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
(UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to firstname.lastname@example.org. If you can't make that deadline send them anyway.)
As the proposal for mandatory pro bono reporting slouches toward the Virginia State Bar Council to be approved this Fall, others can complain about the burden on lawyers, especially sole practitioners and various unconventional lawyers. And they’ve done so at our latest Arlington bar meeting, the last state bar meeting, on my facebook, and on my last blog post’s comments section. But I think the biggest problem with any pro bono requirement is that it will always do far too little to have any effect on the problems it aims at. And this failure will eternally spark calls for redoubling our efforts, and mandates, and penalties, instead of other changes that might actually help.
Pro bono cannot even begin to mend the gap – the chasm – between what people can afford and what the legal system requires them to pay – whether they are coming to court seeking justice, or being dragged into court. We have huge structural problems that can never be fixed by more of the same work being done, whether forced or volunteer.
In some areas of the law, innovations have fixed this gap. For example, allowing contingent fees and class-action suits, to make lawsuits affordable for most people and get them lawyers who are as good and well-equipped as the big business lawyers for the other side.
But family law, my field, is an example of the kinds of law where that’s much harder. A couple generations ago we decided to allow unilateral divorce, so anyone might end up in a divorce or child custody case, but we didn’t do anything to make it affordable, and in fact many trends have combined to make it less affordable. Americans have the right to litigate everything until the cows come home, legal ethics and malpractice standards rightly demand legal advice and hyperactivity that pushes people farther apart and foments litigation, and custody cases can always go back into litigation about what’s best for a child, so costs mount up to numbers that even upper middle class people cannot afford. If hardly anyone can afford it as an individual, and it happens to perhaps almost half the population, then we can’t make it any more affordable by making taxpayers pay for it or by asking lawyers to do the work for free. And that’s without even looking at non-paying clients’ lack of rational incentives to weigh the cost of legal work when deciding how much of it, and what particular kind, to demand.
Lately there are a host of private-sector and nonprofit and governmental solutions popping up to address this need. Some have been around for a few years and become institutions. Some are court-led reforms that sacrifice traditional formalities that we used to think protected the public, so that there are other choices between self-representation and full-service, unlimited-cost, law firm representation. For example, the Virginia State Bar is launching a hotline for volunteer lawyers to answer legal questions from low-income people.
Many of the proposed solutions are scary. Some need to be embraced anyway. Some are vital but need to be molded to be compatible with the legal system and its obscure dangers and obstacles. Some really are irresponsible, leave consumers worse off than they would be without them, and should be heavily regulated or squelched. Some are downright gross.
But these kinds of changes are the only sustainable and scalable solutions to make legal help affordable for most people. Even more effective would be changes to the adjudication system so that less lawyering is needed in the courts, and even more fundamentally, so that fewer cases end up in litigation. Small claims courts are a great example of this that have been around for generations now. Even tradition-bound Virginia Circuit Courts are changing their terminology and procedures so that non-lawyers can do more to help themselves. Mediation and collaborative law, both for family law cases and other civil cases, including probate and elder law disputes, are helping but a lot more can be done. But even the substantive laws themselves too often are designed by lawyers who think that ending up in court, with a judge handcrafting a custom-made decision, is a routine part of life and is an easy all-purpose answer to questions about laws being vague, ambiguous, or leaving too much to a judge's discretion instead of being predictable. An outstanding example of changing this paradigm, and keeping millions of people out of court, is child support guidelines. But we should look at family law and other civil laws for more opportunities to streamline the interactions between law and everyday life.
I like pro bono, and I do pro bono. To help individual people and to make my own work more varied, balanced, connected, and socially just. But I do not do it to change society or make the legal system work to serve everyone’s needs. That’s impossible and would only make me crazy and permanently disappointed. When I want to work wholesale on fixing the misery the legal system imposes on families, I prefer to "go upstream" and work on collaborative dispute resolution and, further upstream, to learn how to help people improve and save their marriages; and further upstream, to avoid unhealthy relationships and establish healthy ones before marriage and babies are on the horizon.
So I'm sure I can comply with any pro bono standard the bar throws at me, but my pro bono work for clients is only pro the bono of myself, my interns, and a few clients whom I hope I can help, and their families. What I do pro the bono of the publico doesn't look like lawyering at all.
