A week ago, Slate‘s Dahlia Lithwick started a contest looking for tales
of “the meanest thing you’ve ever done to an opponent on the holidays”
or other “stories of hideous pre-holiday lawyer shenanigans.” (Slate,
“Billable Horrors,” Dec. 13, 2005). Naturally, Walter Olson used Dahlia’s
lark as an occasion to seriously condemn such malicious mischief (without
offering solutions) (Grinch, Esq) and Prof. Bainbridge fretted that he might
actually have to show up for Jury Duty this week — delaying his consumption
of duckling and vinous liquids.
Before I get to my main points, please let me do a
bit of (nit)picking on Steve. Writing on Monday, Dec. 19, Prof.
Bainbridge says “And I can’t help but think that nobody’s
really going to start a trial this late in the week before
Christmas.” That makes me wonder just how much of
a buffer Prof. B. thinks is appropriate around the Holiday-
Christmas celebration? As an academic, Steve has ap-
parently lost touch with the vast majority of his profession
— not to mention the rest of the population — who need to
be on call should their clients or bosses need them during
what teachers must think of as “off-peak” and inviolable hours
and weeks.
In addition, I can already hear Steve’s complaints over
California taxes being wasted with empty court buildings the
weeks before and after Christmas, were it not his duckling get-
ting cold. For most of us, many issues depend on whose oxen
are being gored, but Prof. B is — god bless him — more willing
than most of us to reveal his myopia on his website. (On the
other hand, you can’t say he has no sense of humor.)
In my many years serving as a Law Guardian — a lawyer appointed
to represent a child in NYS, usually in Family Court — I often had to
deal with Christmas Season visitation issues. This was among the
topics most dreaded by the court and court staff. As much as I
knock divorce lawyers, I can’t say that I’ve ever seen one who was
the instigator of such battles, but I can definitely say that many of
them made things much worse by going along with or feeding the
anger or paranoia of their clients.
By their nature, Christmas and Christmas Eve and Christmas
Vacation issues often arise just before Christmas — often because
one estranged parent has unilaterally declared that he or she would
not follow their court-ordered arrangements, or wasn’t going to bring
the child(ren) back on schedule, or was leaving on vacation with them.
At that point, if a parent contacted me, as the Law Guardian, I would
attempt to “mediate” a solution that focused on the child’s welfare.
That was often possible, when the parents were appearing pro se, but
at times the lawyers would get in the way of a resolution — usually
because they needed to show they were the client’s protector (which
just happened to run up a few billable hours). At times, they threatened
me with ethical sanctions for talking to their clients out of their presence
(a bogus threat in the context of Law Guardians, in my opinion, and a
risk I willingly took in hundreds of instances — at $25 per hour!).
such a threat, when I called to ask him to telephone
his client to calm her down and get her to follow the
Court order. He screamed so loudly at me that I
said “call me back when you can hold a civilized
conversation” and I hung up. He never called back.
He didn’t want to call his client, because she was
a factory worker who had a hard time paying his fees.
In the end, I got the couple to stick to the con-
sent order, where one parent had the one-year-old child
Christmas Eve overnight and the other all day on Christ-
mas (with the roles switched the next year).
Earlier this year, f/k/a had a post discussing Valedictorian Litigation,
(counsellor or mercenary?), in which I had the following reaction
to John Steele’s saying “isn’t this another case where people were
out of control before they called for lawyers?“
I’d like to add these excerpts to my WISTful quotation —
Wish I Said That — collection . They’re by Sol Linowitz
(from DCBA Briefs, Betrayed Profession, June 1999):
“Elihu Root . . . put the matter more simply: ‘About
half the practice of a decent lawyer,’ he once said,
‘consists in telling would-be clients that they are
damned fools and should stop.’
“Today there are too few lawyers who see it as
part of their function to tell clients (especially new
clients) that they are damned fools and should stop:
Any such statement would interfere with the marketing
program. The public pays, because the rule of law is
diminished.”
Later in the same chapter, titled “Living the Law,” Linowitz
notes:
“The doctrine that professionalism means respect for
the client’s ‘autonomy’ and commands doing whatever
the client wants is, after all, most convenient. Nobody
ever lost a client by doing exactly what the fellow wanted,
but much lucrative legal work has been sacrificed by lawyers
who regretfully told prospective clients that this was some-
thing they were not willing to do.”
Thanks again, Lawyer Linowitz.
Many lawyers do try to serve that role as counsellor — especially when they
don’t want to upset their own Holiday plans. As Law Guardian (and as a
divorce mediator), I often got to see just how unreasonable clients could be
— and I could also see how anger and distrust fed on itself. My best story
of a “client” trying to ruin my Christmas goes like this:
Before 8 AM the day after Christmas, the non-
custodial Father of an 8-year-old called me at
my home-office saying that as Law Guardian
I had a duty to go get his daughter and bring
her to him. He explained that he called the
Mother’s home that morning and was told the
child was not there. I pointed out to him that
(1) we had two feet of snow overnight and there
was a snow emergency, with no driving allowed;
and (2) the Mother lived at the top of the highest
hill in town.
“SnowFlakeS”
The Father continued angrily to insist that I
had a duty to make his visitation happen. As
he babbled, I learned two more things: (1) the
girl was with her stepfather at a hospital,
because (2) her Mother went into labor over-
night and had delivered a baby that morning.
None of these facts seemed to help the Father
— an otherwise bright man — see just how
silly he was being. I told him I’d call him in
a day or so to see what I could arrange, and
I requested that he not call my home before
9 AM ever again. Because the Court was
virtually closed — for all but child abuse and
domestic violence cases — that week after
Christmas, I was relieved that the Father
would not be filing any violation petition that
week.
Sometimes, going to court around Christmas cannot be
avoided. Many courts have figured out ways to protect
themselves from Holiday shenanigans. Lawyers acting
as true counsellors — telling their clients when they are
being unreasonable or acting crazy — is often the best
safeguard. Until both clients and lawyers are perfect,
there will be new Holiday Horror Stories for Walter to
write about and Steve to fear.
waiting room–
the ex-wife
looks past me
custody hearing
seeing his arms cross
i uncross mine
A New Resonance 2:; pocket change
my toddler
helps pack her travel bag —
co-custody
piano practice
our scowling child plays
Ode to Joy
from his haiku chapbook piano practice
December 20, 2005
clients who ruin christmas (and lawyers who let them)
Comments Off on clients who ruin christmas (and lawyers who let them)
last-minute? not yet [christmas eve haiku]
Oh, stop catastrophizing. It’s only December 20th. Real Men
don’t think “last-minute shopping” or “last-minute preparations”
until about lunchtime on December 24th.
Christmas Eve–
the hum of power lines
just pass the mall
New Resonance 3; beyond spring rain
Christmas eve
the carousel animals
all motionless
Christmas eve
in the courtyard below
a flutter of wings
“santaDudeNeg”
Christmas eve-
the row of cut trees
no one took home
“Christmas eve/trees”: “Modern Haiku” XXIX:2 (Summer 1998)
“Christmas eve/carousel” Modern Haiku XXIX: 2 (Summer 1998)
“Christmas eve/courtyard” – “Can Collector’s Red Socks” (2003)
Christmas eve
in her pajamas all day
the youngest one
Christmas morning
a yellow ribbon
of sun
The Heron’s Nest (Dec. 2003)
“NoSantaGs”
p.s. Well, no, I didn’t quite get all those cards mailed out yesterday.
My faith in the USPS is almost total.
red envelopes
the sound
of children’s laughter
winter evening
a cafeteria tray
at the end of the slope
Comments Off on last-minute? not yet [christmas eve haiku]