One Divorce, Two Countries and Lots of Lawyers.

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Over two decades ago, when I was still handling divorces, I needed to find a Solicitor and Barrister in London quickly. Solicitors in England are basically the same as general practice attorneys in this country. English Barristers are specialists in the law. My client would need both because this divorce was being waged in two countries. I was confronted with the most novel legal strategy of my career. Here is the story with fictional names, of course.

Jack filed for divorce from Marge in Pennsylvania after a thirty year marriage. Marge hired me to represent her. Jack had climbed high into the corporate executive structure. Marge managed their home while also working at a job but her priorities were their home life. Jack had now developed other interests in a world where Marge did not fit in. His income dwarfed hers as did his retirement plan and other assets in his name. We petitioned for temporary alimony, available in Pa. to bring some economic equality to the parties during the divorce litigation.

But Jack held the power at this juncture of their relationship and he knew how to exploit it. He wanted a divorce with more favorable terms than he could obtain in Pennsylvania so he secured a transfer of his job, established what he called a “permanent residence” in London and filed for divorce there. Marge was very hurt by Jack’s callousness.

Under English law Marge would not get alimony nor the equitable distribution of marital assets that she was entitled to in Pennsylvania. Marge needed legal representation in London to fight for her interests. Her funds were limited but we worked out a suitable arrangement. Not every person could stand up to the power-move Jack had employed but Marge was strong. She would fight.  So now I needed to find a London law firm that would work with us.  Where to start?  Very little in my legal career had prepared me for this task except for one thing. I had learned years before about the importance of building a strong network of referral attorneys to help with cases I was not equipped to handle alone. After hours of research and phone calls to my network I vetted and secured a law firm in London that would work with us to fight Jack’s divorce action in England.

Discussing legal strategy with our London legal team was very interesting.  At times our accents, the differences in our laws and legal systems made for lots of questions and  a steep learning curve for both of us. After several months of hard work, court appearances by my English counterparts, hours of phone calls and faxed correspondence, our inter-continental legal team had successfully stalled the London divorce in favor of the Pa. legal action.  Marge stayed strong and the power dynamics were back on a fair footing in Pennsylvania.

After some tough negotiations, the alimony and property settlement issues were resolved here in Pennsylvania fairly and without further court appearances.  Fortunately, there were no children drawn into this international drama. In the end all that Jack succeeded in doing through his legal maneuvering was to increase legal fees and inflict  needless emotional damage on Marge  that would leave scars on her and maybe him too for a long time.

Not Dressed for Court!

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Back in the late 70’s, law office attire was much different from today. Dress casual is common today. Back then the guys in my law office wore ties virtually every day. Beyond the tie it varied from suits to slacks and jacket. Clients expected this level of dress and courts required it. If I wasn’t going to court or didn’t have a client meeting, the style of slacks varied from pin stripe to dress slacks. At the time I owned a pair of slacks with a (somewhat) subtle blue, white and thin red plaid that were in-style sportswear. One Friday I decided to bend the rules and wear them to work with a red tie and blue blazer.

Late morning one of the partners called me into his office to meet a client.  After introductions I learned that the client’s son had a disposition hearing in juvenile court early that afternoon.  It was a sentencing hearing. The father was facing assessment of the costs to cover his son’s placement in a youth program. The partner told his client that I would represent the father and son at the hearing. Mild panic set in. There was precious little time to prepare for the hearing and no time to go home and change. I was going to have to wear this outfit to court.

The jacket and tie were fine but plaid pants for court? Unconventional to say the least.  I spent what time I had preparing for the hearing and got in my car to drive the half hour to court. I was really stressed-out about those darn plaid pants. I had appeared before this judge before and the best way I can describe him is “grumpy.” He probably never owned plaid pants in his life.  As a young attorney it was challenging enough to project confidence and competence. Conservative business attire for court was always the safest bet. How would the judge react?  Would he say something that would embarrass me in front of my client and the court staff?  Studies have shown that how we feel about our appearance affects our self-confidence. I didn’t need a study to make the point that day.

The hearing started and things went reasonably well. The judge didn’t comment about my pants but I am sure a few eyebrows were raised. The result for the client was about the best we could expect; maybe better than a young lawyer wearing plaid pants had a right to expect. I was happy to get out of that courtroom and back in my car.

