Run Like Hell

The holidays are a bit of a dead period in terms of new clients. Sometimes an acute situation drives people to separate around the holidays, but people who have been thinking about leaving for a while generally hold out so as not to ruin the holidays for their families. As a corollary, January and February are usually busy for me as those same people trickle into my office. In other cases, people wrestle with the decision for years before getting up the nerve to talk to an attorney.

I'm always interested to learn what leads to a client's first visit, especially the ones still struggling with the decision to separate. It's frustrating because I want to help every client I see, but that first and most critical decision - whether to separate - is a personal decision, not a legal one, so I spend most of my time in those consultations pretending I'm a therapist, not a lawyer.

If you are one of these Hamlet-onian individuals standing paralyzed between an unhappy marriage on one side, and the prospect of a bitter divorce on the other, I invite you to join me in an experiment. Go to iTunes (or the legal music downloading service of your choice!), and purchase the latest album from The Airborne Toxic Event called "All At Once."

First off, if you are unfamiliar with Airborne Toxic, you're welcome! :-)

Now for the experiment. Put on your jogging shoes and head for your favorite treadmill, elliptical, or (if you're like me) empty industrial park. Whatever your normal running distance may be, add an extra 5 minutes so you're sure to reach that point where you have to rely on attitude and a kick-ass running song to get you through. As soon you feel yourself reach that point, cue up the title track on your new favorite album, "All At Once." It's a great song with a straight, galloping rhythm, but more importantly the lyrics are a piercing, perfectly drawn ode to the brevity of life.

Right as the song hits the bridge your legs will involuntarily kick into another gear you didn't know you had. You realize that today, and every day, we are all running like hell from our own mortality and that the only real satisfaction we ever get is in that escape.

Now, right as you feel yourself getting lightheaded, but before you let off on the throttle, ask yourself one question: If you're running like hell away from death, what are you running toward? If your husband or wife is part of the image that comes to mind, you're good. If it's anything else, it's time that you and I had a talk.

Techno Groove

I am writing this post on my brand new bluetooth keyboard, paired with my brand new Ipad 2. I just got them paired, and my next trick will be unpairing my bluetooth earpiece from my Macbook so I can mated with the Ipad. The earpiece has a two pairing limit, and the other free channel is already taken by my Android smartphone. All this should be less trouble than figuring out how to use Dropbox on all my various devices.

Why the techie talk? I'm not trying to brag about how tech-savvy I am, or how many toys I have. It just occurs to me how vastly different my daily routine has become in a few short years.

I grew up with an Atari. I thought I was hot stuff with a Commodore 64. My first laptop was a Toshiba; I could stack five Ipads front to back and they would still be thinner than that mammoth.

The practice of law is at the vanguard of the changes brought about by these remarkable devices that populate our lives these days. If your domestic attorney is embracing new technologies, you should be encouraged. Adapting to incorporate new tools and ideas is not a universal quality of legal professionals, unfortunately.

For example, I have started bringing my laptop/Ipad to every hearing and mediation. Traditionally when attorneys settle a case in court they hand write a "Memorandum of Judgment" setting forth the basic terms of the agreement. The judge signs it, and it has the force of law, but one of the attorneys still has to type a formal order, adding in any appropriate boilerplate and verbiage for the issues resolved.

You can imagine the havoc this wreaks. One lawyer's boilerplate is another lawyer's substantive change, and the client ends up paying another four hours in legal fees before getting the benefit of a deal they already made. My goal is to always have a device on-hand stocked with templates I can use to create a final settlement document the first time. My impression is that other lawyers and judges appreciate this practice. Last week for instance, I kept both parties, opposing counsel, and a mediator at my office for an extra hour while we reviewed and revised a final separation agreement and custody order. My client asked why the other side wasn't bitching about the extra time I was taken (like he was). The answer was simple - we didn't finalize documents on a case settled in mediation last month, and we were STILL haggling over the final language. I got out of the office at 7:30 that night, but with a much happier client.

