative process for a number of reasons:

1.    The client’s instructions and objectives.  The client’s instructions, in writing,  to the attorney are to help them arrive at a mutually agreeable, durable agreement that meets each of their needs and the needs of their family (or other parties affected by the agreement ) moving forward.  That instruction is inconsistent with the client’s instruction to the attorney in any other process, which is to represent their position, which may not meet the needs of the other party or the family moving forward.

2.    Waiver of privilege and protection of confidentiality.  The process itself is confidential and by participating in the process, the client agrees to waive attorney/client privilege within the process.  There really is no way to put that cat back into the bag if the process is unsuccessful.  Also, by statute, rule and contract, either party may prevent disclosure of a collaborative communication.

3.    The difference in the role. The attorney’s role in Collaboration is for settlement only. If I am representing a client in mediation or lawyer negotiation, my role is not simply settlement.  I am aware that whatever happens in those processes, I can take the matter to court. There is always that coercive threat.  That difference in role means that I am not as quick to terminate the process when the going gets tough, but rather hunker down and try to find another way around the impasse; the client shares that interest because to do otherwise means engaging other counsel.

4.    Maintaining the focus.  Collaborative conversations are not positional bargaining.  In fact, they are diametrically opposed to it.  I keep something in my back pocket if I know I might be going to trial in a matter, which is something I don’t do if I am Collaborating – because transparency is one of the hallmarks of the process, I am required to instruct my client to reveal all information which may be pertinent to a decision, and also no one can take advantage of another’s mistake of law or fact. One of the hallmarks of the Collaborative process is the ability to reach resolutions that are creative, out of the box and not something a court would necessarily do.  Collaborative’s sole focus is on helping the parties create a durable acceptable agreement that meets the needs of all parties and those affected by the agreement.  Requiring disqualification maintains that focus without distraction.

5.  My friends here in the Trenches, Doug Sanderson and Bruce Avery, added the following points:
 From Doug: "As the spouses head down the road of Collaborative divorce, they will invest not only time but also money, which in the vast majority of cases is a limited resource for both, and certainly for the family. That prospective investment in Collaborative divorce, paired with the prospect of needing to hire a different attorney (and other professionals if/as needed) if the Collaborative process fails and the spouses need to pursue a litigation process, is explained to the client up front as being another positive reason why this process can work better, on top of all the reasons you’ve listed. It may sound counterintuitive to some, but I suggest, and have observed, that it constitutes a “buy-in” to the Collaborative process that helps keep clients in it."  And from Bruce:  "Another side to disqualification is it takes away any financial incentive for the attorney to throw the case into litigation.  Not that anyone on this listserv would do this, but litigation earns me a lot more money that collaborative (or anything else).  There are those who I think do push things into litigation that don't need to go there to the economic benefit of the attorney."



I could go on and on, and some of you probably think I have.  Let me close with a few thoughts.  First, Collaboration, like mediation and litigation is simply one method of dispute resolution.  It doesn’t work for everyone and it is not appropriate for everyone, attorneys and clients alike.  Second, those of us who work in the Trenches are required by our ethics rules, and if we are talking Collaboration in a state which has passed the Uniform Collaborative Law Act, by statute, to obtain the client’s informed consent to a course of action.  I am at a loss at how folks who have not taken the time to understand Collaboration can actually do that.  I don’t care whether those toiling in the Trenches like Collaboration or think it’s some new age jumbo jumbo, I believe we have a duty to discuss it with our clients as part of their process choice.  Here in the Trenches.

Groundhog Day?

If you keep doing the same thing, you'll get the same result.

We're back from Disney Princess Half Marathon Weekend.  It was a heckuva humid day for the 10k.  Of the four of us in my family who were running, one of us runs all the time, two of us are in good shape because of their jobs, and one of us.....doesn't train at all.  Three of us handled the 6.2 miles and the humidity just fine; one of us really did not.  In fact, that one handled it so poorly that we were concerned about heat stroke.  Nevertheless, all four made it across the finish line more or less together.  After the race, the one of us who didn't do so well said they'd do better next year.  My response?  Are you going to train?  The answer was "not really."  Well then, the result won't change.