I had spent hours worrying about what people would think of how I was dressed. I have found over the years that it is easy to fear the worst and that the fear of anticipation is almost always worse than dealing with the situation.  Suppressing anxiety is not easy but I do better by simply tackling hard things head on, accepting that the outcome may not be perfect and then putting the situation in perspective. In the big picture most situations do not live up to the worry.

I retired those blue plaid pants from their professional career after that day but they went on to live out their days in comfortable retirement, on the golf course.

 

 

 

Listening to a Father’s Love

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Jimmy Wilson (a fictional name) was 17 and born with cerebral palsy which confined him to a wheelchair most of his life. He had outgrown his manual wheelchair.

Jimmy’s family lived in a two level house.  It had a ramp from the front door to a sloping sidewalk leading to the rear entrance of the lower level. Someone had to push Jimmy in his chair from one level to the next because of his diminished upper body strength.

Jimmy’s parents learned about power-assist accessories that could adapt a manual wheelchair into one that moved greater distances with each arm thrust.  Jimmy had an opportunity to try a power-assist chair at home for a week and loved it.  This convinced his parents that this was the right replacement chair for him.

The Wilsons’ health insurance company so far had refused to cover the cost of this type of wheelchair because it was more expensive than even a fully motorized wheelchair. The power assist technology was so new that their health insurance company did not have a payment code for it and no guidelines for justification.   There were criteria for manual wheelchairs or for fully motorized wheelchairs, but not for power-assisted chairs.

When I first met them, Mrs. Wilson seemed very engaged in the effort to convince their insurance company to help with the cost. Mr. Wilson was supportive but more subdued, quiet and less involved.

We filed an insurance appeal. This appeal would be heard by a board of medical practitioners via telephone conference. In the following weeks Mrs. Wilson and I worked to get a new letter of medical necessity for this type of wheelchair from Jimmy’s doctor. Mrs. Wilson created  a photo array of their house showing the logistical problems for Jimmy to get from one level to the other with his current wheelchair.

A half hour before the appointed time for the conference call, Mr. and Mrs. Wilson came to my office for last-minute preparations for the appeal conference.   They decided that Mr. Wilson would present their case to the panel. As we began to discuss how to present the evidence it was clear Mr. Wilson was both nervous and angry that a panel of strange people would decide whether or not the insurance company would pay for the wheelchair.  I wondered how he would present the situation to the panel.

Finally, the call came. We were introduced to a five member voting panel. With introductions completed, Mr. Wilson began to tell the story of his son’s struggles around the house and in public with his manual wheelchair. He told the panel about the week they were given a power assist chair to try. Jimmy, for the first time, could wheel up the driveway without assistance and he was so excited, he wanted to do it again. Jimmy had found new freedom and independence.  Mr. Wilson explained that a totally motorized chair would give Jimmy mobility but not the exercise of his weakening muscles that a power-assist chair would offer. Exercising his muscles was the only defense Jimmy had against the condition that was crippling his body. This challenge and independence, Mr. Wilson explained, was extremely important to a 17-year-old who would be going to college next year. He told the appeal panel that Jimmy was an honor student with a very bright future and, “ would make a very positive impact on the world.”

As Mr. Wilson spoke passionately about his son’s challenges and dreams for the future, the love he felt for his son filled the room. I was moved. Mrs. Wilson reached for a tissue to dry her eyes.  When Mr. Wilson finished, the panel asked some questions and then the call was over.

Two weeks later the decision came. The insurance company had reversed its prior decision and approved the power-assist wheelchair for Jimmy. The decision came on his 18th birthday.

That phone call lasted about 15 minutes and occurred many years ago but I will never forget it. I had, for the most part, sat quietly and listened. As I have reflected on this case in the weeks, months and years that followed, I have come to understand how important listening carefully and patiently to my clients is. Lawyers are so conditioned to get to the relevant facts and think ahead to what they will say next that we often fail to fully listen to our clients and hear their concerns, their needs and their frustrations. Sometimes clients simply want someone to listen and hear them.

 

Spiderman Gets Divorced

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One evening I was meeting with a new client; a woman who was recounting the stormy relationship between her husband and herself. The meeting was in my second floor office. All of a sudden there was a police officer standing at my office door asking: Is everything alright?  Stunned, my client and I looked at him and I asked why he was there. He told us that a neighbor reported seeing a man climbing up the outside of my office building toward my lighted office window. The headlights from the neighbor’s car as he drove into the parking lot had scared off the man. The building has a brick exterior with architectural corners that would allow someone who was nimble and strong to climb up the wall to the second floor.

