"Ignore the clickbait headline and actually read this," my friend Bonnie Algera writes. How right she is.
A study of federal judges finds that they don’t just rely on facts and legal precedents when making decisions
This NY Times Magazine article is about much more than
We started this blog because of journalism's abysmal failure to exercise basic skepticism, objectivity and diligence when covering family law, and especially hotly contested cases about children. So we are delighted to give credit where credit is due. This story reports the good and bad about both parents, but only as far as it goes, without making assumptions or just buying one parent's story wholesale. And yet it still tells you enough that you feel you know the story as well as anyone who wasn't involved in it could, but with a healthy recognition of, and respect for, the unknowns.
By Jacob Maslow in The Global Dispatch
-- Just one thing: "Custody Battle Nears End" is so often premature. Besides all the appeals, etc. that people can do in any court case, people can go back to court, claiming that something's changed, until the child turns 18. A few people will keep fighting after that, over collection of fee awards, disabled adult children, and other unusual issues.
What's going on in Virginia's pro-bono-reporting controversy was illuminated for me by a recent interview with law professor Richard Epstein, known for many things but first for his monumental works on Strict Liability and Eminent Domain.
"... We're now entering into a compliance culture, where if you do something wrong, the sanctions are always draconian. So you (A) have to have somebody to fix it so you don't get punished. And (B) you have to have all your ducks in order so that if something goes wrong you have all sorts of defenses ... So the compliance culture essentially requires industry concentration ... If you double the size of a firm, you don't double the size of your compliance costs. And so one of the things that Obamacare has done is that it has led to a wave of hospital and industry mergers in an effort to minimize compliance costs thereby creating higher levels of market concentration, which leads to monopoly power."
Maybe that's why Virginia Lawyers Weekly reports that of the public comments the state bar received on mandatory pro bono reporting, the favorable majority overwhelmingly came from lawyers at big firms and legal aid agencies. I don't mean that this is big-firm lawyers' motive, but it's why the load of compliance isn't an issue for them, and is a big issue for small-firm and solo lawyers. Also, the rule lets firms concentrate their pro bono time in a few lawyers, so they can undertake big, time-consuming cases for the poor. That's a very worthy adaptation to the rule, IF there should even be a rule in the first place. And I suspect many bigger firms already keep track of all their lawyers' pro bono and extracurricular time, so they can put the results in press releases.
The proposed change only requires lawyers to fill in a number in a "How many hours" blank once a year when renewing their membership and paying their dues to the mandatory Virginia State Bar, which licenses and regulates lawyers. There's a lot more that advocates for the poor's legal needs might want to know to make the information more useful -- what kinds of law do you practice? Which of the many kinds of work listed in the Definitions section do you do? Do you do the pro bono through other institutions or just through your law firm? What needs do you think are out there? Any other ways you could work to meet them? What gets in the way of doing that?
So the Bar only asks lawyers this one short, innocent question, about your free-will offering of humanitarian good works, where the only wrong answer is no answer. (Or an answer that's not a number of hours.) But it makes lawyers awfully apprehensive when it shows up asking that little question but loaded for bear, bristling with hooks, nets, expulsion devices, license-grabbers, long lists and cross-references. Not in a survey like the ones the Supreme Court and Bar already send out, but as part of membership renewal, in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ? If lawyers wonder exactly what hours they should include in the number, they need to look up the lists of definitions and alternative means of compliance (which the proposed change will lengthen) in Professional Responsibility Rule 6.1 and, especially in its Commentary. To find out the rules and penalties for not reporting or late reporting, they must look at Bar Organization Rule "19. Procedure for the Administrative Suspension of a Member." And it does it, not in a survey like the ones the Supreme Court already sends out, but as part of membership renewal and in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ?
Just another cumulative annoyance in the process of what Virginia's great writer Florence King called being "nibbled to death by a bureaucratic duck".
Quotation is from Page 2 of
Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases
"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s disability checks.
“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.
"Kaine said, 'I learned a lot from Diane.' including the responsibility of law practice and that what a lawyer does really matters.
“'And I also learned a critical lesson that served me well throughout my career— whatever the issue seems to be at first, look deeper. The marriage lawsuit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.
The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:
At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weaknesses but have to embrace and own them as a natural part of being human. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”
Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mysteries, can make you strong.”