The Only Rule is... There are NO Rules!

They say the States are the laboratories of American democracy. If that's true, then domestic violence court (a/k/a "50B court" or "DVO court" if you're in the know) is the laboratory of divorce law. I can't tell you how many divorces get settled quick and dirty under the pressure of a pending domestic violence trial, circumventing the normal family law process with often unpredictable results.

Sometimes people need a domestic violence protective order. There's no debating that point. A special dynamic exists between people in a romantic or familial relationship, which breeds a special kind of violence when things go bad. The DVO statute is meant to offer special protection to victims of such violence. Often, though, DVO litigants are just as interested in their marital claims as they are in the outcome of their DVO case.

Some attorneys object to settling custody, alimony, or property issues using a DVO claim as leverage. It bastardizes the purpose of the statute, which (the argument goes) is strictly tailored to protect victims of domestic violence, nothing more.

Hogwash. If that's how you feel, God bless you - go work at legal aid where the taxpayers paying your salary don't let you negotiate anything outside the 50B complaint. My clients pay my salary, and they expect me to worry about the things important to them. They expect me to use the laws, not proselytize about them. Don't get me wrong, I have those conversations with clients all the time. But when I do it's because I don't think we can use the law in a particular way, not because I don't think we're supposed to.

I am often retained by clients after they have taken out a DVO complaint against their spouse or significant other. Sometimes, the opposing side is willing to negotiate a favorable settlement of divorce issues in exchange for a dismissal of the DVO charge. Recently, an attorney representing the DVO defendant took a hardline stance with me, insisting that his client would not "negotiate with a gun to his head." He wanted the DVO dismissed before we settled other matters.

I admired his moxie, but even he understood his position was untenable. Victims of domestic violence are also husbands, wives, mothers, and fathers. So are the perpetrators. They don't put on different hats depending on which courtroom they're sitting in. They also don't have the time or money to draw neat intellectual lines between the need to feel safe and the need to know how they will pay for groceries next week. I explain this to my own clients all the time, especially when I represent the party accused of domestic violence.

What this attorney was really saying was that he liked his chances of winning the DVO case and didn't intend on pushing his client to accept a less favorable custody or child support arrangement in exchange for my client dismissing the DVO. All I can say is, I hope he feels the same way when I'm done cross-examining his client!

Client Meeting Haiku

I say, "A or B"

Your response is, "I agree!"

My toil continues...

What Happens in Vegas… Happens Because You Went to Vegas!

Several years ago, a client and I were sitting outside the courthouse in Statesville discussing strategy for a custody hearing. We had to overcome some negative facts, including an altercation he had with his ex-wife in the parking lot of his son’s school. My client lost his temper and kicked a dent into the door of his ex-wife’s car in front of his son. Those were the undisputed facts, but my client steadfastly refused to take any measure of responsibility for his behavior.

Actually, that’s not a fair characterization. He admitted it was wrong to kick the car, but he insisted she was the instigator – that she goaded him beyond the limits of human tolerance, thus excusing his outburst.

This college graduate and accomplished businessman was utterly convinced his testimony about that day’s events would illustrate perfectly for the judge the type of devious torments he’d endured through 20 years of marriage, thereby clearing the path for him to be granted primary custody of his two kids.

Let me be clear. This man was a good father. He was kind, attentive, engaged, and 100% invested in his children’s futures. Trouble was, so was his wife.

Neither parent had any criminal record, no history of mental illness – nothing objective that might concern a judge about putting a child in his or her care, except this outburst by my client. Unfortunately for our case, my client’s wife had only worked part-time for the last 9 years and was clearly the primary caretaker for the children during that time. His odds of achieving primary custody were slim.

My client didn’t see it that way. He had bastardized the history of his marriage in his mind, morphing it into a complex mythology in which his wife was his constant tormentor, he the hapless victim.

