Indiana Family Law

For those who are beginning to wonder, yes, this blog is still alive. The last two weeks have been, well, challenging. I’ve been out two days each of the last two weeks as one of the trainers at a terrific family law mediation training program here in South Bend. The prep work and attendance has kept me quite busy.

Then, last Thursday night, my grandmother passed away at the young age of 94. She definitely got her money’s worth out of her life, as one of my colleagues said. This event sort of threw an additional wrench in the works as I had to take a couple of days off to deal with her arrangements and funeral.

The mediation training is done for the week, I’m back at my desk trying to figure out which end is up, with a number of ideas for good blog posts to come. Stay tuned.

An interesting story appeared in the Maryland Divorce Crier today. Apparently, a court has awarded a parent money damages arising out of the other parent’s interference with parenting time opportunities.

My first reaction was that maybe this isn’t such a bad idea. My immediate second reaction was that this decision is only going to escalate the conflict between the parents–with the children caught in the crossfire. My third reaction is that the conflict between the parents may already have done terrible harm–it must be pretty awful if the court had to resort to these kinds of punitive measures.

This case presents a good example of the toughest dilemma many family law attorneys face. We want to do things to avoid conflict and harming the children, but what do we do when one parent is simply unreasonable and will not do what’s best for the children?

My developing theory (subject to revision at any time) is that the parents who cannot see past their own anger, their own hurt, their own emotional baggage are like addicts: they need to “hit bottom” before they can see how harmful their behavior is. No amount of talking by the other parent, the lawyers, or the judge is going to open this person’s eyes.

I know these things can happen. I have seen cases where the parents have had a very contentious post-dissolution life, and at some point in time they get tired of fighting, bury the hatchet and start cooperating. These cases are not common, but they are not unheard of.

The best thing we attorneys can do with parties like this is to begin “talking them down” from the beginning. Conflict tends to escalate during a divorce, so if we can settle a person down quickly, help him or her understand that there are consequences to certain decisions, perhaps the parent will stay off the path to endless battles. If we don’t, we send the signal that the increasing tensions and conflict are okay–and even if we try to put a stop to it later on, it may be too late.

I’m rather hesitant to even post this or write about this. In a nutshell, a wife in New York whose husband wants a divorce decides to “let him have it” by recording a video and posting it to YouTube. It appears this couple have no children together, thankfully.

In the video, the wife discloses that she and her husband have never had sex (he claims it was due to high blood pressure, but she finds Viagra, condoms and porn belonging to her husband), and calls her husband’s secretary to have her ask the husband what he wants done with this stuff. This is cringe-worthy material, and you couldn’t help feel for the poor secretary who found herself dragged into this horrible mess.

Sadly, these sorts of things happen all the time–we usually don’t find them on YouTube. Divorce can and often does cause a great amount of pain, and when one side inflicts pain upon the other, it can result in a nasty backlash. While I don’t know the entire story, I wouldn’t be surprised if the wife in this video was deeply hurt by her husband.

The moral of the story here is that if you decide to behave in a totally contemptuous manner toward your spouse, don’t be surprised if he or she does something equally awful in an effort to get even. Rather than “slamming the door” on your relationship, try closing it quietly.

Is your lawyer brainwashed? It’s possible if he or she charges you an hourly rate for handling your family law case. I have been thinking about writing a post on the problems with hourly billing, and today from the Oklahoma Family Law Blog we have the article that pushed me to finally set fingers to keyboard. (To “set pen to paper” still sounds much better, but I digress.)

For as long as I’ve been practicing law, there have been two basic billing methods: hourly rates for just about every type of case and contingent fees for collection and personal injury cases. We lawyers have been conditioned–brainwashed–to think of our time as having value. We have learned that six minutes equals .1 hour on our time sheet. Some of us wrestle with how to record time for something that takes less than six minutes. Should we write down .05 for a two-minute task? Is it fair to charge the client for that extra minute? That’s just one of the problems with hourly billing–minimum billing increments that may actually overcharge the client.

There are many other reasons to dislike hourly billing. For one, it is subject to abuse. The classic example involves the attorney who billed one client for his time on a two-hour flight to attend a deposition out of town, and billed a different client for the same two hours as he reviewed that client’s file. The hourly billing practice also rewards a lawyer’s inefficiency. After all, why not take forty-five minutes to draft something that can be done in thirty minutes when you can pick up an extra $50 if your rate is $200/hour?

How many professional services do we pay on an hourly basis? If I go to the doctor, he charges me based upon the level of service: an in-depth examination of a problem is more costly than a visit to his office because I have a head cold. The time in the examination room may be the same, but the value of his service is different under each scenario. When I go to the dentist, I know that a cleaning and fluoride treatment will carry a certain cost. I don’t get a break if the hygienist doesn’t need as much time because I’ve been flossing faithfully.

