Fourth Down

First, a little mea culpa.

In my last post, I bragged about how close I was to getting my own, self hosted website online. That site will become the new home of this blog. The plan has not changed, but let's be real here for a minute… My timeline was pure folly. It was a mirage. It was the quixotic impulse of an over-eager legal imagination to think I could juggle my caseload and summit those last few IT mountains so quickly. 

I will say that nirvana is tantalizingly close. I have to edit a few more pages and imbed some cool functions I have yet to master, but the website will be up soon. For now though, here are some thoughts on a recurring conundrum family lawyers face.

There is an inevitable intersection between family law and criminal law. Eventually, you will have clients who either commit criminal acts or get wrongfully accused of them. In those cases, some family law attorneys decline to enter criminal court, compelling their clients to retain a separate criminal attorney. The charge could be simple assault, assault on a female, communicating threats, or one of a dozen other charges endemic to toxic family conflicts.

As for myself, I have always tried to remain a general practitioner at heart, and that means rolling up my sleeves in criminal court on a regular basis. Either way, family lawyers of all stripes sometimes find themselves in the position of putting their clients on the stand in situations where they may have to either admit criminal wrongdoing or plead the Fifth Amendment and decline to answer questions.

Something important to understand if you are involved in a family law case is that yours is a civil matter. The Fifth Amendment privilege does not always apply, and the presiding judge has the authority to compel you to answer questions or hold you in contempt if you refuse, even if the answer implicates you in a criminal act.

One example that comes up often is adultery, which is still a crime on the books in North Carolina. In over 10 years of legal practice I have yet to see a prosecution for adultery by any district attorney. This is a good example of an instance where a judge my compel you to talk even if you want to assert your Fifth Amendment privilege.

There are also times when more serious crimes like assault or illegal firearm possession come into play. A witness may be allowed to take the Fifth, but of course the judge is entitled to make assumptions about what the testimony would have been.

The decision lawyers face is whether to tell the client to plead the Fifth, or go ahead and answer the question. I have no data to back this up, but I would expect the large majority of family lawyers would tell their client to keep quiet. While sometimes I agree, I prefer to evaluate each case on its merits. Practicing criminal law on a regular basis, I know the odds you will face arrest for admitting to a low level misdemeanor made while testifying in civil court are low. Often, the judge is not interested in having you charged with a crime, the judge is interested in resolving the domestic issues in front of him or her.

It occurred to me recently that the decision to plead the Fifth is very much like the decision NFL coaches face when deciding to go for it on fourth down. The statistics would tell you to be bold and go for it (i.e. answer the question) a lot more often then what you see happen in actual practice.  Maybe it's because this is one of those situations where you as the coach/lawyer make the call... the consequences could be disastrous or highly profitable, and in those moments a lot of people become risk-averse.

Your Long National Nightmare is Almost Over...

My Dear Devoted Readers,

Happy New Year!!

I'm sure many of you have been waiting with baited breath for a new post, and I apologize for the extended silence.  Rest assured the wait is almost over.   For the past several months I've been experimenting with building my own website using Wordpress.org, and I'm happy to announce that after much trial and error I'm confident it will be a success!

I'm still hedging my bet a little with this announcement.  I've managed to migrate all my old posts to the new site, but there is still a lot of formatting to do, photo/video content to add, and at some point I have to actually figure out how to publish new posts.  It's probably just a vestigial, 20th Century fear of technology, but I'm going to take just a bit more time until I'm sure the final product is ready for all of you to enjoy. 

To that end, I'm throwing down the gauntlet a bit and committing to have the new site up and running by February 1, 2016.  I'll make a final post on this platform with all the relevant details as soon as it's ready.  Until then, I want everyone out there to have a safe, healthy, and happy 2016!

It all makes for great drama.

Doctors and lawyers are linked in the public mind. All you have to do is scan the broadcast TV landscape to see connection. For 50 years, not a week went by without both a medical and a legal dramas playing out in prime time. Why?

