Opposing Counsel

It’s a club, and we all know it.  We’re joined together through a common work life that can be difficult, emotionally intense, sometimes exhilarating, and sometimes thankless. I’m talking about my colleagues, my fellow members of the family law bar.  I’ve been practicing in the same community for a long time.  I have relationships with lawyers I’ve faced as opponents over and over again - we have a shared history.  The fact of our lives as lawyers is that clients come and go, but our relationships with each other can endure for decades.

Some clients find this confusing and upsetting.  They don’t understand how I can zealously advocate for them against someone I have a long-standing professional friendship with.  They assume this will compromise my representation; that I need to dislike opposing counsel as much as they dislike their ex in order to be a “pit bull” (remember when the animal metaphor of choice was “shark”?  So 2000.) 

These clients would be completely wrong.  Having a lawyer on the other side of a case that I know, trust and respect, and who feels the same about me, makes it way easier to resolve the case.  I have credibility with that lawyer - when I argue forcefully that I expect to do better in court than what he’s offering me, and explain why, that lawyer is likely to pay attention.  When that lawyer explains his position to me on a point of law we disagree about, I can imagine how he would argue the issue to a judge, how effective he’ll be when he does it, and take that into account in doing the delicate calculation about whether to recommend settlement vs. trial.  The benefit to my client is that the case is more likely to settle, and to settle better.

But, my client might ask (and some have), how can you go into court, pour your heart into arguing passionately with opposing counsel about every point of evidence, decimate her client on cross examination, and then leave the courtroom and start chatting about where her oldest just got into college and where she’s going on her next vacation?  Because court is, at some level, theater.  There’s a reason we put the judge in a black robe and the lawyers in suits (costumes) and have the lawyers stand in assigned places, rise to address the judge, and follow specific, formal protocols (stage directions).  We are playing roles. Which does not mean we’re playing games. Or that we don’t care deeply about our clients and the outcome of their cases. These are extremely serious and important roles - they have evolved over centuries as an organized and effective way to resolve disputes - but they are roles, nonetheless. 

When we leave the courtroom, we shed the role.  Or we should.  Some lawyers, usually less experienced ones, are unable to, and can be very hostile to opposing counsel.  This makes them not only unpleasant and difficult to deal with but, ultimately, less effective advocates.  If they’ve crossed the line to the point where they are pursuing a personal vendetta, their ability to clearly and dispassionately assess what’s best for their clients is compromised.

And then there’s the fact that if we internalized our clients’ personal battles to the extent that they spill over into our interactions with opposing counsel, we’d burn out in a heartbeat.  Civility and calm is sorely needed in this field, and if our clients can’t manage it with their spouses, the least we lawyers can do to dial down the heat is to practice it, daily, with one another. 

Fear

Sometimes I get a chance to walk in my client’s shoes, just for a moment.  It can be very sobering.  Like today, when my client’s ex-husband started screaming at me when I was attempting to get into the courthouse and then continued to verbally attack and mock me in the court waiting room after I met up with her.  I could feel my normally talkative and vivacious client shut down.  She got quiet and still.  She looked shaken, yet resigned; I could tell she had experienced this, and probably much worse, many times before. She apologized for his behavior. “I just hope he doesn’t kill me,” she said with a half smile - but we both knew it wasn’t funny.  She told me he hates women.  She told me he didn’t used to be so bad but the kernel of this was always there.  And I was shaken too - it’s scary to feel someone’s hatred directed at you like a laser, to feel that another person truly wishes you harm.  Later, while we were in the hallway waiting to go downstairs, he taunted us about not wanting to get in the elevator car with him, until the court officer told him he had to leave or he would call the sheriff.  “See you next month, girls!” he shouted as he finally stepped into an elevator car, alone. 

We took the next elevator down together, my client and I.  We scanned the lobby for him when we got out. I left the building first to make sure he wasn’t waiting there.  If he couldn’t control his rage in a courthouse filled with armed sheriffs, what might he do out on the street?

I have been representing victims of domestic violence for decades.  But the anger is not usually directed at me.  Typically, men whom my clients describe as abusive are subdued in court, sometimes even polite and charming.  It makes the violence more of an academic matter - I believe what my clients tell me but I don’t feel it. I don’t experience what I did today: the tightening in my stomach, the quickening of my breath, the feeling that I’m not in control and don’t know what’s going to happen next. Even the guy, fifteen years ago, who ultimately murdered a lovely young woman I represented, was calm, even friendly, when I encountered him in court.  We were there getting a protection order.  He agreed to the order being entered by the judge.  He smiled at me and shook my hand before he left the court house.  And two days later, while I was home with my kids, not giving him or my client a second thought, he ambushed her and her mother and stabbed them both to death.  My grief and rage came the next day, when I heard the news.  And I still have those feelings, all these years later. But those emotions, while way deeper, are different. I never tasted the fear myself. I was a close bystander, but I wasn’t caught in the storm.

