Why I’m Proud To Be a Lawyer

Despite the poor image of lawyers, I am honored to be a member of the bar. As we commemorate Law Day on May 1, I think it is important to recognize that despite our reputation to the contrary, most lawyers are conscientious and concerned about their client’s welfare. Let me reflect on why I am proud to be a lawyer.

Illinois has a proud history of great lawyers. I am the son of one of them. My father practiced family law, and he was one of the most honorable people I have ever known. I grew up witnessing the kindness and respect he showed his clients on a daily basis. I remember his frequent phone calls at home, from clients whose children weren’t timely returned, or for more trivial reasons. I remember a call he took on Thanksgiving when I was a teenager. I knew the issue had to be important for my dad to get a call on this family holiday. My lurid teenage imagination concocted some life or death domestic struggle, probably a kidnapped child or some scandalous affair. My dad puffed on his pipe and patiently listened to the client’s plight. He told the client that everything would be fine and that he would take care of it as soon as he got to the office on Monday.

When he got off the phone, I tried to pry the salacious details from him. All he told me was that his client’s wife hid his snowmobile. This was not quite the dramatic struggle I envisioned. I told my dad incredulously that it had not yet snowed and none was in the forecast. I complained that the client should not have burdened him with such a silly issue on the holiday. He calmly told me while the issue was objectively not urgent; it was a matter of life or death to his anxious client. As my dad said, “that 10 minute call was merely inconvenient for me, but it has allowed him to relax and hopefully better enjoy his holiday during this awful period.”

This childhood memory (I‘m sure long forgotten by the client), is one of the reasons I am proud to be a lawyer. We help people–frequently during the worst time in their lives–allowing them some peace of mind during a terrifying legal ordeal. While most of us are not therapists by training, good lawyers understand that effective representation requires empathy and caring, just as much as knowledge of the law.

Our public perception is as avaricious sharks, exploiting rather than helping people. While obviously there are certain sociopathic elements in the bar, most lawyers (like my late father) are kind and caring people trying to help clients manage difficult times. If we fight, it is not because of innate irascibility–rather it is because someone is taking advantage of our clients and we want to help them. Most good lawyers are not hired guns. Rather, they are conflict managers seeking solutions.

Wisdom, patience, and responsibility are the traits that exemplify good lawyers. We are responsible, not just to our clients, but the legal system and our society as a whole. We help maintain a civilized society by allowing disputes to be resolved in a controlled forum. We advocate where necessary, but more frequently facilitate dialogue. While some malign us, there is no coincidence that in the United States, the country with the most lawyers, its citizens have the highest level of liberty and freedom.

John W. Davis, in an address at the 75th Anniversary Proceedings of the Association of the Bar of the City of New York (March 16, 1946) summed up the profession:

“True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures—unless as amateurs for our own amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

This is why I am proud to be a lawyer.

(Originally Published Chicago Daily Law Bulletin 2010 Law Day Edition)

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What is a Parent?

Every so often I stumble across some great legal writing. Here is an interesting commentary by Judge Mosk in a decision he wrote in a 1979 California custody case (In re Marriage of Carney, 24 Cal. 3d 725). The basic facts were that a custodial father became quadriplegic and the formerly absent mother sought custody based upon the father’s new physical disability. The trial court granted her custody based upon the father’s limitations.  The Supreme court reversed. The case, while 30 years old, provides timeless insights into what constitutes a parent:

On a deeper level, finally, the stereotype is false because it fails to reach the heart of the parent-child relationship. Contemporary psychology confirms what wise families have perhaps always known — that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of “togetherness” committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about himself, his relationships with others, his system of values, his standards of conduct, and his goals and priorities in life. Even if it were true, as the court herein asserted, that William cannot do “anything” for his sons except “talk to them and teach them, be a tutor,” that would not only be “enough” — contrary to the court’s conclusion — it would be the most valuable service a parent can render. Yet his capacity to do so is entirely unrelated to his physical prowess: however limited his bodily strength may be, a handicapped parent is a whole person to the child who needs his affection, sympathy, and wisdom to deal with the problems of growing up. Indeed, in such matters his handicap may well be an asset: few can pass through the crucible of a severe physical disability without learning enduring lessons in patience and tolerance.