While the man was never caught we concluded that this guy was the husband of my client who apparently followed her to my office and wanted to see what was going on. From that night forward he became known in my office as Spiderman.

Over the weeks and months that followed my client reported that despite their separation, Spiderman was not ready to end their marriage.  My client shared with me details of angry verbal battles between them. I knew my client well enough by now to know that she could hold her own in this regard.  Fortunately, they had no children.

In 1980, years before I worked on the Spiderman divorce, Pennsylvania had enacted a no-fault divorce law. Under the law, if one spouse did not consent then the couple would need to be separated for two years before either could obtain a no-fault divorce without the consent of the other. My client and her husband were now living apart so the clock was ticking.

Prior to 1980, a spouse petitioning for a divorce would have to prove the other was guilty of marital misconduct while the Petitioner was “innocent and injured.” My experiences dealing with fault-based divorces taught me that many married people seeking divorce were injured but few were completely innocent. The old fault system forced many married couples who wanted to be divorced to conspire and lie to the court about who did and did not commit misconduct. People were also forced to share with their lawyers and the court all of the ugly details of their married life.  Prior to 1980 the ratio of women to men practicing law was small. This forced most women seeking divorce to share with their male attorneys some very intimate and painful stories. Our system was adding insult and humiliation to the injuries these women had already endured.

Eventually, my client and her husband agreed and the no-fault divorce was finalized.  I didn’t have any contact with this client for several years after the divorce was finalized. When I saw her again she told me that she and her ex-husband had resumed their relationship, had a child and remarried. Relationships are complicated and maybe more so when one party has the other climbing the walls.

The Angry Judge and the Paperclip

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A routine day in court turned into quite a spectacle. I was in Judge Nameless’s courtroom to file a motion. I presented the motion to him, an original and two copies as required by the local court rules.  Judge Nameless looked at the motion, stared down at me from his elevated bench in the courtroom and said: What is this?  Without hesitation I replied, a motion for continuance your honor. He snorted back: I can see that. Where is the regular form? And then, he jerked the paper-clipped original from the copies with such force that the paper clip flew up into the air and landed ten feet away next to the court reporter. I had apparently committed a grievous mistake.

The judge objected to my audacity to use a paperclip to hold the copies with the original instead of that court’s special preprinted form. The special form was a product of 1980’s technological wonder which attached the original to the copies with adhesive at the top and imprinted the copies as you filled in the original. It was that lousy paperclip! Don’t get me wrong, to this day I am no fan of paperclips. What other inanimate objects have the ability to attach themselves to one another, multiply and hide like chameleons when you need one?

There I stood, a young attorney, in front of the courtroom facing this angry judge with the courtroom full of other attorneys behind me waiting their turn. In my most respectful voice I uttered: I apologize your honor; our office was out of the preprinted forms. He glared down at me and barked: Don’t apologize to me counsellor. You should apologize to all of the other attorneys in the courtroom whose time you are wasting. I was tempted to say, You are the one wasting time Your Honor. But, I could see he was dead serious. So I turned faced my colleagues, many older, and stuttered a quick, my apologies. What I saw was a room full of sympathetic, stunned faces.

Judge Nameless, sensing that his control over all things in his courtroom, if not the universe, had been restored, granted my motion and called for the next case. As I walked out of the courtroom I recall seeing many of the attorneys removing paper clips from their documents.

The vast majority of my experiences with judges have been much less eventful. They are well-trained professionals who take their jobs seriously and work hard to be fair and follow the law. But they are people like the rest of us, subject to the same emotions and personal issues we all face. So they have bad moments too. Judge Nameless didn’t hurt my reputation or feelings that day. He gave me a new war story to tell and I understand he still holds the record in the courthouse for paperclip launching distance.

Hate. A Bullet. What Makes a Criminal?

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It was the middle of the night and Mr. James, (a fictional name) an African American man, was asleep in bed with his wife. Their baby was asleep in another room of their rented house. A man and some of his friends stood outside and shouted racial slurs and menacing taunts to scare the family. It continued for some time. When Mr. James reached his breaking point, he got his handgun and fired in the direction of the men outside from his second story bedroom window.

A few days later a friend of Mr. James who was helping him raise money for a lawyer called me and asked whether I would represent him. One of the bullets Mr. James fired had hit one of the men and damaged his spinal nerves. He was now paralyzed from the waist down, maybe forever. Mr. James had been charged with attempted murder and other lesser charges.