What happened in court this morning was a powerful reminder.  Many things are beyond our control, lawyer and client alike.  And it’s a scary world out there.

Money Talks

If you’re interested in knowing how much money people make and how they spend it, you’d love my job. I’m an expert on what people in different professions earn, and I have an easy familiarity with the borrowing and spending habits of my fellow Greater-Philadelphia-Metropolitan-Area dwellers of every socio-economic stripe.  Within ten minutes of meeting with a new client I know how much he and his wife earn; by the end of the consultation I know how much they spend or save, whether they pool their money or keep it separate, how much debt they have, and whether these very subjects are related to the reason they are getting divorced.

Isn’t it interesting how taboo these subjects still are?  I don’t know how much my closest friends earn, how much they have saved, or what balances, if any, they carry on their credit cards.  And I would never ask.  In contemporary American society, we continue to abide by a widely accepted social norm that this information is private. Surprising, given the almost complete disintegration of barriers which previously prevented people from talking about sex and intimate relationships. People think nothing of walking down a crowded sidewalk talking into their cell phones about the graphic details of a sexual encounter or a medical condition, but did you ever hear someone talking on a cell phone in a public place about the amount of the bonus she just got?  I haven’t. 

I actually think it’s a big relief to my clients to be able to discuss the particulars of their financial circumstances with me, and to express their fears.  There are lots of people they can talk to about their disintegrating marriage, the reasons for it, and the pain they and their children are experiencing.  But they don’t sit down with those family members and friends to review bank statements, mortgage balances, or tax returns; they don’t talk about the nuts and bolts of what a divorce really is, at its most basic: an economic transaction.

And the fears are rampant.  It amazes me how consistently – with some exceptions, of course – people spend whatever is available to them, and perceive themselves to be in difficult financial positions regardless of income level.  Meaning that the couple with a combined income of $500,000 might have nothing but an expensive house, mortgaged to the max, retirement funds they can’t touch, and a checking account.  No savings at all, and no clear idea about how to make lifestyle changes to enable that considerable income stream to support the family when divided between two households.  And sometimes there is a total disconnect between perception and reality.  Like the client with tremendous inherited wealth who is terrified at the prospect that she might have to ever spend any principal, because in her family of origin, the standard was that one should be able to live entirely off the income from one’s stock portfolio, so as to preserve it for the next generation. 

Maybe if we felt freer to talk about money, we’d be able to think about it with less anxiety and more realism.  But I don’t see any signs we’re moving in that direction.

Hopeless Romantics Redux

Back when I first started this blog, I posted an entry I called “Hopeless Romantics” about the excitement in our office when our paralegal got engaged; curious, I thought, in the context of us being in the divorce business.  Last month, that paralegal got married and I revisited this issue, this time for my blog in the Huffington Post (http://www.huffingtonpost.com/margaret-klaw/).  The entry is below.  The post in Huffington generated a firestorm of comments, most of them very skeptical (and that’s putting it nicely) about my premise that divorce lawyers are actually great believers in marriage.  I’m sticking to it, though.

You should’ve seen us.  Beaming as she walked down the aisle, radiant on her father’s arm.  Pulling Kleenex from our purses as she ascended the altar to meet the groom.  Dancing at the reception, a wild circle of us, frenzied with laughter, champagne and excitement.

Typical scene at a co-worker’s wedding?  Yes, except for one massive difference: all of us beaming, sniffling, dancing women are divorce lawyers and our staff, turned out en masse to celebrate our paralegal’s wedding.  Really? Aren’t we supposed to be deeply cynical?  Aren’t we so blinded by the dark side of marriage that we can no longer see beauty and hope in a wedding?

Not a chance.  To the contrary, my firm and my colleagues at the family law bar are, in my wholly unscientific estimation, deep appreciators of marriage.  We, more than most, understand the value of family.  We know it’s what gives meaning to people’s lives because we see the depth of the pain when it doesn’t work out. Divorce makes most people miserable, it makes some greedy, and it makes a few (a pretty big few) violent and destructive to themselves and their kids.  Grown men cry in my office because they miss their kids.  Women shake with fear at the thought of having to sell their homes.  But marriage remains a powerful draw. Despite the misery, so many of our clients navigate the choppy waters, land on the other shore, and what’s the first thing they do? Get married again!  And our gay and lesbian clients have been fighting hard for years for the right to join the ranks of the married.