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What will Happen to Children of Divorce?

The future of the family.   Read Noble Prize-winning economist Gary Becker’s thoughts on the topic.

http://uchicagolaw.typepad.com/beckerposner/2010/04/the-effects-on-children-of-the-decline-in-marriage-becker.html

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All Divorce Lawyers are not Created Equal

Many people seeking legal services incorrectly believe that all attorneys, by virtue of their law license, are equally capable.  The law and the profession, by their mystique, create this mistaken impression. But unfortunately, for an ill-informed public, this is not the case. Legal services  in family court are rarely commodities–uniform and routine. Especially now, in an economic climate where inexperienced lawyers are forced to handle divorce cases because of unavailable work in their area of expertise, the public needs to beware.  Sadly, and all too frequently, I have met with people who have lost custody because of bad  or unqualified lawyering.  And when they finally see me it is too late to do anything about it.  What are some of the warning signs?

  • lawyers who fail to return your phone calls. This is inexcusable and despite what they may tell you, inappropriate no matter how busy they are.
  • lawyers who don’t keep you informed about the progress of the case. You are entitled to know what is happening, if not contemporaneously, at least within a few days.  Lawyers have a duty to keep you reasonably informed and the failure to do so should be a warning.
  • lawyers who don’t clearly spell out their fees. You need to know up front what is expected. Lawyers who don’t clarify this are not acting appropriately. Along the same lines, lawyers that don’t send out regular bills are also acting inappropriately. You shouldn’t have to guess and if your lawyer does not clearly lay out your ongoing obligations, they should be fired.
  • lawyers that are chronically unprepared. We have all seen them; the lawyers who show up to court late and are rifling through their paperwork looking for crumpled pieces of paper to give to the judge. Do you think this will instill confidence in your lawyer by the judge?  Obviously not…nor should it by you.
  • lawyers that don’t care about you or are insensitive to your problems. If they don’t care about your dilema, do you really think you will get the result you deserve?
  • lawyers who never seem to get anywhere with the case. Some lawyers  always seem to be slogging through mud, getting nowhere and just getting you dirty in the process.  Consider those interminable statuses along with ever-increasing bills; and nothing ever seems to get done.  No progress is a sign of incompetent lawyering.
  • lawyers who continuously get pushed around by the other attorney.  If your lawyer doesn’t have the gumption or self-confidence to stand up and fight for you, you need to get another lawyer.
  • Irascible lawyers. Lawyers that are chronically crabby with you and everyone else for that matter, are not keepers. First you don’t deserve to be dressed down every time you speak. Handling cases is a collaboration, not a dictatorship. Next, you need to consider whether your case will end up being more contested, by virtue of your lawyers temperament. While you don’t want a pushover, a nasty provocateur does you no good either.
  • lawyers who don’t employ modern technology. What does the fact that they have no e-mail tell you about them?  While they don’t need to be IT specialists, they need to have some knowledge of  technology to  manage your case. Without it, things are not going to happen with any efficiency.
  • lawyers who make you uncomfortable. There may be no specific reason, it’s just that funny feeling you get. sometimes you just need to trust your intuition. It’s right more often than you think.

Switching lawyers can be expensive and cause delay. But not switching can be tragic. Which do you prefer?

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New Illinois Case-Division of Retirement Benefits

In re Marriage of Culp, Ill. App. Ct., No. 4-09-0605 (per Knecht) (decided March 26, 2010)

Facts:

The husband had a defined benefit plan through his employment valued at approximately $84,000 as of April 20, 1999, the date of dissolution of marriage.  The settlement agreement states the retirement benefits are to be “equally divided” as of April 20, 1999, pursuant to a separate Qualified Illinois Domestic Relations Order (QILDRO).  He contends the parties intended his former wife’s share of the marital portion to be $42,000 – exactly half of $84,000, which was the pension’s value as of the dissolution date. Because the husband was not near retirement at the time of dissolution, the trial court reserved jurisdiction for the entry of a QILDRO later. The husband argued his former wife was not entitled to any interest or cost-of-living adjustments on her share of the pension past the date of dissolution. In January 2009, the wife filed a motion for entry of a (QILDRO) including a proposed formula for determining the marital portion of Husband’s pension and dividing it between the parties.  Finding the proposed QILDRO conformed to the parties’ settlement agreement, the trial court ordered Husband to sign his consent to the QILDRO.

