Divorce Lawyer's Thanksgiving Top 10

Here are 10 things I'm thankful for in my domestic practice:

10. Every client who, in my early days, swept me summarily into his or her emotional state. I over-litigated those cases because I didn't want to disappoint my clients, but it was better to care too much and find the right degree of professional detachment than never to have cared at all.

9. The judges I can predict.

8. The judges I can't predict (for those times I know the predictable judges will rule against me!).

7. Mediators who don't waste their opening comments. Marshall Karro and Mark Riopel of Charlotte are my favorite examples. Though they have different styles, each has a knack of challenging the parties from the very beginning to raise the level of civility and objectivity in order to reach an agreement. It's really something to see.

6. My Mooresville High School Mock Trial team. I still impress judges with how well I know the rules of evidence. Every season I teach the basics to my students, and I end up re-teaching myself.

5. Parents who understand that children of divorce do just fine, IF Mom and Dad let them.

4. My iPad, for making it possible to draft orders anywhere, thus sparing the world my unintelligible scribblings on handwritten Memoradum of Judgment forms.

3. My paralegal Leona. She does all the dirty work from discovery, to drafting ED Affidavits, to talking  clients down from countless ledges when I'm not available.

2. My firm, Homesley & Wingo Law Group, for keeping the lights on and my Lexis subscription current. Having a solid infrastructure behind you makes a huge difference if you want to handle high-end cases.

1. Clients who are committed fighting for their future, not fighting over their past.

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House Money

Family law is a mixture of rules and loose principals. Some issues are largely governed by rules applied mechanically in the vast majority of cases (see e.g. child support). Others are left within the broad discretion of your presiding judge. Alimony is the classic example; I can usually tell my clients whether they are entitled to alimony but the amount and duration is impossible to predict accurately. Any attorney who tells you different is selling something.

Sometimes, not often, clients ask me why I don't take more aggressive bargaining positions on alimony at mediation. They take the simplistic view that starting higher gives us more room to negotiate, even if it requires making demands with no real legal or financial basis. A couple of reasons I don't do this:

1. It's a waste of time. Sometimes I'll throw an inflated offer at an inexperienced opposing attorney, but in most situations those ploys are easily sniffed out and swatted down. In fact, when I receive such an offer I take it as a sign the other side doesn't really want to settle, so my counteroffers get stingier in equal measure.
2. There are other issues. Lots of times, I get an unreasonable offer on one issue, but the other side tries to compensate by offering more value somewhere else (like the proposed property split). If my client gets incensed by the unreasonable part, I have to work hard to make sure he/she sees the while chess board.
3. It's your ass, not mine. This is a part of my personal settlement philosophy. A lawyer is like a gambler who always gets to play with house money. I have no problem being aggressive, and I love trying cases but its your life I'm playing with. I always feel better starting conservative then letting you, my client, decide how much risk you're comfortable with. I'll always support you and try to handicap the odds as best I can, but I will also insist that final decision be yours and yours alone.

 

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Baggage

     Relocation cases are always heart-wrenching.  In the 21st century moving across country, be it for love, work, or family is a routine occurrence.  When you share custody of your children, though, even routine tasks often become a Herculean struggle.

     I almost never handicap a custody case for my client.  As an attorney my stock-in-trade is reliably telling my client what's going to happen before it actually does.  What defines a child's "best interests" is an amorphous concept defined differently from judge to judge, so predicting the results of a child custody hearing in anything by the broadest terms puts me on the fast-track to losing credibility with my client.

     However, in situations where one parent wants to move to a new city, thereby disrupting an established custody routine, I can provide two general rules likely to hold true with any judge:

1.     Don't move unless you have to.  Judges disfavor relocation in all but the clearest cases.  Typically, the clearest cases involve financial circumstances that make relocating critical for the custodial parent.  Another non-economic example would be moving to be closer to a parent or close relative who is ill and in need of consistent care no one else can provide.  The common thread in these "clear-cut" cases? They are almost always driven by circumstances not of the relocating parent's creation.  If you fit in this category, you've got a reasonable chance to secure the judge's permission to move.

2.     You will probably have to "go negative."  Even if you have compelling reasons to move, that's only one of three critical pieces to your case.  The other two are: (1) showing how the move will benefit the children; and (2) showing how living primarily with the non-moving parent with not.  If the other parent already gets substantial time with the children, the judge will strongly consider leaving the children here in that parent's primary custody.  If the opposing party has problems with drug or alcohol abuse, or a recent history of criminal behavior, this isn't a big threat.  Then again, if those problems exist   what are the chances that parent is getting substantial time with the children under the current order?  Absent those built in arguments, you have to look at other factors making it unlikely the children will thrive in the other parent's custody.  Hectic work schedules and obligations with step children are frequent arguments used in such cases.

     Overall, relocation should be avoided at all reasonable costs.  Make sure and involve your attorney at an early stage, before you make any personal, professional, or financial commitments to the move.  If you find yourself in a situation where you have to move, your attorney should support you 100%.  Be wary, though, because you will be playing one of the highest stakes games you can play in the domestic legal arena.

Free Throws and the Science of Self-Deception

   Recently I had a client meeting that left me very frustrated.  The situation was not atypical.  My client was a well-educated, warm-natured lady - someone my wife would be friends with.  But the wages of a lengthy divorce had taken their toll and she was in the stage of coping that is marked by the need to assign blame.

   The ideas we met to discuss kept getting pushed aside in favor of my client bemoaning how her husband was always coming out of top; always one step ahead; always seemed to win.  If any of this were true, I would feel really embarrassed as a litigator.  It tried to persuade my client her perception was skewed by the emotional trauma of her breakup.  First I listed our accomplishments together, especially on custody which had resolved heavily in our favor.  Then I tried listing all the things she had going for her as a newly minted single woman.  