Here in the Trenches, so many of our clients are like that.  They were unhappy in their marriages.  They felt they married the wrong person.  They didn't like the way they were treated.  They are unhappy with their co-parenting interaction with their other parent.  What do they do about it?  Some of them get into therapy, take parenting classes, do a lot of introspection.  Most of them do nothing.  Then they wonder why their co-parenting doesn't improve and why they marry the same type of person over and over again.

Insanity:  doing the same thing over and over again and expecting different results.

Here in the Trenches.

Divorce Can Be Like Disney's Princess Half Marathon Weekend - If You Let It

It is almost time for the Disney Princess Half Marathon weekend.  That is the weekend each year where Daughter and I run a 10K on Saturday and a half marathon on Sunday.  I love to run, so I train for the races.  Daughter hates running with a passion, so she runs almost not at all prior to the big day.  Yes, she is a talented personal trainer, but aerobics is not her thing.  The running part of the weekend usually goes great on Saturday, but on Sunday, my baby is dragging.  She is miserable.  She hurts, she complains about running, and she does the race anyway. One of us usually gets sick afterward from the stress on our bodies.   Every year.  She posted Friday on Facebook that Princess Weekend is her favorite weekend of the year, bar none.  How can that be? She gets up before dawn on two days of our four day weekend to do the thing she absolutely despises and which makes her body hurt.  How can this weekend be her favorite?  Easy.  First, she runs it with me.  It's not that I am the best running companion, and in fact, I get a little aggressive at those people who don't follow the rules.  It's that we do it together. Second, we have made it our thing.  We meet the characters and get our pictures taken.  She out kicks me to the finish line every time.  Funny thing is, it's only been our thing for 6 years, and one year she couldn't run and we both missed doing it together.  Third, we spend the weekend with family.  Now to many people, that might not be a plus, but to us it is.  We get to spend time with my Mom, which we always love and try to do often.  We also spend time with my aunt and cousins, and that we only usually do at Christmastime.  I don't know about you, but as much as I love the holidays, they are a bit hectic and stressful, so it's nice to spend some down time with those folks. Fourth, we are at our favorite place - Disney World.  Even though we only go to the parks one day of the weekend, we usually do something special.  Disney wants everyone to have a magical vacation, and it feels good to be in a happy place, especially with people we love.  Finally, we know that none of the above would actually happen if we didn't have these particular races to run every single year.  That alone makes all the pain and physical misery worth it for her.

I had breakfast with a friend from the Trenches today, and we were talking about divorce.  She was saying how it really bothered her that so many of us in the Trenches only focus on the negative aspects of divorce.  We both recognize that there are plenty of negatives.  There are, however, a lot of positives as well.  For so many people, divorce represents a new beginning.  It is a time to reinvent themselves.  It is a time to configure the family relationship into one they always wanted but didn't have.  It is a time to start over and do things differently the second time.  As we talked, I thought a lot about so many of my clients over the years.  What I thought was that there were quite a few people who were unable to see anything positive coming from their divorce.  The majority, however, recognized that it was better to live life with someone who wanted to be with you rather than someone who didn't, and who saw, as time went on,  opportunities rising from their divorce which would never have happened had they remained with their spouse. They became the parent they wanted to be; their spouse became a better parent.  They were able to shift gears and do things their spouse never wanted and explore other interests.  They could take their life in a whole different direction.  Yes, divorce sucks.   Realizing your marriage has ended is awful.  The process is painful and time consuming.  The emotional toll on you and your family is immense.  The process itself is miserable.  The entire experience of uncoupling doesn't have to be negative.  Divorce can bring with it new opportunities that would never have presented themselves otherwise and new chances to do better and different as life moves on to a new chapter.   I know it's hard to think that way when you're in the midst of the process, but I hope you will save the idea some space and explore it once you're done.  It's how Daughter thinks Princess weekend is her favorite of the year.  Here in the Trenches. 