Question

Did the trial court err in finding Wife’s proposed QILDRO conformed to the parties’ settlement agreement and in its use of the customary Hunt formula to divide the pension’s marital portion?

Holding:

No. The parties clearly intended to have a QILDRO entered, and the trial court did not abuse its discretion by dividing the benefits using the customary formulaic approach under Hunt

Reasoning:

Limiting the wife’s share to $42,000 would allow the husband the marital portion’s entire growth in value between the date of dissolution and the date of his retirement, rendering the parties’ shares of the marital estate unequal. Accordingly, the husband’s interpretation of the agreement (that wife should receive half of the value of his pension as of the date of the dissolution of marriage, and no interest or growth) was unreasonable. The settlement does not state the wife shall receive $42,000. Rather, it lists the dissolution date for purposes of ascertaining the duration of the marriage. Both the value of the pension and the duration of the marriage are set forth to assist in the later assessment and division of the pension’s marital portion. The provision for entry of a separate QILDRO further evidences the parties’ intent to ascertain the value of and equally divide the marital portion of the pension at a later date.

Husband’s argument that the parties agreed to freeze Wife’s share of the pension at the dissolution date fails to award Wife the benefit of deferring receipt of her share of the pension until Husband retires. The court reasoned that both the wife and the husband shared in the risks that husband would change jobs or die before retiring, thereby reducing the defined benefit ultimately received at retirement. Therefore, equity requires they also share in the benefits of unforeseen increases in the value of the pension as well. Further, the wife had no incentive to delay receipt of a flat lump-sum payment at the time of dissolution.  The only reasonable interpretation of the parties’ settlement agreement is that they knew the marital portion would grow in value during the period between the dissolution of marriage and the husband’s’ retirement and thus opted to wait to equally divide the pension until its value fully matured and became ascertainable. 

The  parties’ settlement agreement used the reserved-jurisdiction approach, in which they elected to distribute the marital portion of the pension upon Husband’s retirement instead of awarding the wife her share in a lump sum immediately following the April 1999 dissolution.  Under this approach, a QILDRO is necessary to direct the applicable governmental retirement system (husband’s employer) to pay a portion of the pension to a payee other than the pension holder.  The parties agreed to divide the marital portion of the pension “equally” pursuant to the entry of a QILDRO and the trial court incorporated the parties’ separation agreement into its September 1999 supplemental order. And in 2006, the General Assembly included within a QILDRO the formula by which to divide the martial portion of a pension benefit, commonly known as the Hunt formula. In re Marriage of Hunt, 78 Ill. App. 3d 653, 397 N.E. 2d 511 (1979).

Following In re Marriage of Richardson, 381 Ill. App. 3d at 47, 884 N.E.2d 1246 (2008), it was proper to use the Hunt formula in a case such as this, in which the parties’ settlement agreement does not have a provision specifying the formula to be used in dividing the marital portion of the pension. The parties intended to divide the marital portion once the pension had fully matured, presumably at the time of husband’s retirement. The parties’ agreement merely indicated each party would receive an equal share of the marital portion, but the agreement contained no other language indicating how to value the marital portion at the time of payout.  The trial court correctly found that the parties intended to divide the pension by the “customary formulaic approach” supported by their use of the reserved-jurisdiction approach, later entry of a QILDRO and lack of language in their settlement agreement that conflicted with the customary formulaic approach set forth in Hunt.

Affirmed.