This top divorce litigator highly recommends mediation, but for reasons most of us won't talk about:
It's really refreshing to hear Atlanta divorce lawyer Randy Kessler say why he thinks mediation is "wonderful" and needed in almost every family law case that is in contested litigation or heading for it. ("High-Conflict Cases: Q&A with Randall Kessler" on familylawyermagazine.com, 9/1/15)
For me, just like for Randy, actually working as a neutral Mediator is just the tip of the iceberg. I act as a mediator in family law cases, but almost as often, I represent one person as their lawyer in a mediation that involves lawyers as well as clients and the neutral mediator. Even more often, I counsel clients who are in mediation on their own. I help them review their written agreements and their personal and legal situations before they finally sign a contract settling all the issues between them and their ex. But far more often than that, I help people through divorce and other family disputes as a negotiator and drafter, as a litigator, or in Collaborative Law, which combines the conflict-resolving techniques of mediation with the things that mediators cannot provide but lawyers must: complete, frank legal advice; loyalty and fidelity to the client's goals and interests; and advocacy which makes sure that clients' views are heard, that their interests and concerns are carefully and adequately considered in the process, and that before making any final decision, they have enough time, information, advice, and are in a mental and emotional state to understand and make such life-changing decisions safely.
I'm not a touchy-feely "new age" or "granola" mediator or lawyer, so I have always really liked Randy's style. He mentions one virtue of mediation that I always thought was necessary and should be recognized and developed, but which went against the purist therapeutic, facilitative, non-directive ideal of mediation which I was trained in over 20 years ago. Many people in disputes want, and need, to make their case for justice, as they see it, to someone who represents their community (however they define it), and/or an authority figure, or at least to someone who will understand their situation, and whom the other party will have to respect and listen to. I always thought of this aspect as "A Mediator is a Person in Your Neighborhood."
Here's the mediation part of Randy's interview:
Let’s be clear that I'm a litigator who also mediates. I did get trained 20 years ago as a mediator and I do serve a few times a year as a mediator, but I'm an advocate and often hired because people think they need to litigate.
Sooner or later, people will understand that mediation is almost inevitable in any divorce case. It's a wonderful process and it's almost necessary in every case, except when there’s domestic violence or it's clear mediation won't work. It is worth trying for so many reasons and that's why I recently wrote a book on mediation and how I feel about it. If done properly, mediation gives you a chance to settle the case, save the aggravation of litigation, and prevents you from hearing the unkind words of your spouse on the witness stand that will ring in your mind forever. It’s invaluable if you can solve the case without litigation.
There are additional secondary and tertiary benefits to mediation. You may learn something about your opponent's case that makes you re-evaluate your case, or you may learn something about your own client and realize they can't stand up to the other side. For example, if your client falls apart when the other side is present, you cannot go to trial. You may learn that the other lawyer is brilliant or not so brilliant. Maybe the most important point is that mediation allows your client to have a brief catharsis and say the things that many people feel they need to go to court to be able to say. While it might not matter to the judge what your client’s ex-spouse did to them, it matters to the client and they may not be able or willing to settle the case until they've said it to somebody besides their attorney – somebody neutral like a mediator.
Mediation and litigation are not mutually exclusive. They’re part of the process. Most judges require or urge mediation if for no other reason than they know it will reduce their calendar. If half of the cases that go to mediation can settle, there are 50% fewer cases that the judge has to handle. More than 50% of cases that go to mediation in domestic cases do settle.
Mediation is a wonderful tool. When I first started, I remember lawyers saying that they didn’t need a mediator to help settle their cases; however, fewer clients felt like they'd had their chance to speak. I could talk about mediation for hours, which is why I wrote a book on it. ...
NY's Unilateral No-Fault Law Increases Divorces 18%, Makes'em Nasty, Brutish & Long. Lawyers Mystified.
New York joined the rest of the U.S. and most of Europe a few years ago by allowing no-fault divorces that were unilateral -- not requiring a separation agreement on the economic and child-related details of the divorce -- and quick -- well, quick to start, anyway. Not so quick to finish. Now the divorce lawyers who pushed for the change are dumbfounded to discover that divorce in New York is starting to look exactly like divorce in the rest of the country, the New York Law Journal reports.