My theory is that both doctors and lawyers have professional lives that lend themselves to TV storytelling. I don't mean there's any inherent glamour in what we do, it's just that doctors have an endless supply of patients and lawyers an endless supply of clients, so our lives have both episode-length story arcs (cases/patients) and long term narratives revolving around the doctors/lawyers' lives themselves.

Anyway, I got to thinking about this after representing a doctor recently. It sparked the idea to write a post comparing lawyers to surgeons, but the more I thought about it the less perfect the comparison was, especially for family law.

Sure, you could say some of the issues family lawyers handle are comparable to surgical procedures - we intervene in an ongoing life and try to correct some problem that we find there, often using creative techniques that may be aggressive or very measured depending on the needs of the patient/client. 

It's more problematic when you start talking about outcomes and goals. For some legal issues, you can continue the surgical comparison. For example, if you and your spouse are both unhappy but both unwilling to leave the marital home, getting possession of the home is a finite goal I can try to achieve for you. There can be complications, delays, and sadly sometimes bad outcomes, but the goal is clearly defined.

The same comparison is harder to make with child custody disputes. Custody cases never really "end," at least not until the child turns 18, and even then there can be issues of unpaid child support that linger for months or years. Ideally, parents are able to come up with a custody agreement that is built to last and doesn't require constant battles over modification or contempt, but let's face reality - if all divorced parents could get along they wouldn't be divorced and I likely wouldn't be employed!

When choosing your domestic attorney, if you have kids I cannot urge you enough to think long-term and be ready to have a broad ranging discussion about where you see your life and your children's lives going through the rest of their childhood. 

For example, a few years ago I helped a man secure a 50-50 custody schedule with his child, even though he was sure the child's mother was bringing her new boyfriend around and probably creating an unhealthy environment. Mother did not have any "red flags" like drug addiction or mental illness, and she had arguably spent more time as the primary caregiver during the marriage. My client's concerns were real, and there was evidence that mother wasn't all that interested in being a full-time parent anymore, but those were speculations on our part. I urged my client to think about where this case would be in another year or so. Did he really think his wife would stay put? Did he really think she would put the child first? Did he trust that his child, who was already a preteen, wouldn't recognize who is really putting her first and start to gravitate toward him?

My client didn't like it, but he went with the deal on the table. Not long ago, I finished drafting a consent order modifying the original deal and giving my client primary custody because his ex-wife is relocating out-of-state.

That's a great story and I'm proud to shave helped my client but it kind of screws with my surgical analogy.

In thinking about these things, I decided that sometimes lawyers are less like surgeons and more like chiropractors. We fight against the inevitable forces of gravity and time. When things get so out of whack you can't function, we do our best to adjust you, get you feeling right again, but then send you back out into the fray.

This post turned out much more "meta-" than my usual offerings, but sometimes that's a good thing I guess. Clients often feel like the big picture gets lost in all the legal maneuvering, so sometimes a little "big picture think" is in order.  Long story short, be open minded. Sometimes you need me to be surgical. Direct, uncompromising, goal-oriented.  Sometimes you need me to be the chiropractor - there is no permanent fix but please do something to make the pain stop!

What Lawyers Can Learn From Watching $25,000 Pyramid

Every year I reserve one post to praise my students on the Mooresville HighSchool  mock trial team for all their hard work and the grit competing in what I find the most rewarding high school competition around.

While my team did not make state finals this year, they were one of the closest, hardest working teams I have ever had.

If there is one skill that all mock trial students, and a fair number of actual attorneys could use improvement on it is 

the art of direct examination. When you question your own witness, the witness is supposed to be the star. He or she tells a story and you just moderate. 

It might be just that simple if 90% of people didn't lose their ever loving mind the minute they take the stand! It's understandable I guess. Just imagine being thrust into an extemporaneous speaking contest where first prize is everything you want in life, and second prize is a condolence card and a $20,000 attorney bill. I'm exaggerating, of course, but I've come to believe that is the magnitude of stress people sometimes feel when taking the stand.