Perhaps the paradox of the hopelessly romantic divorce lawyer is also a product of self-selection. There are many lawyers out there who can’t get away from a divorce case fast enough. Could it be that those of us drawn to this practice find the issues so compelling precisely because we place such a high premium on marriage and family?  Because rather than viewing a divorce as someone’s dirty laundry we’d rather not get involved in, we take pride and pleasure in shepherding our clients through a difficult period of transition to a place where they can be happy again?  At my firm, we have been touched by invitations to attend the weddings of former clients, we routinely send wedding and baby gifts, and we love to receive holiday cards with pictures of our clients’ children.  It makes us feel good to know our clients are enjoying their families, however those families are now reconfigured. 

Whatever the reason, I know for sure that I’m a better spouse and parent because of my profession. I feel grateful for the marriage I have and - here’s what I think is probably the key - I’m tolerant of small problems and differences because I am so acutely aware of the big picture, of how unimportant those differences may be when compared to the potential cataclysm of divorce. And my husband is a better spouse because of my profession too – as he’s mentioned on more than one occasion, he’d be terrified to divorce me and anyway, if he decided to, he’d want me to represent him.

I once met someone who was a member of a religious group which completely rejects the notion of divorce. He asked me what I did for a living, I told him, and he asked how I could sleep at night. Of course, I can sleep at night because I strongly believe that people should not remain in marriages that are unhappy or abusive. However, I think he had a picture of me as someone who goes around with a wrecking ball aimed at marriage as an institution. I only wish he could have been at the church when our paralegal walked down the aisle.

Divorce Equality

A woman called me the other day who wants to get divorced.  Which initially sounded fine, since that’s what I do.  But upon further discussion, turns out it’s not fine.  Turns out I can’t get her divorced and neither can anyone else: she’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.  

Sound like the eighteenth century?  Or Saudi Arabia perhaps?  Not so. To the contrary, this woman suffers from a thoroughly modern problem.  The problem is that her spouse is a wife, not a husband.  This woman married her partner in Vermont – can’t you just picture the quaint inn, the rolling green hills dotted with charming black and white cows, the wedding package so appealing to same sex couples in that most progressive state of all – and after the wedding they packed up and came home to Philly.  Therein lies the problem.  Pennsylvania does not recognize their marriage as valid, thanks to our “Defense of Marriage Act.” Not only does this nasty law passed by our homophobic friends in Harrisburg back in 1996 prohibit same sex marriage in Pennsylvania, but it also provides that a same sex marriage entered into in another state is “void in this Commonwealth.”  And if Pennsylvania doesn’t recognize you as being married in the first place, our courts have no authority to divorce you.

So why not tell my would-be client to go back to Vermont to get divorced?  Because she can’t.  Because although Vermont allows non-residents to get married, the opposite is true when it comes to divorce: you have to live there.  And this is not unique to Vermont – it’s the case across the board. There is no state in the country which requires residency as a prerequisite for getting a marriage license.  In other words, you can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can get married – for the weekend, that is.  But like Vermont, all states require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differently by different states, it still means someone’s got to live there for some definite period of time – in the case of Vermont, for six months before a divorce complaint can be filed.

What’s my would-be client to do?  She’s stuck, unless she or her wife a) move to a state that will recognize their marriage; and b) live there for long enough to satisfy the residency requirement so they can file for divorce.  If they don’t do this and one of them wants to marry someone else?  She can’t.  Because she’s still married.  The irony is overwhelming. Gay people fought so hard for marriage equality and now, when some of those marriages don’t work out (see, they’re not so different from straight people!) they need to fight for the right to get divorced. 

I’m confident that within my lifetime the U.S. Supreme Court will rule that it is unconstitutional to prohibit same sex marriage and this ridiculous state of affairs will finally go away.  But until then, some gay friendly state – maybe Vermont? – should consider eliminating their residency requirement for divorce.  There’s some serious pent up demand out there.