Analysis: As a matter of law, there is nothing particularly novel here. At its essence, this really is a contract interpretation case. I think the case is well reasoned. Justice Knecht used a creative and logical analysis to get to the right result.  The real lesson of the case is to make sure agreements that reserve issues clearly spell out in detail the intent of the parties. Had the agreement specifically provided that the wife would be entitled to her proportionate share of “future earnings, interest, gains or losses, etc.”, lots of attorneys fees and lost sleep could have been avoided. Prescience and careful drafting pay off!  -SNP

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Florida Case Law: Does the Recession Warrant a Do-over?

Mistretta v. Mistretta, Fla. Dist. Ct. App., No. 1D09-2049 (per Benton) Decided February 18, 2010.
Facts:
In the final judgment dissolving the parties’ marriage, entered on August 25, 2008, the trial court used October 31, 2007 as the date for determining the value of assets for purposes of equitable distribution. The trial court distributed one of the parties’ principal assets, a family business, to Appellee and ordered him to make a cash equalization payment to Appellant in an amount based largely on the valuation of the business on October 31, 2007. Appellee filed an amended motion for rehearing, alleging that an economic recession began in December of 2007 that caused the business to sustain a substantial loss in 2008 and that this “newly discovered evidence” warranted a new trial and reevaluation of the business. The trial court granted the amended motion, stating that to do otherwise might prove inequitable.
Question:
Did the trial court err in deciding to revisit the distribution of property it had ordered in a dissolution case, on the stated ground that a recessionary economy was totally unforeseen?
Holding:
Yes. The fact that the future unfolds differently than business appraisers assume cannot be the basis for a new trial on the value of a business if trials on such issues are ever to yield reliably final adjudications. Reversed and remanded.
Reasoning:
Projections of future revenues and cash flows are pertinent in assessing the value of a business. But, projections of future revenues, expenses and income necessarily depend, not only on known or knowable facts already in existence, but also on assumptions about the future that will not always, if ever, be entirely accurate. The dissent distinguished this case from the general rule applied by the majority in two respects. First, the economic downturn in this case could only have been determined after the fact and second, the recession is of historic proportions. Both of these factors, combined with the fact that the valuation involved a small family business, persuaded the dissent of the inequity of the original final judgment of dissolution.
Analysis:
This case is very timely. I am seeing the impact of the recession on divorce cases daily;  homes that won’t sell, unemployed spouses and credit problems are rampant in the new economy. I think this was a practical ruling seeking to avoid opening the door for other aggrieved litigants, claiming the meltdown materially affected their asset values. While it seems unfair to the business owner, I know he wouldn’t have sought a do-over if the business was sold a year later for materially more than the valuation. SNP

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Ways to Compensate for Limited Family Court Resources

The backlash from the 2008 economic meltdown has been pervasive. Schools are laying off teachers at alarming rates. My state, Illinois, can’t pay its bills. Courts are not immune. Limited resources will translate into more limited services. But with all problems lie opportunities. Here are some suggestions for a more efficient use of limited family court services:

  • allow lawyers to e-mail or fax agreed orders to the court;
  • allow pretrial conferences or case management conferences to be done by video conference or telephone conference;
  • mandate mandatory mediation for all matters–not just custody matters;
  • in general, a more creative use of ADR including arbitration;
  • encourage presentation of written motions without oral argument;
  • encourage “stipulated” property trials, where stipulated facts are presented to the court along with a written argument and proposed disposition;
  • A heightened sensitivity and enforcement policy concerning frivolous use of court resources;
  • Use of special masters to decide temporary or collateral matters;
  • A strict prohibition against continuances except for good cause.

Courts’ resources ar not finite. They should be reserved for matters that truly need court intervention, not  family baby sitting duties that family judges sadly undertake daily. Technology should be used more effectively to save trips to the courthouse,  thus  savings litigants  fees.  Less bodies in court will not only depressurize court, it will relieve collateral services such as security and facility maintenance.

As lawyers and judges, we are reluctant to change. But as the world turns so must we.  Let’s think about ways to improve our system in  light of dwindling resources.

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