In the past, couples who lacked grounds for a divorce or didn't want to assert grounds had to work out an interim agreement and wait a year, said Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City. Rosenberg, a fellow with the American Academy of Matrimonial Lawyers and former chairman of the Nassau County Bar Association Matrimonial Law Committee, said that while he is writing far fewer separation agreements now, he is seeing more divorces—and an inexplicable elevation in hostility. "There is a proliferation of litigation," Rosenberg said. "The amount of recalcitrance and expectations which are illegitimate, the amount of infighting amongst the litigants, and to some degree amongst counsel, is from my perspective at an all-time high."
The number divorces jumped from 49,816 in 2009 to 56,382 in 2010 and 58,556 in 2012* . "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer," Rosenberg said.
"Data from the New York State Department of Health showed that in 2012, only one of every 32 divorces followed a separation agreement, compared with one in seven in the pre-no-fault era."
"Just a few years ago, separation agreements consistently preceded about 7 percent of divorces, providing a cost-effective way for unhappy couples to start dissolving their marriage and a steady source of income for matrimonial attorneys drawing up the agreements." Richard W. Cole of the Albany Law firm of Tully Rinckey said: "Previously, separation agreements were like a two-step divorce because you didn't want to fight over fault grounds. So, the parties would reach a separation agreement and wait out the year without having to prove cruel and inhuman treatment or any of those other unpleasant things that come up in divorce complaints."
Rosenberg said court system is being strained due to an influx of unrepresented litigants and budgetary constraints. The Judiciary, which has been functioning for years with flat budgets, is seeking about a 2.5 percent increase from the Legislature for the fiscal year that begins April 1.
"It is extremely burdensome on the judiciary and court staff to try and manage these cases," Rosenberg said. "If there are more cases filed, there are more cases in the pipeline and less resources to deal with them. We have judges triple-booked for trials through the end of the summer."
In Collaborative Divorce and other kinds of Collaborative Law cases, the clients and lawyers share all the evidence. Even while disagreeing fundamentally about what it means. Even if they fear it will undermine their positions. That's one of the two most fundamental elements of Collaborative Law, and sometimes the most difficult (not hard to understand, but hard to bring yourself to do).
Collaboration borrows some concepts from science and medicine, in which teams of professionals in various fields pool their information and expertise and collaborate to solve problems. A great example of such collaboration in the midst of conflict, in which both sides seek the truth from very different points of view, was reported in the Calgary Sun last week:
"One of the most important fossil finds in decades, helping to solve an evolutionary puzzle dating back 60 million years" ... "comes at the end of a backhoe operated by a man known as the greatest promoter of creationism in Alberta. His name is Edgar Nernberg, and when he’s not sitting on the board of directors of Big Valley’s Creationist Museum or actively lobbying for the inclusion of creationism in Alberta’s school curriculum, Nernberg operates a backhoe in Calgary."
Nernberg found five complete fossilized "bony-tongue fish", about 60 million years old, while digging a basement. “'No, it hasn’t changed my mind. We all have the same evidence, and it’s just a matter of how you interpret it,' says Nernberg. ... 'There’s no dates stamped on these things,' he says, sharing a good-humoured chuckle about a discovery that has him working alongside the ideological enemy. ... Thursday, the University of Calgary will officially unveil the five priceless fish, which might have been chips had Nernberg not noticed them.vIt’s bound to be a very interesting meeting of minds, as Nernberg stands with officials from the university to show off the find."
Alberta creationist Edgar Nernberg digs up what scientists are calling the most important fossil finds in decades
BY MICHAEL PLATT, CALGARY SUN
Divorce financial planner Joan Coullahan's article on "How to Avoid Sabotaging Your Own Divorce Negotiations" doesn't get into all the different ways you can screw up your negotiations once they're already going on and you're working with a lawyer. But the seven common missteps that she lists are indeed very common, and natural, things for people to do right at the beginning of the separation process. And they instantly escalate the conflict, destroy any remaining trust between you, and make your spouse believe, reasonably, that he or she must immediately fight fire with fire.
Your lawyer and opposing counsel are friends? That's a good thing! Another reason to use Collaborative Divorce.
Clients ask me about this a lot, and this article, "My Lawyer and Opposing Counsel Are Friends – Should I Worry?" by a Pensacola, Florida personal injury lawyer at idonotwanttobeyourlawyer.com, answers it very well.
A case always goes better for both clients if the lawyers are friends. Just as in sports, being friends off-the-field doesn't keep you from playing hard and playing to win. In fact it spurs it on. Many clients are suspicious of everything in the legal system, and wonder if I can advocate effectively with a lawyer who I'm friends with. Heck, yes. I don't know how you are with your friends, but being friends with someone makes me more likely, not less, to "call BS" on them when needed or even warn them if they seem to be doing something unethical.