A Deposition is Not a Conversation, and Other Lessons of Life in the Trenches

When you are in the Trenches, you have the opportunity to learn a lot of lessons.  Those of us who work in the Trenches want you to learn how to co-parent effectively with your soon-to-be ex, to manage your finances, to create a life into the future, and to plan for your old age.  Unfortunately, there are also a lot of lessons we don't want you to learn the hard way.  Today's blog post talks about 5 of them.

1.  A deposition is not a conversation.  A deposition is when the other side's attorney sits opposite you at a table and asks you questions, the answers to which are made under penalty of perjury and recorded by a court reporter.  The attorney can ask you about ANYTHING that could lead to admissible evidence at trial.  In other words, they can ask you about just about everything, and you have to answer.  If you are a party to the case, that deposition can be used in court to contradict your testimony at trial or in place of your testimony at trial.  It's that important.  It is also the only time that the other side's attorney gets to speak directly to you.  Here's what we've learned in the Trenches - if we treat the deposition as a conversation, you will too.  You will talk to us like you talk to your friends and acquaintances.  You will drop your guard, and you will say things that aren't entirely accurate or that you wouldn't have said if your guard was up, because that's how regular conversations go.  A deposition is not a conversation; it is court testimony in an informal setting.  Treat it that way, and you won't learn an unfortunate lesson at trial.

2.  Completing discovery isn't optional.  I know that answering interrogatories and producing documents is a massive pain in the posterior (remember, I was a client once too).  It seems ridiculous to you to provide every darn document requested and overwhelming to answer every interrogatory fully.  Do it anyway.  Let me say that again - Do it anyway.  If you don't answer every question completely, if you don't provide every document requested, and then try to introduce at trial information or documents that should have been provided but weren't, you will get a nasty surprise.  Your information or your document may not be admitted at trial, and if its an important piece of evidence, that preclusion could cost you a decision in your favor.  If that happens, it's no one's fault but yours.

3.  Monitor your electronics.  We are so electronically connected these days that sometimes it's hard to remember everything that has a password.  Sure, most people remember to change the password on their email and their social media accounts, but what about Alexa, your Nest thermostat, your Ring doorbell, your digital door lock, your security camera?  Did you know those all could be used to spy on you or to drive you a bit crazy?  Do you have your computer open while you're talking to your paramour?  Are you sure no one has hacked into the computer's camera and microphone?  Is the GPS enabled on the phone that's on your spouse's cell phone plan?  Is your iPad password protected -are files you don't want your children (or spouse) to see separately protected?

4.  Monitor your online presence.  I love the phrase that is being shared on social media - "Dance like no one is watching.  Post on social media like it will be an exhibit at your deposition."  Enough said.

5.  A text is not an oral conversation.  It is a writing.  It is not a "he said; she said."  It is evidence of what was said, every much as is an email.  Treat your texts as if they will be evidence at your trial.  Don't call your spouse names.  Don't rant.  Think before you text.  It is so much easier to press "send" in a text than in an email, and for that reason, many people send texts in the heat of the moment. Don't.  It will come back to haunt you.  Be businesslike and polite and you won't go wrong.

Learn these 5 lessons of the Trenches and you can concentrate on mastering the bigger life lessons.  Here in the Trenches.

P.S.  If you don't recognize the picture, it's from the scene in "My Fair Lady" when Audrey Hepburn finally "gets' her diction correct.

How Much Will My Divorce Cost? - Part 4 of 4

Whew!  You made it to part four.  Thanks for reading.  This part of How Much Will My Divorce Cost? is the hardest to think and write about.  This week, we're talking about fixed fees and value billing.  Why is this subject so difficult? There are a couple of reasons.  From the client's perspective, most of them have never been in the Trenches.  They have no idea of the value of legal services.  They all think that their case will be easier and take less time than other cases.  Plus, it seems like a lot of money to pony up.  From the attorney's perspective, they fear that without the hourly rate as a disincentive, clients will call them one million times a day, and monopolize their time, or (shudder) drop in unannounced multiple times a week.  It's also too much work to either figure out a fee that averages out to be reasonable or to sit down and have a deep conversation with the client about value and scope of service.