   Sometimes positive reinforcement works, but on that day my client was bound and determined to convince herself she would never win.  If the answer didn't involve her getting screwed, she changed the question.  

   That afternoon, I took my son to the park and was able to steal a few minutes shooting on the basketball court.  I stood at the free throw line and took 10 shots.  I only made 5.  Ouch.  But then I remembered that I shot 7 for 10 the last time Carter and I visited the park.  Put them together and POW! I'm a 60% shooter and don't have to feel like such a failure.  

   No sooner had I hit the "equals" button on my imaginary calculator than I realized I had found the perfect analogy for my client.  I have no idea how many free throw shots I have taken in my life and no clue what percentage have gone in, but I know that with a little manipulation of sample size I can make myself look much more accurate than I really am.

   That basically what my client is doing when she plays the blame game with her husband.  She restricts the sampling of events she chooses to dissect so she can conclude her husband is winning and thus justify her anger.  I'm sure it's just a coping mechanism, and it can probably be a healthy exercise sometimes.  But it's also a crutch and belies the good work she and I have done together.  We have another meeting coming up soon.  Maybe I'll have a chance to field test my "free throw" theorem and see if it strikes a chord.

Win Win

   I often tell clients when preparing for mediation that it's their best, only chance for a win-win outcome.  A lot of clients don't like mediation because they get pushed to make voluntary concessions to a person they (at least currently) can't stand.
   I like mediation because, by definition, if we reach settlement it's something my client can live with.  There is no "losing" at mediation; if you can't find common ground you just walk away.  In fact, walking away can be a show of strength, proving to your opponent you're willing to meet them in trial.  Often, you can settle a week after mediation for the same deal your opponent rejected before realizing the measure of your resolve.
   Court is a different animal.  You can have a winner and a loser, or you'll have two losers because the judge has his own idea of fairness that bears no relation to what either party expected.  Do the math: Husband wins/Wife loses; Husband loses/Wife wins; Husband and Wife both lose - you know going in that two of the three possible outcomes are bad.
   Selfishly, I like trying a case to it's natural conclusion.  I'm not playing with my life, I'm playing with yours, so for me the chance to showcase my skills is more thrilling than any trepidation I might feel over the outcome.  That's why I work extra hard to examine all the angles before I take a case to trial.  I want to feel absolutely confident when I put you on the stand that I'm doing it in your best interest.

Perspective

     For those who don't know, I coach the Mooresville High School Mock Trial Team.  Yesterday we capped off our 6th season with a tough loss in the North Carolina State Finals after winning the Charlotte regional last month. 
     First off, let me brag for just a moment on my amazing students, especially my seniors who have given so much of themselves over the past several years to help build our program into one of the best in the state.  When I was a teenager, I was an immense geek - heck I was a legendary intellectual snob at A.L. Brown back in the day - but I never would have put as much heart and as many man-hours into an extracurricular activity as these kids have given me.  Hats off!
     I always tell the team how much I learn from them in the process of teaching.  It's true.  Judges and lawyers, particularly in district court where all family cases are heard in North Carolina, don't spend much time arguing proper objections or practicing good cross examination.  In fact, most practitioners and jurists butcher both on a regular basis.  I credit mock trial with keeping me brushed up on those techniques.
     This year I got reminded of something else - the importance of appearances and perception.  Without pouring salt on a fresh wound, let's just say I took major exception to the behavior of one of the judges scoring my team this weekend in the round we lost.  Something completely cosmetic swayed her against us, something having nothing to do with our skills or our case but that cost us major points just the same.
     It was a tough loss, but it reminded me how lawyers and laypeople look at things differently.  I believe judges ignore 75% of the things juries focus on.  Non-verbal cues, appearance, anecdotal clues to a witness's personal background, etc.  A judge looks for the legal problem so he or she can apply the prescribed remedy.  Juries, on the other hand, have a funny way of deciding for themselves what their job should be.
     The lesson for me this weekend is to remember my audience.  I should always spend some time imaging what the decision-maker will think of my case, not just what I think of it.  The lesson for you, my Someday Client, is to trust me when I tell you that win or lose I will have done everything I can under the law to help your cause.
      P.S. - For those who might be interested in our Mock Trial Program, please take the time to like us at www.facebook.com/MHSMockTrial

The Paralysis of Perfection

    I envisioned opening this post with a play on the title.  Something clever that intimated my "perfection" as a litigator.  Ultimately, I decided to play it straight lest you, my Constant Readers, fail to grasp the sarcasm.

    Perfection Paralysis is a term I first heard from a client a few months ago.  She won't mind me telling you she gets flustered when too many items get heaped on her plate.  The idea is you can juggle a few discrete tasks, but when your To Do list piles up beyond what you can comfortably manage it becomes impossible to focus.  You can't handle everything, so you handle nothing.

    Unfortunately, divorce cases come in waves.  Pleadings beget discovery.  Discovery begets depositions.  Depositions beget hearings.  Hearings beget hurt feelings and handsome attorney bills (hopefully I'm inflicting the former and collecting the latter).  If you're uncomfortable keeping multiple balls in the air, this is a taxing process.

    The best advice I can offer is to think of your divorce like a part-time job.  Give yourself permission to punch the time clock, both on and off.  I'll find plenty of work for you when it's time to work.  You be sure to find something to fill the rest.

     In the interest of full disclosure, I'm something of a paralytic, too.  My business has been picking up for a while, but in the last three months the levies have burst.  It's exhilarating mostly, but occasionally I find myself staring at the files on my desk and realize I haven't picked one up at least 15 minutes.  I'm sure my mind has been engaged the whole time, but I just don't have anything to show for it.  Not to worry, I don't bill you for that time!