Buyer's Remorse, a/k/a "The Call"

It’s like a dance.  I know the rhythm and the moves.  It goes like this:  I suggest a settlement proposal to my client. Let’s call him Guy and let’s say I recommend we make the following proposal: Guy’s wife gets the house, Guy keeps his 401k, and Guy pays Mrs. Guy alimony of $2,000 per month for three years. I make this recommendation because it would be, in my very educated and very expensive opinion, an excellent deal for him but not so tilted in his favor that opposing counsel will reject it outright. I’m looking for her to come back with a counterproposal we can negotiate down from and still end up with a good deal for Guy.

I have to convince Guy that this is a reasonable proposal.  He wants to offer no alimony.  I have to push him to understand that this case is one where alimony is clearly involved, so not offering it at all makes our proposal worthless because it will seem like we are not serious about settlement.  I also have to make sure he understands that our proposal will just about certainly be rejected, that it’s a starting point he needs to be prepared to move off of. 

Finally, after a long meeting, I get Guy on board.  We make the proposal.  We get a counterproposal – house and 401k fine, but Mrs. Guy wants 7 years of alimony at $3,000 per month.  Guy flips.  I calm and explain. I tell him that a court actually could order that much alimony – it’s in the ballpark. I call opposing counsel and tell her she’s way off base, that a court would never order that much alimony, and that we may come up a little bit from our initial offer but I certainly am not going to recommend to my client that we split the difference between our two alimony proposals. I call Guy and tell him we should try one more round by increasing our offer a little but ultimately be prepared to split the difference, as that would still be a very reasonable deal for him. .

More rounds of negotiation ensue.  I argue with opposing counsel. Guy argues with me after every round. We finally settle on alimony somewhere in the middle. Guy is relieved to have it over with and pleased that we can avoid court. The settlement agreement is written up and signed.  Guy thanks me profusely. 

Two days later I get The Call.  Guy is talking fast and loud.  He’s very upset. He’s getting screwed. He showed the agreement to his brother-in-law, a personal injury lawyer in Virginia, and brother-in-law can’t believe Guy has to pay that much alimony.  He talked to his buddy at work who told him that there is no alimony in Pennsylvania. None of his friends who have been divorced pay alimony.  What’s going on? 

I listen. I sigh inside.  I soothe.  I remind Guy of the facts in his case which form the legal basis for an award of alimony in Pennsylvania (his income being way higher than hers, long marriage, no liquid assets being divided).  I talk to him about weighing the cost of his legal fees to litigate this issue vs. the dollars at stake. I remind him of the roll of the dice he’s taking if we go to court – could come out better than this settlement but also could be a lot worse. I also tell him that discussing his divorce settlement with friends and relatives may be a bad idea.  Every state’s law is different.  Every case has different facts and circumstances.  It’s just not helpful to compare your divorce with your cousin’s or your barber’s.

Guy listens. He calms down.  He sighs.  He remembers that we did talk about all this before.  He’s okay.  Not happy, but okay.

Dance over.    

Bigamy

As an unofficial expert in the field of matrimony, I have come to believe that I, unlike many of my clients, am good at being married. I should know - I have two spouses.  One is my husband, whom I met on my first day of college and have been married to for 28 years.  I spend evenings, weekends, and vacations with him.  We’ve raised two children together, with all of the love and commitment that entails.  The other is my law partner, Joni, with whom I’ve been practicing for 20 years.  I spend my days with her. We have built a law firm together, which also entails an awful lot of love and commitment. Throughout the years we’ve added many “children” - associates, support staff, a new partner, and scores of law students and baby lawyers whom we train and mentor and generally fuss over and then proudly send out into the world to fight the good fight. 

A business partnership is so much like a marriage.  Joni and I have been through times of prosperity and times of great financial stress, we’ve mourned a beloved paralegal lost to AIDS, and we’ve rocked our employees’ babies in our arms.  We’ve moved to different (and bigger) offices over the years, creating a space and a culture we want to live and work in.  My husband had the opposite experience of having a business partnership go sour and it was just like a divorce.  The hurt, the anger, the recriminations, the endless negotiations – it was all so familiar to me, and he so needed to get out. 

So what is it that makes some people good at a partnership, personal or professional? I think being easy going is a really huge piece of it, being comfortable letting the other person make decisions even if they’re not exactly what you would have decided yourself.  And then there’s money.  So many of my divorce clients tell me that their marriages broke up over disputes about money (far more than disputes about sex, by the way.)  About how to spend it, how to manage it, and when to borrow it.  Since I can count on one hand the total number of arguments I’ve had with both my spouses about money in my collective 48 years of marriage to them, that’s probably the key. 

In the last few years, I’ve added spouse number three, Megan, Joni and my third partner. So far so good with her as well. Think I’ll skip that model on the home front, though.