As we've done in the other parts of this series, let's start with definitions.  A fixed fee is a set amount of money that an attorney charges, either for set periods of the case being active or for discrete portions of the case, as opposed to a flat fee, which is a set fee for the entire case.  Let me give you more detail.  In a fixed fee, the attorney might charge the client $4000 for every 3 months the case is active, due and paid in full at the beginning of each period.  If you settle the case within the 3 month period,  then depending on the attorney and the length of time remaining in the time period, the client may or may not receive a refund of the pro rata unused portion.  An attorney might also charge a client per stage of the case, due and paid in full when that stage starts.  For example, the client might be charged for the initial litigation filings, then for discovery (information gathering), then for a hearing (which is generally a short court appearance), then for mediation, then for depositions, then for trial, and then post-judgment matters.  Each stage has its own fixed fee depending on how much time, skill and legal knowledge are required.  Fixed fees tend to apply across the board, with not a lot of customization.

Value billing is perhaps the most difficult of all the types of fees for the client to understand and the attorney to explain.  Value billing is simply that - deciding on a value to the case which adequately addresses the time and skill required of the attorney, and which the client believes is acceptable.  This kind of billing is difficult for a whole lot of reasons.  First, the client has to have a realistic vision of legal fees and the value of legal services.  That's difficult for most clients in the Trenches because the Trenches are usually the first and only time most people are ever involved in the legal system and have no concept of the reasonableness of a lawyer's fee.  Remember, part of reasonableness is the norms of the community, and they don't know what those are.  Second, The attorney has to assess the case in greater detail than they normally do in order to determine what the attorney thinks is reasonable. This assessment requires the attorney to do quite a bit of background work (at no remuneration) before setting the fee in order to determine the scope of the representation.  This second point is difficult on a couple of fronts: first, the client is usually anxious to hire counsel and may not want to wait to have an attorney under contract; second, the attorney may not want to put that kind of time into a lower dollar case. Third, the client and the attorney have to have an extremely detailed discussion of the extent and terms of the representation.  Having this kind of discussion when the client is emotional and overwhelmed is a challenge, but doable.

So I retain the format of the other posts, here are the pros and cons:

Fixed Fees

Pros

1.  The client knows what the representation will cost.  The attorney knows how much revenue the client will generate.
2.  The client can budget for the fee due dates.  The attorney has the certainty they will be paid and on time and their receivables will decrease.
3.  A fixed fee may be cheaper in the long run than an hourly rate.  The attorney has the incentive to be more efficient.
4. A fixed fee rewards the client who settles their case early. A fixed fee may mean the client is as motivated to settle as the attorney.
5. If the case turns out to be very complicated or time-consuming, the client doesn't need to worry it will increase fees.  The attorney can be creative without worrying if their creativity is costing the client too much money.
6. The client will feel free to share all important information with their attorney without concern for cost. The attorney will have all the information they need to best represent the client's interests.
7. The fee the client pays aligns with their need. The client may be willing to pay a premium for certainty.

Cons

1. The client may not have sufficient sources of cash or credit to pay a substantial fixed fee.  The attorney may lose clients who don't have the money up front, but who could pay over time.
2. A fixed fee may be more expensive than an hourly rate, depending on the complexity of the case and the length of time to completion.    
3. Knowing that there is another deadline for infusion of cash may cause a client to settle their case under unfavorable terms. Knowing a client lacks the funds to continue may also pressure the attorney to settle.
4. The client may cause compassion fatigue in the attorney by calling all the time.  Why won't the client stop calling?
5. This method may also inhibit creativity in order to get the case done before the next stage or installment of payment.  

