For divorce lawyers, the breach in the firewalls of Ashley Madison is like the breach in the walls of Jericho, when the trumpets did sound for seven go-rounds and the walls came tumbling down. Soon we'll be making money hand over fist.
It's also a reminder of how silly we are when we suppose that adultery is a contract that promises mutual silence and non-entanglement, even at a time when marriage itself is less of a real contract than ever. There are so many ways for the truth to get out.
For the rest of the story, as told by Northern Virginia family lawyer, bar leader, and tech-security guru Sharon Nelson, see:
Virginia appellate court expert J. Steven Emmert put his finger on the main reason I founded this blog:
"News reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony."
Reading the fact summary in a court opinion can also be a lousy way to learn the real facts -- my father and law partner Richard Crouch used to say that when he read the opinion in one of his own cases, he could barely even recognize that it was the same case. One reason is, as Emmert writes about gov. Bob McDonnell's case:
"An appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal."
>As more single-led households emerge, the issue of free-range parenting becomes more evident. Issues abound, such as how old should a child be to walk to school alone, for how many blocks, or what age can children be left alone by themselves and for how long? We’ve even seen cases where parents have been threatened with jail if their child was overweight. Where is the line drawn between free-range parenting and neglect? Hear from our esteemed panel and special guest Lenore Skenazy, Founder, Free-Range Kids movement, as they discuss:
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."
Richmond lawyer and professor Rodney Johnson, who died last Wednesday, was one of my most important teachers, although only through his formbooks and continuing-education course. He and William & Mary Prof. John E. Donaldson gave me an outstanding model for how the content and practice of law should intersect with real people’s lives, and how lawyers should interact with legislatures. They were my first instructors in drafting, a dark and mysterious art that I care about deeply. All of their teachings affect my techniques in family law and mediation just as much as in drafting wills, trusts, powers of attorney, etc.
I still use Prof. Johnson’s forms for my wills, etc., though I have painstakingly translated them into plainer English and have made them even more modular, and even easier to customize efficiently while avoiding common revision mistakes and unintended consequences – i.e., building on his inspiration to make them even more “Johnsonian”. Documents should have the legal effect that people intend, across time, but should also be worded so that non-lawyers understand them: two goals that can be mutually exclusive, and require great effort and imagination to combine. They must be built to withstand every possible unexpected sequence of events, continuing to carry out the client's wishes even though most clients don't want to think about the possibilities. To minimize the need to go to court, or even to lawyers, to figure out what they mean. And to discourage and survive the tampering of clients who know a little bit about the law and terminology, most of it wrong, and think they know everything.
I came into law school already believing in the ideal of the Common Law as explained by Bruno Leoni in Freedom and the Law: that the law, at its best, reflects the rules of life, adapted to local conditions, which most people find fair and workable when they actually have to apply them to resolve real disputes. And that therefore, common law, forged and evolving in jury trials and judges' decisions, is better than legislation, which can be made up in a vacuum and based on ideologies and grand systems that look impressive on paper but are irrelevant to real life. What I learned from Johnson, Donaldson, and other teachers did not change that, but gave me a solid idea of how to achieve those objectives in the legal system as it actually is. Legislation about wills, trusts etc. should work so as to provide "default" rules, and rules of interpretation, to carry out what most people would want, intend and mean if they thought about it and had a chance to spell it out expressly. But also make it easy for people with different wishes to put those into effect. Legislation can be an efficient way to tweak the common-law rules, and older statutes, to make the laws and personal documents do what most people directly affected by them most often want them to do. This can and should make litigation and adjudication less necessary. It should also make it less necessary for people to hire lawyers and make or update their wills, contracts, trusts, powers of attorney, etc. Lawyers should work with legislators, as Professors Johnson and Donaldson did, by telling them what kinds of laws make things easier, fairer and more peaceful for clients and families, and what laws have had, or might have, unintended consequences; not lobbying for any particular faction based on gender, age, class, or some other special interest, but to increase everyone's welfare by lubricating the system and reducing conflict and court involvement in people's lives. That's the kinds of laws and lobbying that we heard about in law school, and it is what I and others try to to when informing legislators about the pros and cons of family-law legislation, as well.
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."
In "The Financial Costs of Going to Court – If You Get There", divorce financial planner Joan Coullahan elaborates on one really expensive part of a divorce case which people ordinarily don't think about -- the intensive, all-consuming trial preparation that happens in cases which do not go to trial, but which settle only in the last few days before the trial. (There are many other expensive phases of the litigation process, too, such as the initial "pendente lite" hearing on temporary arrangements while the divorce is going on; the "discovery" process; enforcement of "pendent lite" orders, and many other expensive sideshows.)
She then gives six major ways clients can reduce the costs -- it would be wrong to say "control" the costs because the costs are still often out of control, and depend on how much court action or other difficulty the other side, or the judge, initiates, as well as how much of it you initiate. But these are the major things that help significantly in all cases to not only reduce the costs, but to make your attorney be better prepared and organized and leave him or her more time and energy for preparation, strategy, and tactics, and for negotiating an educated, well-understood settlement which you won't regret later.
I would add, don't just give your lawyer all your financial information, but also organize it, unless of course that means that the lawyer gets it too late. The most important thing is to provide the information. But even better is to provide it and organize it. And the best thing of all is to provide it and organize it according to an organizing pattern requested by your lawyer, so that he or she will know exactly where to look for particular facts and won't have to learn your particular organizing system.