The Family Law News Blog

Principles of Editing -- By Richard Edelin Crouch

One of the unexpected treasures I found when cleaning out our storage room when my dad retired.

 

Where did we get those old law books? It's quite a story. It starts when Washington was president ...

These law books have been handed down from lawyer to lawyer, including:

Richard Henry Lee, 1732-1794. Justice of the Peace, Delegate to the Virginia House of Burgesses and the Continental Congress, signer and leading proponent of the Declaration of Independence, President of the Continental Congress 1784-85. But most importantly, he did more than anyone to ensure that a Bill of Rights was added to the Constitution. He bought and inscribed some of these books for his son, Francis Lightfoot Lee II, 1782-1850.

John Janney, 1798-1872, was a Quaker, Unionist lawyer in Leesburg, Virginia. Among his many great works was the successful defense of free-born Underground Railroad conductor Leonard Grimes of Leesburg. He was almost President: in a pivotal Virginia Whig caucus, he tied with John Tyler on the first ballot for the 1840 vice-presidential nomination. Henry Clay said, “He is the first man in Virginia and has no superior in the United States.” He was a delegate to the 1851 Virginia Constitutional Convention, which tried to heal the breach between eastern and western Virginia, and President of the 1861 convention that he hoped would preserve the Union. It swung in favor of secession when Lincoln called for troops to march against the South. He then had the bitter honor of formally giving Robert E. Lee charge of Virginia’s forces.

“Squire” Lawrence Bowers, 1810-1901, was called that because he was a local magistrate in Boone’s Creek, Washington County, Tennessee. He helped found the Boone’s Creek Academy. Ralph Waldo Crouch, Sr. was his grandson.

 Matthew Harrison, 1822-1875, was a Leesburg lawyer, known in the legislature as “The Loudoun Lion”.

The Rev. Alexander Broadnax Carrington, 1834-1912, from Charlotte Court House, Va., studied at Washington College and practiced law, but then chose the Presbyterian ministry. He was chaplain of the 37^th Virginia Infantry under Stonewall Jackson. His final pastorate was at Greenwich Presbyterian Church in Nokesville, Va.

Landon C. Berkeley and James P. Harrison of Berkeley & Harrison were prominent Danville, Va. lawyers in the late 19^th Century.

E.S. Oliver, owner of our French Code Napoleon, was a New Orleans lawyer and businessman in the mid-19^th Century. He won Lavillebeuvre v. Cosgrove, about the right to reopen a boarded-up window through a common wall between two properties, under the French version of easement law, called “destination du père de famille.” He lost a case against his agent for letting a debtor pay him in Confederate money and investing it in Confederate bonds, because he didn’t complain when he heard about it, thinking he could “sit on his rights.”

Samuel Ferguson Beach, a Connecticut-born Alexandria lawyer, city councilman, and banker, lost a Northern Virginia congressional race in early 1861, then filed a challenge to election practices at Ball’s Crossroads, now Ballston. He was a leading member of the Constitutional Convention for the "Restored Government of Virginia," and unionist Northern Virginians elected him to Congress, which refused to seat him. He represented the Lee family of Arlington House, and other former Confederates, in Virginia and U.S. Supreme Court cases overturning the wartime seizure of their land. He won Colston v. Quander, upholding a Fairfax marriage that was illegal when made because it was between a slave and a free Negro. In other cases he argued for upholding a law preventing free blacks from testifying against whites, and that Congress’s return of Alexandria and present-day Arlington to Virginia was unconstitutional. He helped lead efforts to give black Virginians voting rights, and was appointed United States Attorney for Virginia. He was once co-counsel with future President James A. Garfield.

Samuel McCormick, 1849-1937, son of Justice Francis McCormick of Weehaw, briefly served in the Confederate Army, then studied law at the University of Virginia, where he owned these books, and then at Washington College, now Washington & Lee University. He was an honorary pallbearer for Robert E. Lee. He was a lawyer, farmer and businessman in Clarke County, Virginia, and was Court Clerk there from 1904 to 1912. 

Joseph J. Darlington, 1849-1920, was a leading Washington lawyer, citizen, prize pig breeder, and president of the City Orphan Asylum. He taught law at Georgetown University, and gave Ralph Waldo Crouch, Sr. a copy of his treatise on The Law of Personal Property. They were neighbors in Herndon and commuted together on the W&O.D. Railroad. A memorial to him at Judiciary Square has been criticized for its utter lack of resemblance to him.

Ralph Waldo Crouch, Sr., 1881-1968, was youngest of ten children of a Baptist preacher, and his inheritance was one horse, which he sold to buy a ticket to Washington to seek his fortune. He did a variety of jobs, including streetcar conductor, and went to school at night while raising a growing family. He graduated from Georgetown Law in 1912, and was a tax lawyer and estate-tax auditor for the U.S. Government, commuting by train from his in-laws’ farm in Herndon. He later joined Crouch & Crouch, practicing in Arlington and Richmond. In retirement he moved back to the farm his great-grandparents had settled in the late 1700s in Boone’s Creek, Tennessee.