Value Billing

Pros

1. The client is well-informed about the scope of the representation to be provided by the attorney.  The attorney has thought out the scope of representation and the intricacies of this particular case.
2. There are no surprises in the fee. Everyone knows what is expected of whom.
3. The client feels they are getting value for their money. The attorney knows the value the client places on their expertise.
4. The client sees the plan for the treatment of their case. The attorney develops the plan for the client's case early, before representation begins.
5. The client gets the best from the attorney because money is no longer a consideration.  The attorney can be as creative as they need to be without worry over cost to the client.
6. The client knows whether they can afford the attorney.  The attorney knows they're getting paid.
7. The representation begins with the client and attorney working as a team.  The client plays an active role and has a stake in the representation from the beginning.
8. It's the goal, not the fee that determines the cost.  It's the goal, not the fee that determines the cost.
9. The client doesn't have to worry about how much time the case takes. The case takes the time it takes.

Cons

1.   The client may lack the knowledge to adequately assess the value of the attorney's services.  The attorney may oversell the value of their services.
2. The client may not have sufficient sources of cash to pay the attorney.   The attorney may lose clients who don't have the money up front, but who could pay over time.
3. A fixed fee may be more expensive than an hourly rate, depending on the complexity of the case and the length of time to completion.  
4. The client may be too emotionally overwrought to decide whether a value-based fee is reasonable.  The attorney has to assess carefully the client's capacity to understand and make decisions.
5. The client can't hire the attorney or know the fee at the initial meeting. The attorney will have to put in significant time for no pay to decide the fee, with no guarantee they'll be hired.
6. Sometimes the lawyer may charge a wealthy client more than a client of more limited means for the same work.  

How Much Will My Divorce Cost? - Part 3 of 4 - Flat and Capped Fees

Not all attorneys charge strictly by the hour.  Some of them offer a flat or a capped fee.  What are they, and what are their Pros and Cons?

For purposes of this post, I'm going to define a flat fee as an all-inclusive, one-time fee that covers your case, soup to nuts, no matter the facts.  For example, some attorneys charge a flat fee for an uncontested divorce.  That fee covers preparation of the pleadings, necessary orders, and court appearance. If any other issues come up, say that the divorce isn't really uncontested, that is not covered, and many times the attorney defaults to an hourly rate.  Some attorneys charge a flat fee for a contested divorce, or for drafting a separation agreement.

A capped fee is when the attorney says that they will charge their hourly rate, but if the total bill reaches a certain dollar amount, they will stop charging.  So, if the attorney agrees to cap the bill at $20,000, once the hourly billings hit $20,000, the client doesn't owe any more money.

What are the pros and cons of each?

Flat Fee Pros

1. The client knows exactly how much they will be charged.  The attorney knows exactly how much to charge the client.
2. The client knows up front whether they can afford the attorney.  The attorney knows up front if the client can afford them.
3. The client pays up front and then they're done paying.   The attorney gets paid in full before starting work.
4. If the work is simple, then the fee represents the value of the work performed.  The work performed in a flat fee arrangement is usually work the attorney has done many times, so they aren't taking any risk and are probably making money.

Flat Fee Cons

1. The client doesn't always know what their case entails at the start of the representation.  The attorney may find there are unforeseen facts or circumstances that make a flat fee impossible or impracticable.
2. An unforeseen circumstance may cause the case to be more expensive than the flat fee.  The attorney may end up having an uncollectible fee if the cost exceeds the flat fee.
3. The client doesn't understand how the fee was set because it wasn't set with them in mind.  The attorney is resentful because the fee turned out to be too low for the amount of time and effort expended.
4. If the fee is set too low, the client may feel that the attorney isn't giving their case the attention it needs.  If the fee is set too low, the attorney may not give the case the attention it needs.
5. If the fee is set too high, the client may feel taken advantage.  If the fee is set too high, the attorney may gain a windfall.
6. The client and the attorney need to have a frank and detailed discussion about the scope of work, but they don't  The attorney and the client need to have a frank and detailed discussion about the scope of the work, but they don't.

