If I Were King Part II

If I were king, I would change the law that prohibits a judge from granting time-limited maintenance. Under the current scheme, a trial judge may not order maintenance for a term certain; rather, all awards are subject to a review and/or modification.

Philosophically, I am a judicial discretionist. I generally believe that it is best to give judges flexibility in crafting fair solutions. And each case is unique. Many times it would make sense, for example in a short marriage, to grant one or two years of maintenance without keeping the door open for extensions down the road. Or, what about the situation where the husband has been paying for ten years and the judge really doesn’t want to end it outright but wants to give the ex-wife a lump sum payout instead? Theoretically, under the current scheme, the trial judge may not do this and must keep the maintenance open-ended.

For the most part we are blessed with smart and fair judges.  Don’t tie their hands. Give them the power to do the right thing, and they usually will. And when they don’t, that’s why we have appellate courts.

Lawyers

"True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures- unless as amateurs for our own amusement. There is little of all that we do that the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state."

- John W. Davis

Conflict Diagnostics and Improving Kane County Family Court

Ron Ramer (a trained mediator and educator) and I spent the past several years developing a program to help Kane County family court work more efficiently and concentrate resources where needed. We pitched the program to the Kane County Bar Association family law committee. Unfortunately the committee rejected this concept, largely because of a few vocal opponents to change; but it really is an idea worth exploring.

Here is how the program would work. The parties and their attorneys would meet with a facilitator early in the case and the facilitator would “diagnose” the level of conflict. The facilitator would categorize the conflict as follows:

 

•    Low conflict: the parties were amicable and could agree on the most of the issue
•    Medium conflict: the parties were reasonable and while no agreement was imminent, mediation or negotiation would likely conclude the case
•    High conflict: For any number of reasons, the case was   volatile, very contentious and would need ample court resources

The facilitator, after diagnosing the conflict, would report to the trial judge who could better allocate resources to those in the high conflict range. The added benefit of the program is that the court could insist that the low conflict cases conclude more quickly, freeing up resources to concentrate on the higher conflict families.   By freeing up space on the docket, the court could micromanage the high conflict cases and move those cases through the system more promptly. Children are victims of their parent’s conflict, and accelerating the process will help these children start healing sooner.

It is too bad that the KCBA family law committee did not recognize the importance of this worthy goal.  I am working on article that will discuss this concept in more detail.

Thanksgiving and Gratitude

Thanksgiving and the holidays can be lonely times for divorcing people. And often the loneliness manifests itself as anger against their spouse or ex spouse. No doubt, divorce is painful and destructive; but instead of focusing on loss, focus on opportunity.

• Be grateful for what you have and don’t focus on what you are lacking.
• Concentrate on your challenges as positives and the rewards of meeting and overcoming them.
• Remember that all emotional pain is temporary and there will be sunnier days ahead.
• Live the axiom, “success is the best revenge.”
• Don’t idealize life­­––it is inherently full of struggles and discomfort. Make the most of things as they are, not how you want them to be.
• Remember that as bad as you feel, many people have it much worse.
• Find comfort in faith.
• Remember Steven Still’s 1960’s anthem, “If you can’t be with the one you love, love the one your with.” Enjoy yourself despite missing your kids.
• Remember, problems always look smaller after a warm meal and a good night’s sleep.
• Laugh a little! Its going to be OK :)

Happy Thanksgiving from the Peskind Law Firm.

What would Atticus do?

I just got my tickets to see "To kill a Mockingbird" at the local IMAX theater. I have seen the movie 100 times but never at a theater, much less an IMAX. After I got my tickets I started reflecting on the draw of this film. What is it about this movie that is so compelling? Obviously, a great morality play is at the heart of the story. This is probably why I love westerns as well; there are clearly defined good guys and bad guys. 

But there is more here in the character of Atticus Finch. I suppose what keeps drawing to this film at this point in my life is a desire to emulate Mr. Finch. I know I am not alone and people worldwide have been drawn to this character. He stands for all that is right and true, something we would all like to be.  He does the correct thing, regardless of personal cost. Atticus deals with problems quietly and with dignity. He confirms that strength and kindness are not mutually exclusive. And while he is slaying dragons during the day, his ultimate joy comes from his children.  I guess remembering this from time to time helps keep me centered in my world of perpetual conflict. Thank you Mr. Finch!

Abraham Lincoln, Esq.

I'm reading a book about the legal career of Abraham Lincoln. The book, Abraham Lincoln, Esq. edited by Roger Billings and Frank J. Williams, consists of a series of essays about particular aspects of his practice. In some ways very little has changed about the practice of law. I was surprised to learn that he did quite a bit of family law, but his primary core practice was  debtor/creditor law. Here is a quote that I appreciated:

" Day in and day out, Lincoln stared at the heat and friction created by the failings of human beings at war with one another. In a sense, he witnessed over five thousand little civil wars before he got to the big one in 1861. Lincoln was for all these people a lubricant: he allowed business relationships, families, friendships  and so forth to function without overheating, without seizing and locking up." (From Chapter entitled A. Lincoln, Respectable "Prairie Lawyer." by  Brian Dirck)

The author goes on to discuss how Mr. Lincoln and the law allowed the Illinois economy to grow because the law as the "grease" of the developing Illinois economy. Dirck continues:

"Heavens knows this probably was not a pleasant way to earn a living, though to his credit there is no record of Lincoln's ever grumbling about his lot in life as 'grease.' Bit pleasant or not, it was great education into the ways people interacted with each other."