Lawyers in a Collaborative Law group are especially likely to be friends. When I first started recruiting members to form our local collaborative group back in 2002, I went to friends of mine who weren't pushovers, who were civil, fair, creative but vigorous advocates for their clients as well as for the entire family. That is the kind of service I wanted the collaborative law group to give to clients. I knew that if the collaborative group was touchy-feely and airy-fairy instead of working out practical solutions for both clients' needs, it would reflect badly on me and would not reflect the kind of service I want to provide.
It also helps to understand that family law is different from the fields like personal injury and criminal law which give most people their impression of lawyers. Lawyers in those fields only represent one side: plaintiffs or defendants, the accused or the state. Each side has its own separate bar groups, and a significant number of such lawyers feel they have more to gain than to lose by looking like scorched-earth warriors who have no collegiality or comaraderie with the other side. In family law, nearly all lawyers represent both "sides" in different cases, however you define the "sides": men vs. women, leaver vs. left, richer vs. poorer, worker vs. drone, foreign vs. native, or as prominent Virginia lawyer Ilona Grenadier once summed up a case for a judge, "This time he's got the whiner and I've got the bastard". We deal with the same legal issues, client behaviors, and problems from all different "sides."
Collaborative Law is modern, minimally-invasive surgery for divorce. But it doesn't force a deal or punish disagreement.
"Today, surgeons deliver 'minimally-invasive' procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? Why do so many people still rely on stone knives and bear skins when getting a divorce?" Collaborative Law is the equivalent of modern, "minimally-invasive" surgery for divorce, Plano, Texas lawyer Curtis Harrison writes in "The Minimally-Invasive Divorce?" on LinkedIn.com. It lets couples privately "work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner." It's "a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues." Negotiations focus not on positions, accusations, and legal doctrines, but on people's real goals, interests and resources. Which the court system is not interested in, as it is designed for finding and punishing wrongdoing.
Curtis's article is a great overview of collaborative divorce, what it can do for you, and what it demands, with a fresh perspective. One bone to pick: I don't agree with the pejorative terms "renege" and "damages clause" for the situation in which the parties fail to reach a complete agreement and have to get new lawyers for litigation. That situation is rare, but it has to be a legitimate possibility in order for agreements to be freely chosen and sustainable. Collaboration is not a promise to reach agreement. No one is bullied into agreeing just for the sake of agreement; doing that would actually punish the more compromising person and vice-versa. (Agreements that clients feel "forced" and hurried to enter are actually common in Litigation, not in Collaboration.) Failure to reach agreement is not wrongdoing, and can still be done with mutual respect. And in my one experience with a collaborative case that "failed", it was. In that case, trying collaboration first was very good for both parties and for their litigation.
So if the Collaborative Commitment -- the lawyers' irrevocable disqualification from contested litigation between these two clients -- is not a "punishment", then what is it? It is more like a speed bump or a guardrail to keep a divorce from escalating into litigation. Now, in or out of collaboration, there's always substantial value to reaching a deal and great cost to going into litigation. The Collaborative Commitment adds slightly to that value and that cost, but honestly not much: people in heavy family-law litigation often change lawyers once or twice anyway. Lawyers are replaceable. What it really does is to give couples a way to signal to each other, in a shared vocabulary, that they are serious about negotiating a "good divorce". And they do that not with empty words about trust and good-faith, but with actions that give tangible reasons to trust each other's intentions and to behave collaboratively: contracting away the possibility of litigating with these particular lawyers; and contracting to share all relevant evidence. When negotiating with their collaborative team, they don't have to worry that the other spouse is really just maneuvering and preparing for litigation.
And that "Collaborative Commitment" is just the beginning. The lawyers and other professionals who choose this kind of practice mostly tend to be better negotiators; they often were recruited by other collaborators because they get along well with other lawyers, but not at the expense of advocating for their clients' interests; they have the several days' collaborative training and mediation training that's required for membership in their collaborative practice groups, and they continually seek additional training to do the job better. But perhaps even more important, I've discovered over my 12 years in collaboration that collaborative practitioners continually seek feedback on what works and what still doesn't work for clients, and they keep improving, innovating and simplifying to improve clients' experience of divorce.