Capped Fee Pros

1. The client knows the maximum amount they will be charged.  The attorney knows the maximum amount the case is worth.
2. Well, that's it for the pros.

Capped Fee Cons

1. This is the worst of all worlds, for both the client and the lawyer because it is essentially an hourly rate in which the lawyer simply doesn't get paid for their time if it exceeds the cap.  Why is this bad?
2. The client doesn't really get a windfall, because if the fees exceed the cap, there is a real risk the attorney may put the work on the back burner.  The attorney has no incentive to make that client a priority once they reach the cap.
3. There is no personalization of the fee to the client. There is no personalization of the fee to the client.
4. Just like hourly fees, there is no discussion about expectations and scope of work.  The attorney has no idea if they're making money, and in all likelihood, they are losing money.
5. Because the only upside of a capped fee is for the client, the attorney who offers this kind of fee is either a friend or a relative of the client, or really insecure about the reasonableness of their fee.  The client doesn't want an attorney who has no confidence in the reasonableness of their fee.

How Much Will My Divorce Cost? Part Two of Four - The Hourly Rate

Thanks for wading through Part One of this series.  Gird your loins for Part Two.

There are four main ways an attorney in the Trenches can bill for services:  hourly rate, flat fee, capped fee, fixed fee/value billing.  There are also combinations of the two, such as an hourly rate with some items charged as a flat fee, but we're not going to be talking about those.

Most clients who enter the Trenches hire an attorney and pay an hourly rate.  What that means is that the attorney charges for the time it takes them and their staff to complete a task.  It has the benefit to the client that they know how much the attorney charges per hour.  It has the benefit to the attorney that they know that everything that they do for the client it quantified.  Beyond that, what are the pros and cons of using an hourly rate here in the Trenches?

Pros

1. The client knows that every time they call the attorney, they are going to be charged. The attorney knows that the client knows that every time they call, they'll be charged, so they won't call too much and monopolize the attorney's time.
2. The client knows exactly what they are going to be charged for the time the attorney spends on their case.  The attorney knows how much to charge for every task. because it all gets charged the same.
3. The client just has to be concerned with paying the monthly bill for their attorney's fees.  The attorney can spread out receipts because they're based on time, not the case.
4. The client doesn't have to come up with a large sum of money up front.  The attorney can get a client signed up for not a lot of money, so more people will retain the attorney.
5. A more expensive attorney probably takes less time to do a task, so they're no more expensive than a cheaper attorney who takes longer. A more experienced attorney can charge a higher rate.
6. The client can determine what is and is not important to them based on the fee.  The client has no knowledge of what is appropriate to do or not to do and so a decision on process based on the hourly rate for the services may not be informed. 

Cons

1. The client knows that every time they call the attorney, they are going to be charged, so they don't call the attorney.  The attorney doesn't know vital information because the client didn't want to be charged to provide it.
2. The client has no ability to budget for legal fees because they vary based on the amount of work done.  Because the client has no ability to budget, the attorney may not get paid in full each month.
3. The client has no control over the amount of fees charged in a month. The attorney controls the amount of fees charged in a month by the amount of time they spend on a case.
4. The client doesn't want the attorney to pursue an issue because they don't have the money.  An attorney may limit the issues they pursue if they know the client has limited means (it shouldn't happen, but sometimes it does).
5. Every task is worth the same, no matter if it involves high skill and creativity, or simply churning out a form.  Every task is worth the same, no matter if it involves high skill and creativity or simply churning out a form.
6. Because a client is charged for time spent by the attorney, time spent waiting for a hearing, waiting for a judge, waiting for the other side in mediation, all increase the client's cost because they're being charged for the waiting. The attorney feels pressure to do work for other clients while waiting so they don't charge the client they're waiting for, and miss an opportunity to connect and learn more about the case. 
7. The attorney has no incentive to be efficient; being inefficient is more profitable.
8. The client is surprised by the amount of the fee.  The attorney spends years collecting the fee.
9. The client doesn't appreciate the value of the legal advice and expertise. The attorney doesn't appreciate the value of their legal advice and expertise.
10. The client may run out of money and have to enter into a settlement they don't want because they can't afford to keep negotiating.  The attorney may not have the money to explore all avenues of settlement. 