Simply put, we lawyers need to stop thinking about the value of one hour of our time and start thinking about the value of what we provide to our clients. I’ve been working on this task for several months, and I’m just now at the point where I’m transitioning to a flat fee system. At this point in my career, I should be able to gauge a case and decide whether the fee will be lower (for a simpler case) or higher (for a complicated case). I may occasionally estimate incorrectly, but mistakes like that will happen. We’ve all had cases where the client asks for an idea about the overall cost, and our estimate ended up being too low. Many of those cases result in unpaid bills or unhappy clients.

In the few cases where I’ve used a flat fee, my clients have not shown any resistance. I can quote them a fee that I know should cover the work that I do, and my clients have comfort in knowing that the fees won’t go on forever. They are happy, and they pay their bills promptly.

I will confess that when I sit down with a potential client, I’m on alert for reasons to ditch the flat fee model and revert back to an hourly rate. It’s always comforting to retreat to what is familiar. My hope, however, is to find myself as comfortable with flat fee arrangements as I have been with hourly rates. I think my clients and I will both benefit from that change in my way of thinking.

With the exception of many adoptions, the world of family law is filled with conflict. Spouses are in conflict with each other about a wide range of issues. Former spouses could be in conflict regarding child support. Parents can be in conflict regarding parenting schedules. These conflicts arise out of personal issues–hurt feelings, anger, distrust, and so on. Far too many of these conflicts end up in the courtroom, where the judge can apply only legal answers. The judge may have the power to make a parent pay child support, but the judge lacks the power to make parents get along.

Today I ran across a web site called Conflict Zen. The author is a professional mediator with a rich background of experience. She has developed a tool, called Talk It Out In Ten, which can be used to help people in conflict identify and clarify some of the challenges involved in their communications problems. At first glance, it appears to be a little “warm and fuzzy,” but upon closer examination it looks like it has a great deal of potential.

You can obtain the PDF of the Talk It Out In Ten pool by subscribing to the RSS feed at Conflict Zen, or you can download it here. If you’re a mediator or a person with a difficult relationship with someone, consider using this tool to help break through some of the barriers.

With April 15 right around the corner, the Chicago Family Law Blog has a very helpful and timely post about tax issues in divorce.

According to Wikipedia, today, April 7, 2008, marks the day that in 529, Byzantine Emperor Justinian I issued the first draft of the Corpus Juris Civilis, the first effort at codifying Roman law.

This information, of course, will be of interest only to those needing some conversation material to use at their next cocktail party–or their next bar association meeting. It might come in handy to drive off unwanted conversation partners.

The International Academy of Collaborative Professionals has released a free information kit that will help spouses better understand how collaborative practice works, and why it is far superior to the traditional “fight it out in court” model. (Hat tip to Stephen Worrall’s Georgia Family Law Blog.)

The Indiana Lawyer has run an article on law firms that use blogs as marketing devices. Although this blog is not an Anderson Agostino & Keller blog in the sense that the firm publishes it, the blog is certainly affiliated with the firm.

It’s always nice to see the media pick up on blogging and its uses. Hopefully this will help attract some more people to the blog and its resources.

Finally, I need to apologize for the lack of updates lately. I’ve been a bit distracted with my elderly grandmother’s medical situation for the last couple of weeks. That appears to be stabilizing and settling down, so hopefully I can get back on track. Thanks for your understanding.

It has been roughly six months since Allen County banned cell phones and other electronic devices in its courthouse. The ban applies universally–doctors, attorneys, jurors, others are all subject to the ban.

In a world where technology is the standard, this anti-technology position is not only silly, it’s counter-productive. (Our federal district courts have a similar policy, although it’s not quite as restrictive.)

Attorneys have the responsibility for meeting deadlines. The failure to do so can be catastrophic to a client’s interests. Technology allows attorneys to better manage their deadlines. Portable calendars that synchronize with computer systems mean that not only does the attorney know about a deadline or hearing date, but everyone in that firm can know as well.

Palm and other handheld organizers should not be banished from our courtrooms and courthouses, at least for attorneys. I can understand no one wants a cell phone going off in the courtroom, but there are some other steps that can be taken to avoid the problem. For one, the officers working the security stations at entrances can tell everyone with a cell phone, “turn it off–if it rings, it’s forfeited.” Signs to the same effect can be placed on the doors to courtrooms (as our Circuit Court has done here in St. Joseph County).

Paper calendars for use in the courtroom are one solution offered by supporters of the prohibition, but they have a flaw: if that paper calendar does not get transferred to the computerized calendar, a deadline or hearing date will be missed.

Our district court has a decent compromise: no cell phones or devices with cameras. That limits our options somewhat (which is part of the reason I carry an iPod touch rather than an iPhone), but it is a more reasonable solution to the problem.