Hence, my simple role as moderator inevitably becomes the conversational equivalent of that old boardgame "Operation," where you try to reach your target by threading a tiny pair of tweezers through and even tinier, oddly shaped hole without touching the electrified perimeter. 

In this case, my perimeter is the rules of evidence, which force me to ask only open ended, non-leading questions that do not suggest their own answer in form or content.

That's where Pyramid comes in. For those of you old enough to remember, the game is played by two-member teams; one player can see the answer (usually some category of persons, places, or things) and has to come up with words or phrases that will prompt the other player to correctly guess the answer.

So, for example, if the answer is "Things Richard Nixon might say," a good clue might be "I'm not a crook!"

The trick is describing the secret answer in the clearest, most succinct  way without actually repeating any of its key terms. 

On $25,000 Pyramid, one player was always a celebrity guest, and some of them took the game quite seriously.

The greatest of these in my humble opinion was Dick Cavett. For those who may not remember, Dick Cavett hosted a late night talkshow in the 1970s and had bit parts in film and TV over the years. He has a dry, professorial affect to his speaking voice. Something about it makes it impossible not to absorb each syllable that he utters. 

If the category was, "things that are poisoned," he would immediately say, "Snow White's Apple." Whereas it took me 15 staring at my keyboard to think of that one on my own!

Just as an exercise, try having a conversation sometime with an old friend where you try and get them to tell you a story you've heard many times before, only you can't tell them what story you want to hear - you have to prompt them using only questions that begin with, "who, when, what, why, and how." You'll probably find it a huge pain in the ass, which is why you should just hire me to do it for you!

Tis the (Bonus) Season

Well, the Holiday season is upon us, and I'm pleased to report everyone is recovering nicely from their tryptophan overdose at my house! After years of haggling, my wife and I have finally settled on a fairly comfortable routine for scheduling which days/times to spend with which branches of our family each year. That's one of the great, unheralded achievements family life - no one tells you about it when you're starting your family, but when you get it right it can make your day like indoor plumbing!

Okay, end of cold open. Today's topic was inspired by that most Griswoldian of holiday traditions-the Christmas bonus. Did you know that income earned from labor performed or services rendered before your date of separation is marital property, even if it's received months or years after you separate?

If you are facing separation, and either you or your spouse has a job that incorporates periodic bonuses, commissions, or other variable compensation plans with lengthy periods between payouts, it can greatly affect strategic planning for your property division case.

An extreme example would be the successful small business owner who sells his marital business and moves to another. The purchaser often agrees to pay large chunks of the purchase price over a period of years after the sale because the money has to be generated from ongoing operations. This leads to all sorts of interesting questions: do you treat the expected future payments the same as you treat cash or property presently held when dividing the  marital estate? If not, do you discount it so that a clean division can be achieved now, or do you divide those dollars separately if and when received it so that both parties share the risk that you will encounter collection problems in the future?

Bonuses and commissions usually don't present collectibility problems, but they do present other valuation issues. Let's take the humble Christmas bonus. If you separate from your spouse in March and later receive a Christmas bonus of $10,000 in mid December, how much of it is marital and subject to division as part of the marital estate? Is it like an annual bonus for work performed throughout the year? Is the amount of the bonus performance or seniority-based? Depending on your employers policy, the answers may change. The most likely result is that a judge would try to determine the period of employment from which the bonus is derived and prorated based on how much accrued prior to separation.

Either way, if you find yourself in the situation be sure to discuss it with me, or whatever fabulous attorney you retain, so you don't end up feeling Scrooged later. Happy holidays everyone!

The contract just won't die...

First, let me apologize for the extended delay in between posts, which come to think of it has become an all too frequent refrain on this blog. So many of you wonderful folks keep hiring me that it's getting harder to find time for new posts.