I had known Mr. James casually for over 10 years. He was a big man with a reputation for being kind, cheerful, respectful and hardworking. Why didn’t he call the police instead of firing his gun? Did he intend to kill or injure one of the men or just scare them away?

During the first ten years of my general practice of law, I handled criminal cases. The people I represented were children, men, women, white, black, bi-racial and ethnically diverse. The cases ranged from minor offenses to felonies. The clients were alcoholics, drug addicts, smart, intellectually challenged, mentally unstable, mean, victimized, hateful, repeat offenders and average people who made a single bad decision. Their actions were hurtful, dangerous, damaging, sometimes devastatingly so and often to themselves. They stole and destroyed. Many seemed sorry only that they had been caught.

Mr. James went to prison but not for attempted murder. Lives and families were destroyed that night. I have never been in a situation like the one Mr. James and his wife faced and I never will be as a result of my genetics or my birthplace.  I am a white male firmly rooted by birth, education and genetics in the middle class without mental disease or addiction, except for nicotine addiction for twenty years.  I had little in common with most of the people I represented in criminal cases.

At the time I did not understand what caused or motivated these people to do these things.  I admit that privately I often negatively judged them and their actions. That was counterbalanced and, I hope, overcome, by my competitive desire to obtain the best possible outcome in each case and my belief that every person deserved effective legal counsel. My inner struggle eventually led me to stop handling criminal cases.

At the time I lacked any significant knowledge of how poverty, racial and ethnic prejudice and genetics can stack the deck against a person’s success in our country’s educational, economic, judicial and political systems. Over the years our legal system and I have gained more knowledge about the effects of these conditions on people. Looking back I realize that my personal judgments were formed, in large part, out of ignorance. I never stood in their shoes. Practicing law has taught me that I will never know enough to be anyone’s judge.

The Supreme Court Attacks Racial Bias in the Jury Room

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The Supreme Court, ruled on March 6, 2017 in the case of Pena-Rodriquez v. Colorado, that where a juror makes a clear statement during deliberations indicating that he or she relied on racial stereotypes or animus (hostility) to convict a criminal defendant, the Sixth Amendment guarantee of trial by an impartial jury allows the court to determine if the defendant’s rights were violated. With this decision the Court has created a constitutional exception to the evidentiary rule prohibiting a juror’s testimony after trial disclosing improper juror considerations during deliberations (no-impeachment rule) in cases where clear racial bias is evident.

The jury convicted the defendant of harassment and unlawful sexual contact. Following discharge of the jury, two jurors told defense counsel that during deliberations juror H.C. had expressed anti-Hispanic bias toward the defendant and his alibi witness. They stated that juror H.C. made numerous statements of bias such as, “I think he did it because he’s Mexican and Mexican men take whatever they want and H. C. further pronounced that, in his experience (in law enforcement), ‘nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.’” The trial judge allowed defense counsel to present juror affidavits of these facts during a hearing for retrial.  The judge acknowledged the apparent bias based on defendant’s Hispanic background but refused to grant a new trial because Colorado’s no-impeachment rule does not recognize evidence of racial bias as one of the rule’s exceptions. The ruling was upheld on appeal in the Colorado courts and was then appealed to the U.S Supreme Court.

The Supreme Court stated in past decisions that the purpose of the no-impeachment rule is to promote full and vigorous discussion by jurors and provide assurance that after being discharged jurors will not be summoned to recount their deliberations or be harassed. The Court notes that currently at least 16 jurisdictions recognize an exception to the no-impeachment rule for evidence of racial bias during deliberations. Justice Kennedy, writing for the five to three majority, states that “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”  The opinion further states that, “racial bias, unlike other misconduct in past cases, implicates unique historical, constitutional and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice” and is “antithetical to the functioning of the jury system.”

This case is significant not only because it establishes a constitutional exception to the no-impeachment rule for racial prejudice, but, in doing so, it reaffirms the Court’s commitment against racial discrimination in the judicial system reiterating its prior pronouncement that, “discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’”

Justice Alito, dissenting, expresses concern that the majority’s holding cannot be limited to evidence of racial prejudice alone and therefore should be rejected. He writes that the Equal Protection clause of the Constitution would arguably open the door for attacking verdicts where evidence of juror bias is clear based, “on any suspect classification…such as national origin or religion, …sex…or the exercise of the First Amendment right to freedom of expression or association.” He may be right. The idea of purging discrimination from jury verdicts in the criminal trial system may become contagious.