How Much Will My Divorce Cost? Part One of Four

The questions, "How Much Will it Cost,"  is the question most lawyers here in the Trenches dread.  The answer is usually, "It depends."  We know that's not what clients want to hear.  Heck, when I was a client, it wasn't what I wanted to hear.  It's also an unsatisfying answer for those of us here in the Trenches.  Let's do a deep dive.

You know that I was not only one who toils here in the Trenches, but I was also a client.  I hated being a client.  I hated my first attorney.  Why?  Two reasons.  First, that attorney didn't listen to me.  I knew my ex-husband better than anyone, and I knew how he would conduct himself.  My attorney wouldn't change the way they did things to match it.  They also gave me legal advice that I knew was wrong, (did I mention I'm a family law attorney?), but that's another story for another day.  I despised being treated as though I had nothing useful to add to the conversation and that my opinion didn't matter.  Second, I hated not knowing how much money I would have to pay my attorney each month.  If I were not a professional here in the Trenches, I wouldn't have known if they were over-charging me or if they were charging me for unnecessary things.  I knew, however, that I hated opening that monthly envelope with my bill and not knowing how much money I would have to gather to pay them.  I hated that it seemed that they were more interested in billing me that in helping me.  I hated that they were being rewarded for taking more time.

When I got to my second (and last) attorney, I had a very different experience.  First, I was treated as someone with helpful information to share.  Second, this attorney capped my bill.  He didn't quote me a flat fee, but he did tell me that once my bill reached a certain amount, that was it (Of course my bill reached that amount.).  I have to tell you, that knowledge made me relax because  I knew how much money I needed in order to complete my case.  I could plan ahead.  I could budget for it.  I could concentrate on worrying about the case itself instead of also fretting about paying my lawyer.

Here's the difference between me as a client and my clients.  I know how much legal representation can cost.  I know how expensive even a run of the mill contested case can be.  I chair the fee dispute committee of my local bar association.  I am the ultimate educated consumer of legal services.  Most of my clients are not.  Most of my clients have no clue as to how much legal representation can or should cost.  Most of my clients are uninformed about the process.  Most of my clients are too scared/angry/overwrought to think clearly, just as I was (which is why I stayed with the wrong attorney a billing cycle too long).  That means in any discussion about process or about fees, my clients are lost.  They have no benchmark - for anything.  It's no good telling them to ask lots of questions because they don't know what questions to ask and they don't know what's a good answer.  They don't know what's a reasonable fee.  It's sort of like when my grandpa used to go into the grocery store. He never did the grocery shopping, so every time he entered a store, he was shocked at how high the prices were because he had no frame of reference.  Everything was way too expensive for him.  Everything is far more expensive than a client thinks it's going to be when they set out to hire a lawyer.

I struggle with how to set a fee that's fair.  Right now, like almost every other lawyer I know, I charge by the hour.  It upsets me to do it.  Why?  Because it's not time I'm selling.  I am selling my expertise, my knowledge, and advice.  I'm giving the clients the benefit of my legal knowledge and my 30 years of experience.  The question should not be how long will it take me to resolve your issue, but how much it is worth to you to have it resolved in a way that is acceptable to you.  Unfortunately, the only way that conversation can be productive is if the client has a realistic view of the value of legal services, and most ordinary consumers do not.   They're like my grandpa in the grocery store.  So, rather than have an in-depth conversation on value, especially with overwrought people, most lawyers default to the hourly rate.  It's just easier - for all of us.  Or is it?  More to come.  Here in the Trenches.