Saturday, December 1, 2012


Lawyers feel fulfilled when they are successful in a case and when they have met a client’s expectations.  These moments are becoming less and less frequent as well as less and less satisfying.  In part, this is due to the lack of court services caused by extreme budgeting problems in Los Angeles County as well as other counties around the state of California.  Mostly it is caused by the ever-increasing difficulties resulting from the stress, lack of control and anxiety of the opposing attorneys and clients, which cause even relatively normal people to behave badly, and by the lack of funds to pursue the correct course of action(s) in any given case. Practicing collaborative law can give attorneys a better sense of fulfillment and confidence. Rather than contending with delays, judicial cuts, difficult temperaments, a hostile court environment and a variety of unpleasant, unhappy people, a family law litigant can be treated during negotiations to the comparative creature comforts of a law office and the pleasure of being listened to - uninterrupted.

In the standard litigation model, the minor children are subject to hostility and complaints from each parent toward the other.  For example, the 13-year-old son is having behavioral issues at school and his report cards show a decline in grades. Dad believes his son needs stricter boundaries and seeks to have Johnnie live with him so he can control his environment. Both mom and dad are afraid that if they are strict, their child may want to live with the other parent. Minor children over a certain age now have the right to testify as to their preference. The client may feel like he or she is losing the right to parent as he or she sees fit.  All the things that matter most to the client, including the health and welfare of the minor children, family finances and peace of mind - are becoming compromised. The feeling of lack of control becomes overwhelming. The client begins to realize that s/he may have to pay an unpredictable amount of money, and may have to wait an unpredictable amount of time, to receive an unpredictable and uncontrollable outcome.

In comparison to the litigation model, in the collaborative process, the parties meet with both of their collaborative attorneys. They come together in a small conference room. Each client’s attorney has a communication specialist sitting with the client. The attorneys’ attention is with their clients. They are offered fruits, sweets, tea and coffee. The attorneys make sure all parties are comfortable. Everyone is respected. One party is asked by the other party’s attorney to speak about her concerns, needs and wants. When she says all the things she needs to say, all the people in the room listen to her and validate her. The other party does not interrupt, because both of them were taught how to listen and not interrupt. He also knows that he will have his turn and he does. If one of them interrupts the other, the communication coach is right there redirecting him or her to listen. When one of them speaks about his or her concerns, needs and wants, the other has the peace of mind that they don’t have to defend themselves. This is not an adversarial system. Both clients know the process will not end in an outcome unless the outcome is acceptable to both of them. They have control over the outcome. Your client learns to listen. She finally can hear him, maybe for the first time after many years, because the communication specialists and the collaborative attorneys reiterate what each client’s commitment and interests are with what they are saying. The client realizes and learns what has been the real experience of the other party.  Weight is lifted off of each of them as they each realize that so much unnecessary stress can now be released. The clients practice open communication with each other with the help of the team in the collaborative divorce process, which they can hopefully carry over into their future interactions concerning the children. The clients work together to plan for the children, which is their common interest. They learn to respect each other in the process, and take home this valuable lesson to their kids.

The collaborative process is not always pleasant. In fact, many times, collaborative attorneys deal with anger, rage, hostility, suspicion and feelings of betrayal and abandonment, just like those involved in trying to get a judge to hear their story and rule in their favor.  The great value of the process is that each attorney is not alone dealing with all of it; the attorneys support each other and are supported by the communication specialists. The collaborative team provides a safe space for all that needs to transpire. The collaborative process has a unique psychological aspect to it. There is at least one mental health professional in a collaborative team (communication specialist). The collaborative team consists of collaborative lawyers, mental health professionals and an impartial financial expert (where necessary).  They provide all that the clients need to resolve their issues collaboratively. Working with the team in creating options that meet both clients’ needs is very fulfilling. A lasting relationship is built between all parties and professionals involved. The attorney’s caring and respect for the other party goes a long way. The parties learn to build a new relationship with the other parent or spouse through respectful and responsible communication. They also learn to have a new respect for the other party by the way the professionals relate to them.

Evidence of Hanukah and Christmas in Published Decisions

I recently found some evidence of Christmas and Hanuka in a few published decisions. For example, in the 1890's, an employer had always given his employee a $2,500 Christmas gift. Then he raised the employee’s salary. At Christmas the annual gift was given again. The employee said thanks and the boss said he was glad the employee was pleased. Later, the boss told a bookkeeper to charge the check back to the employee. The employee questioned the deduction and the boss said he had forgotten the new salary and had not intended a $2,500 gift on top of the raise. The employee sued. New York’s highest court called this case peculiar, saying it was clear the employer intended to give a Christmas gift and clear the boss later realized his mistake. But when the boss handed over an envelope with $2,500 and expressed good wishes, all the elements of a gift were present: intent to give, and delivery of the gift. The court ruled for the employee in Pickslay v. Starr, (1896) 44 N.E.163. In another Christmas case, the Illinois Supreme Court in Dow & Hurd v. Phillips (1860) 24 Ill. 249 reprints telegrams between partners. This case is a good read for whoever thinks only the internet created long back-and-forth message strings. The last of the series, a Christmas Day message, directs the partner to send a third party $300, followed by “Merry Christmas.” It is the first “Merry Christmas” in reported American decisions. But not so merry for the defendant who sent the message and tried to avoid liability. The court found them obligated to pay. The 150 year-old communications read like today’s email strings. Hanukkah dates back 2,100 years, but it was not in a published decision until 1962. Mr. Oxenhandler suggested that a bank create a Hanukah Savings Plan, like Christmas Clubs already available to the public. The bank did so. Oxenhandler thought he should be paid for the good idea but the evidence showed five other banks had Hanukah savings plans. Because the idea was not novel, the claim was denied. Oxenhandler v. Dime Savings Bank (1962) 227 N.Y.S.2d 642. If you know of any other interesting decisions revolving around these holidays, please post.