George Edelin, 1891-1938, Georgetown Law 1918, joined Julius Peyser’s general and administrative-law practice in Washington, D.C., where his early work included U.S. Supreme Court cases. He was a law professor at the University of Maryland.

George J. Schultz, 1885-1961, earned doctorates in law, medicine and divinity, and was a law professor at the University of Maryland. He married George Edelin’s brother’s widow. After his death his law books were entrusted to her goats, in his barn in Hyattstown, Maryland, until Richard Edelin Crouch retrieved a few of them.

John Walter Edelin, Jr., 1905-1980. His naval career started on President Coolidge’s yacht, where he assisted the President in an unannounced amphibious landing at George Washington’s birthplace, to fierce combat in the Battle of Peleliu, to the military governorship of the Palau Islands.

John W. Jackson, 1905-2006, was a legendary Arlington prosecutor and lawyer. He taught trial skills at the George Washington University Law School. In semi-retirement he was still an eminence and mentor to everyone in the office suite of John Perkins, where Richard Crouch had his first full-time law office after leaving Family Law Reporter.

Howard Wade Vesey, 1906-1969, was a Washington lawyer who later moved to Santa Barbara, California where he was also a real estate developer. He died in a plane crash and his wrongful death case ascended as high as the federal Ninth Circuit Court of Appeals.

Thomas Gordon Crouch, 1910-2004. His practice with Crouch & Crouch in Arlington and Richmond emphasized tax, business, probate and estate planning law. A dedicated hunter, fisherman, sailor and Shriner. He led the funding and organization of the restoration of his great-great grandfather Jesse Crouch’s log house.

Leroy E. Batchelor, 1926-2012, served in World War II, including the Battle of Iwo Jima, and the Korean War. He was a criminal defense and general practitioner in Arlington. He represented Arlington County in a school desegregation case. He once argued before the U.S. Supreme Court. An accomplished seaman and boating instructor, he retired at 62. He and his wife spent much of the next two decades at sea.

Jack L. Melnick, 1935-2013, was an Arlington/Falls Church legislator, prosecutor, civic leader and lawyer. In the legislature, he led the effort for a crime victims’ compensation fund. He taught at George Washington University Law School. He restored and drove a Model A Ford. His probate and elder law practice continues with his son, Paul Melnick.

The Hon. W. Richard Walton, Sr., b. 1938, is a civic leader, former prosecutor and retired Common Pleas Court Judge in Ironton, Ohio.

Thomas W. Murtaugh had a general, criminal, juvenile and family-law practice in Leesburg, Virginia. He represented people from all walks of life and excelled at presenting the human reality of his cases in everyday terms. He was gentlemanly and kindly to a fault. Richard and John Crouch learned much from him. He gave us John Janney’s books when he moved to West Virginia, where he practiced occasionally but is now fully retired.

Bill Findler 1948-2007 was widely admired as an Arlington lawyer, but even more as a Washington-Lee high school track coach, pillar of the church, and father of five. When he died suddenly after a morning run, his obituary on the sports page of the Northern Virginia Sun quoted John Crouch: “He was a leader for all of us. He was strong and honest. He told it like it is. He dealt with every situation with humor and integrity.”

Bryan Garner is a leading authority on legal writing and drafting. He redrafted the Federal Rules of Civil Procedure and several similar sets of rules, edits Black’s Law Dictionary, and wrote several books on legal writing, including two coauthored with Justice Scalia. It’s a stretch to include him here, because I don’t have a book from his personal collection; he gave me a copy of his Black’s as a sort of party-favor for answering a question right in a seminar. As I look up to him as a life-changing guru and kindred spirit, I cling to it like Dobby the House Elf clung to his employer’s discarded glove.

Richard Edelin Crouch, b. 1940, is a prolific lawyer, author, and activist.  He had a military, criminal, civil liberties, public interest and general practice before limiting his practice to family law and legal ethics and malpractice, and especially international and interstate family law. At the same time he edited BNA’s Family Law Reporter and other publications, then the Virginia State Bar’s Family Law News, and several family law books and practice guides. He is now retired.

Sorry, America, you're not sharp enough to safely have affairs, or computers -- @JenniferWeiner

Jennifer Weiner is a first-rate writer, bestselling novelist, old-style newspaper journalist and Princeton grad who gets dismissed as "chick lit" because she chooses to write about something that was long one of the main subjects of Literature but is now considered "Romance" or "Young Adult" -- the mating and marriage habits of young-to-middle-aged people who are fairly normal, at least compared to most characters in Literature. For those of us who aren't up for one of her novels right now, she shows off what she can do in:

The Ashley Madison Hack Shows We’re Too Dumb to Cheat

 By Jennifer Weiner, New York Times, AUG. 20, 2015

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. ...