I'm not complaining mind you, but it got me thinking about movie franchises that I love and how sequels that come out many years after a beloved original can crumble under unrealistic expectations. Some sequels try to cram in every possible bit of ambition and spectacle, only to collapse under the weight of their own gilded adornment (I'm looking at you, Episode I: The Phantom Menace!).

So, after a summer long layoff I have decided to tack in the opposite direction and keep today's post confined to a narrow and decidedly wonkish topic - the survival of contract damage claims after the entry of a child support order overriding a separation agreement.

Here's your 30 second primer: since the taxpayers of North Carolina ultimately have to support a child whose parents don't provide enough support themselves, any private agreement for the Child Support is subject to review by a judge. If you elect to agree to Child Support in a private contract, and either party later decides to file a traditional Child Support claim with the court, your agreement is presumed reasonable but that presumption can be rebutted fairly easily if The agreed-upon support amount substantially differs from what the stay child support guidelines would otherwise dictate.

I have a whole spiel prepared to warn clients about this possibility every time this issue comes up. Still, lots of people would rather handle all of their issues, from alimony to property to Child Support in a private agreement and not open up a court file on the public record. I can respect that, and luckily if your ex husband or wife starts to feel that he/she was overly generous in your settlement and needs to reduce his/her Child Support, there is still a remedy available to you.

Your contract for Child Support remains enforceable even after a judge has decided the statutory child support amount should be lower. You can be awarded a money judgment for the difference, and if you've ever had an aggressive creditor get a judgment against you, you know that it's about as much fun as a root canal.

Though I am a board-certified specialist in family law, I keep a diversified practice that includes lots of civil litigation. Some of the most "fun" I get to have involves seizing and selling a judgment debtors property long after he thinks we're no longer looking.

If you find yourself on either end of the situation, feel free to give me a call and let's figure out what we can do to make sure all of your options are laid out on the table.

Tell Me This Isn't a Government Operation...

Each year, I spend the first weekend in May at a seminar hosted by the North Carolina Bar Association's Family Law Section. This year, the event was held in downtown Charleston, one of my very favorite places in the world and the best place EVER for a guided, history-themed pub crawl!

The seminar is usually good for at least 6 hours of continuing legal education credit, and invariably I learn some new nugget of information that helps me with in a pending case.

This year, my favorite presentation was not from a family law attorney but a school board attorney representing one of the largest public school districts in North Carolina.

She was there to offer insights on how schools interpret the custody orders we domestic attorneys work so hard to craft. The takeaway for me was that family lawyers in general (myself included) don't give schools enough thought when structuring settlements, but we should.  Clients tend to assume that the court system, the justice system, the social service system, and the educational system are all part of the same monolithic bureaucracy in which the right tentacle knows what the four tentacles to it's left are up to.  Nothing could be further from the truth!

I encounter school issues in my custody cases all the time - private vs. public; your preferred school vs. mine; how often can dad drop by to have lunch with the child?  Does the child's teacher need to schedule one parent/teacher conference or two?  Unfortunately, those questions tend to get crowded out by arguments over custodial time and child support.

Another thing attorneys overlook is the fact that schools are independent, semi-autonomous legal entities that generally don't care how the domestic system works; they need custody orders to work with in their structure.

For example, it's routine for parties to a consent custody order to agree that their child will attend a particular school. However, did you know that by statute a District Court judge in family court has no authority to assign your child to any particular school? That authority belongs to the local school district in which the child is enrolled. Therefore, if you have a shared physical custody schedule and the parents live in different school assignment zones, you should check with the school system before you have a judge sign your consent order if school assignment is an important issue in your case.

Another surprise was how desperately school administrators want family lawyers to give them clear, informed guidance in the written custody order, so principals, guidance counselors, and teachers will know to address the conflicts between separated parents that inevitably arise.  I hope the next time I mediate a case involving custody of a school-age child I can resist the urge to pat myself on the back and consider the job done once the parent's basic schedule is in place, because in truth there may be important work left undone.