Case in point – to convince me his criminal defacement of his wife’s car door was, in fact, the smoking gun that would win his custody case, he printed out a Google Earth map of the parking lot zoomed in tight enough to single out the parking space where it happened. The map showed the position of his car in red marker, several other parked cars in blue, and then his ex-wife’s car in green positioned so that it partially blocked the exit.

It was true the parking lot was crowded, and it was true we couldn’t prove that his ex-wife even knew he was there when she parked there. But none of that mattered because according to my client his ex-wife “knew that his car has a low clearance and knew parking where she did would force to jump the curb to get out.”

If this argument doesn’t sound farcical to you, you must already be one of my clients. Stop reading right now and fill out the paperwork I’ve been hounding you about for the last two weeks! Just kidding, I love you all and appreciate that new retainer you are about to bring me.

Now, back to my story. Client management is all about finding the right explanations for your client. In this case, the analogy I came up with to explain how my client’s expectations were skewed was this: Imagine you’re in Las Vegas with a friend. You’ve spent the night gambling and drinking and just realized that next month’s mortgage payment is now winding its way through the counting rooms of Caesar’s, Harrah’s and the Wynn. Is it your fault for gambling? Or is it your friend’s fault for agreeing to drive the car to Vegas?

Regardless of what role other people play in bringing you to the precipice of a bad decision, only you can decide to act poorly. No forces you to make a wrong choice. My client had to come to grips with this principal that day in court. The judge allowed the opposing attorney and I to preview the evidence for her in chambers, gave us a strong indication of her likely ruling, and my client (to his credit) was able to negotiate a fair custody schedule for himself without putting his son on the witness stand. It wasn’t what he hoped for, but it was a lesson well learned. That’s what you get for waking up in Vegas.

The Tao of Avoiding Credit Card Debt in Your Marriage

I was sitting in a mediation recently (hour 6 of a 10-hour marathon) when my client hit what runners affectionately refer to as "the wall." Her ex-husband had just countered our last offer with a low-ball alimony figure. We'd waited almost 75 minutes for the mediator to bring us a legitimate offer, and when his proposal didn't measure up my normally warmhearted and gracious client lost her sh%#! She beat the table. She cursed. She questioned the mediators professional commitment. She questioned her ex-husband's parentage.

My client went on like that for over 10 minutes. I didn't make any move to stop her. If nothing else, her ex-husband was going know the full weight of her displeasure when the mediator stepped back across the hall (after a stop in the washroom to re-apply his deodorant).

When the mediator left, I spent about 20 minutes talking my client down from the ledge. After a while, we were laughing about her outburst. I had to remind her that no one would be forcing her to settle unless she was certain it was the right choice. I also reminded her that she had been unfaithful several years ago, that she later admitted the affair, and that her alimony claim was on somewhat shaky ground.

The problem was whether we could prove her husband "condoned" the adultery. In alimony cases there is something called "condonation," which is when the aggrieved spouse forgives the cheating spouse on the condition that it not happen again. Sometimes, it's as hard to prove condonation as it is to prove adultery in the first place. There are disputes over what the innocent spouse knew, when he/she knew it, and whether the forgiveness was affirmatively communicated, or, uh, consummated by both parties.

In this case, my client had a strong case for condonation, but not airtight. In any good mediated settlement both parties have to give up enough to expose the other side to some risk if they walk away. To rationalize accepting a compromise that I knew was in her best interest, I told my client her affair was like running up a $1000 balance on a high-interest credit card, then ignoring the monthly statements for the next five years. By not telling her husband sooner and dealing the problem, she compounded it, just like accruing interest.

I had never used that analogy before with my clients, but since that mediation I've been trying it out in other contexts and I'm convinced it applies to many common problems surrounding the end of a marriage. If your spouse disciplines your child in a way you find inappropriate, deal with it now. Don't wait to mention it in my office five years down the line as a reason you should be granted primary custody, when you've accepted it for years. If your marriage is unhappy, either invest your energy in making it happy or get out. You think my rates are high? (totally worth it, btw!) The interest rate you pay for ignoring such problems is downright usurious.