From: "High-Conflict Cases: Q&A with Randall Kessler" on http://familylawyermagazine.com, 9/1/15.

Randy's book is How to Mediate a Divorce.

How the Real "Mad Men" and Women Lived and Raised Kids -- And We Should, Too

The best-written version of something many of us have known for years. More proof that “humorists” are the most serious, effective social critics and practical philosophers.

Dave Barry: The Greatest (Party) Generation

Raising children wasn’t always an all-consuming job. Humorist Dave Barry on his parents’ wild parties and the grown-up escapades of the ‘Mad Men’ era

By DAVE BARRY*

Looking back, I think my parents had more fun than I did. ... [Read More]

_____  

*Article originally appeared in Wall Street Journal, 2/26/15, adapted from Barry's new book, 

Live Right and Find Happiness (Although Beer is Much Faster): Life Lessons and Other Ravings from Dave Barry

Healing Separations, Controlled Separations: Can they save marriages?

I was a toddler when the no-fault divorce revolution really got going, but I heard a lot about divorce and separation from a very early age. People used to separate for a time, to work on their marriage or just to find out what it would be like to be apart, and then get back together. Of course, many separations would start out with that idea, and then become permanent, and sometimes it looked like one spouse intended that all along. Nowadays, a marriage-saving separation is a pretty old-fashioned idea and separation generally means eventual divorce. With divorce laws now being "unilateral", an agreement to a temporary or conditional separation isn't legally binding, and the further apart people get, the more everything around them conspires to pull them further apart.

 

But some experts have been designing a more durable, productive form of the old model of "trial separation". I have seen an agreement about a "Healing Separation", and I've heard considerably more about "Controlled Separation". From reading the book by its inventor, Lee Raffel, and hearing her talk about it at a Smart Marriages conference, it sounds like a very promising model. I asked Smart Marriages founder Diane Sollee about it, and she said, "It has helped so many couples, and many therapists said they loved using it." Jen Abbas deJong has collected the stories of five couples who separated and reunited in stronger marriages.

 

The Great Divorce: It's About Deep Choices

In an ordination sermon at my church today, Bishop James Magness, Bishop for the Armed Services, talked about C.S. Lewis's little book, The Great Divorce. He shared some amazing insights, some of which I couldn't discern through his accent. But it reminded me what an important book this is. Even if you're like me and you tend to avoid theological or philosphical authors even when they're very popular, perhaps especially when their real popularity is in some other area, you won't choke on this one: it's extremely short, and it's fiction, though full of truth. 

What does this have to do with the kind of divorce I work with? Sorry, some divorces are not as bad as others, but I don't know of any that have been "great." And yet, on reflection, the most important thing about this book is also the most important thing about the path of divorce. The Great Divorce is about human beings making choices, choices that are bigger than life and death. And about even more people not making, and refusing even to recognize, choices.

In the greatest divorces, people learn, usually with difficulty, that they are responsible for making their own choices; they take counsel and time to see, as clearly as they are able, what the consequences would be for them and for others, and they take responsibility for their choices and the consequences. They do so in a way that respects their own needs and inherent value, and also those of the other family members and the professionals and institutions they work with. When they stand for their choices rather than avoiding them or pretending that someone else made them, they more often make choices that integrate with other people's choices and needs.

Some of my clients' best actions and decisions have been in Collaborative Divorce, but not all of them: in marital reconciliations, in conventional settlement negotiation, in mediation, and in litigation, both in victory and defeat, in resolving issues, and even sometimes in deciding to leave them unresolved and unpursued, clients can give a divorce lawyer glimpses of greatness.

Vast gulf between divorce in our culture & in real life - NYT

The Divorce Delusion By HEATHER HAVRILESKY, NY Times Magazine

 

Legal divorce should come after BOTH spouses' "emotional divorce"

Divorce really sucks (a view from the trenches) Part III : "Psychological Impact Of Marital Dissolution On The Nuclear Family - or

Divorce Wars/Legal Strategies and Myths", by Dallas-FW-area divorce lawyer Mark Nackol

This article has a very good point, although it's bound up in a lot of legalese, not in a way that makes it hard to understand. It explains why a divorce goes a lot better once both parties have reached emotional acceptance of the divorce and taken responsibility for their own partial fault. For even more on this see Aftermarriage — The Myth of Divorce by Boston divorce lawyer Anita Robboy.

This is one more argument for waiting periods of about two years for divorce, whether fault or no-fault, although the author does not get into that.