How the practice of law influenced Lincoln and made history fascinates me.

The Successful Divorce

Is there any such thing as a successful divorce? The expression itself is a bit incongruous. But I think its possible. While the notion of divorce  inherently suggests failure, at the point that a couple decides to dissolve their marriage, they can achieve a successful divorce by treating each other respectfully and staying focused on their children's need for security and sanity.  Even if there are hard feelings or they don't agree on everything, people need to keep looking forward. Couples, while decoupling, need to leave themselves in a place that will allow them to someday dance at their children's wedding. That is a successful divorce.

Teaching Business Valuation to Ohio Judges

Anita Ventrelli and I will be speaking tomorrow to judges at the Supreme Court of Ohio Judicial College in Columbus, Ohio. The topic of our presentation is Trial Tactics: How to Make Trials Less Trying. We will cover the basics of business valuation in divorce from a judicial perspective, refereeing evidentiary issues, and how judges can better manage their cases and the lawyers that come before them. My presentation partner, Anita Ventrelli is a very accomplished trial lawyer and partner at Schiller DuCanto and Fleck, who like me, limits her practice to divorce and family law cases. I am looking forward to presenting with her tomorrow.

Congratulations To Those Lawyers Who Just Passed the Bar Exam!

Here are some words of wisdom for those joining me in the hurly burly practice of divorce law:

•  Credibility is everything.  Never lie to the court, your client, or your opponent.  Once you lose your credibility, your ability to advocate is forever tarnished.

• Balance being aggressive and being courteous.  It’s okay to disagree without being disagreeable.

• Your client may not know the level of your legal skill but if you look sharp and act professional their perceptions will be positive.

• Always strive to be the most prepared lawyer in the courtroom.  Your opponent may be smarter or more experienced but they can never outwork you.

• Don’t ever be afraid of trying cases or having hearings.  Learn how to try cases. Good trial lawyers don’t have to settle short because of fear of the courtroom.

• Don’t threaten or argue.  This connotes fear.  Quietly prepare and take it to the judge for resolution.

• Don’t become paralyzed by a fear of losing.  Concentrate on performance not outcome.  Remember – it’s not your life!

• Don’t be a slacker.  Speed and diligence make you more effective and let you negotiate from a position of strength.

• Nobody ever said it’s supposed to be easy!

• All economic rewards from the law derive from productivity, efficiency and effectiveness. Make it happen. Don't push paper.

• Your goal should be excellence in all endeavors.

• Don’t let it get personal!

• At all times among your regular reading read books on trial advocacy, legal writing and legal biography.

• Don’t be a wimp.  Wimps don’t belong in this business.

• Be a meticulous proofreader. Sloppy mistakes cost time, money and most importantly credibility.

• For every minute you spend planning you will save 3 minutes.

• We are a service business.  Treat all clients with respect. 

•  Keep current with the law, substantive, procedural and evidentiary.

• Don’t argue with judges.  You will lose.

•  Keep a journal of legal aphorisms and personal experience, as a learning tool.  Review it often.

• Write down professional and productivity goals.

• Watch and learn from the greats in our profession.  Ask them questions. Trial lawyers love to talk about themselves.

• Learn how to appreciate martinis.

• Fear no one.

• Maintain physical, mental, and spiritual balance.

• Return all calls within 24 hours.

• Nobody ever got into trouble listening.  Sometimes silence is indeed golden.

What Would My Dad Think?

My father, who also practiced family law, died in 1991. At that time, the fax machine was cutting-edge technology. In 1991, we still used books to research the law and while we used rudimentary computers, we weren’t yet completely dependent on them.

The other day I was thinking about how my dad would adapt to the modern law office. I remember how much trouble he had with his 5 pound cell phone; and I can only guess he would still be dictating to Marge, his secretary, as he did then. But while so many things have changed, the core of what we do has remained the same. We are still in the business of solving problems. While discovery has gotten completely out of control, the same basic procedures that applied then apply now. We still deal with fragile people at a very delicate time in their lives. Like then, we still need to balance empathy with action and advocacy with common sense.

In most respects, the practice of family law has changed little in the 21 years since David left us. I think about him often and wonder how he would look at things in our modern world.  But I'm certain his mantra wouldn’t change,” take care of yourself and your family, take care of your clients, and take care of the profession.” Timeless principles.

Solo and Small Firm Conference- ISBA

I will be speaking Friday September 14^th to the Solo and Small Firm Conference of the Illinois State Bar Association. The topic of my presentation is authentication of evidence, in particular the authentication of digital evidence. More and more we use Facebook pages, text messages and other forms of digitally based information as evidence. Digital evidence, like any exhibit, must first be authenticated before it can be admitted. Authentication requires a preliminary showing that the proffered evidence is what it claims to be. Foundational testimony is often used to authenticate the exhibit but other methods can also be used: stipulations, request to admit the authenticity of the exhibit, and judicial notice may establish that the exhibit is authentic. Authenticity is not a difficult burden and questions about authenticity of the exhibit go toward the weight given to the exhibit, rather than its admissibility. General claims that “the exhibit could have been tampered with” are insufficient to disqualify it. Don’t forget: establishing authenticity is only the first step in admitting the document. You still must contend with other evidentiary obstacles such as hearsay, best evidence rule, relevance, etc.