He closed his remarks with a promise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a person. And they will change you too,” he said.
Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job
Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:
- It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
- It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property -- is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'
"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education. ... Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year. Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...
"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation. Even [for them], law schools were not great in teaching statutory interpretation. I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982. To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...
"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."
Like most lawyers, I have good and bad recollections of my own legal education. I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure. The former taught us “the law” from uniform statues that were already in the process of major revisions. The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.
-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016
Carl Forsling repeats several often-heard, and quite true, observations about how the military is bad for marriage, plus some insights that are original but intuitively very convincing once he points them out. Which explain why it's also so hard on divorce.
"Divorce — it’s no stranger to those in the military. At the same time, the military is a very tradition-minded institution, so divorce is often treated like the family secret no one talks about. ... some commanders have very black and white attitudes in regards to marriage. ... surprisingly prevalent in an institution where divorce is commonplace. The military attracts strong personalities, and they tend to either be very religious with very traditional views of morality or very not."
Very true. I'm more familiar with the strong personalities who are very non-traditional about marriage -- well, they may be traditional and sentimental about it in some ways, but in ways that get them married five times and divorced four times, if they're lucky. And hopefully with a divorce between each marriage. Or divorced early and married never again. Sometimes getting taken advantage of royally, as they see it, in their first divorce, and then becoming determined that next time, and every next time, they will be the ones in the relationship with the power, the knowledge, the leverage and the manipulation. Whether that's in a divorce or in devoutly unwed cohabitation.
On the other hand, there are many who are honorable and generous to a fault. Or who want what's best for their kids even if it isn't best for themselves.
Many, whether honorable or manipulative, are gung-ho and unashamed of whatever course they're pursuing, in divorce, adultery or whatever. If they're war veterans, they usually have a sense of entitlement, understandably. The military rightly tells them that they and their jobs are important, and that the civilian world should accommodate them. They may see divorce and other family breakups as just part of the petty civilian-life BS that the military requires them to take care of, but that could never be compared in importance to their mission or their careers.
And yet again, there's another side of this: Timid careerists who are always looking over their shoulders. Junior officers who are expert at creating paper trails to shift blame and responsibility to others, and who think that will work for them in family court.
I've only recently begun to see the very religious and neo-traditional officers and servicemembers the author talks about, but I know they have been out there for quite a while now.
He has a refreshing point of view on a practice that is widespread, widely advised, encouraged by regulations, but which also can make civilian courts get really mad at spouses and treat them like stalkers who are trying to destroy the careers they have benefited from:
"On top of that, some hurt soon-to-be former spouses have in the past called up commanding officers and sergeants major, and in today’s “pro-family” military, those leaders usually picked up the phone to an earful of often highly exaggerated drama. Sometimes those senior leaders rightfully take it with a grain of salt. Other times, service members get chewed out or worse based on the spouse’s account of events that may or may not have happened as described. ... Many units now have “human factors” or “commander’s safety” councils, wherein members’ personal lives are aired out in the name of “safety.” Guess who gets talked about in those? In today’s environment, where the phrase “perception is reality” is too often said without irony, too many service members end up with their reputations tarred."
(That's not just "in the past", by the way.)
As for two well-known factors that weaken military families, he describes them freshly and eloquently:
"Service members often marry young. Part of that is the rapid maturation the military forces on people, part of it is undoubtedly bad decisions based on housing allowance rates, and part of it is ironically likely the military’s old-fashioned views on marriage. Whatever the reason, marrying young is not a good indicator of matrimonial success."
"Add in the deployments, long hours, etc., and things don’t bode well for military couples. There are some marriages that thrive despite the challenges — as those in the military are fond of saying, 'What doesn’t kill you makes you stronger.' For others, though, what doesn’t kill them severely damages their relationships."
Another factor Forsling doesn't mention: The continuing reluctance to seek mental health treatment for reputation and career reasons. That has been a huge problem in many of my cases.
The military has made a big push to be more family friendly in recent years. ... As it tries to be better for traditional families, it needs to improve the culture for non-traditional ones, as well."
That's so true. Our society needs to understand that being pro-family means strengthening intact nuclear families, but also honoring all family bonds and strengthening what's left of "broken" families too.