Collaborative Art

Q: You’re a family law lawyer but you went out and got an LL.M. in tax law. Is this to supplement your regular practice? Or did you want to do something that isn’t as emotionally charged as family law?

A: Both. When [your clients are] high net-worth individuals, having an understanding of how the tax code affects partnerships and businesses sometimes makes it easier to be innovative in solutions. Alimony is a tax deduction for high-income earners. Also, I personally find financial statements, and reviewing them, and looking at issues that are finance-related, an interesting part of my practice.

 

Q: On your site you promote ADR and volunteer family law settlement. Can you talk a little about that?

A: I’m a big believer in alternate dispute resolution in divorce cases. We’re a community property state, and the creation of community property stops at the date of separation. So unlike a business, which may have growing revenues, or may have expansions—so business partners are fighting over future income streams—in collaborative divorce you try to get people to recognize that the community property has stopped as of a certain date. Certainly some assets could appreciate or depreciate. But if another patent, for example, is created after date of separation, a novel one that wasn’t in progress during the marriage, it’s going to be the product of the person who invented it. So there’s no sense to spend all of your resources fighting over a limited number of assets.

Our court system in California, and in most jurisdictions, puts children’s issues first. I’m a certified family law specialist so we have to take a number of courses in psychology and in child issues, and the literature is pretty much uniform that, if you can, avoid having the children involved in a case, and filing declarations contending that one parent or the other parent is not a good parent.

 

Q: And you’re a board member of Kids’ Turn San Diego.

A: Kids’ Turn San Diego is pretty unique. It parallels meetings. The parents are meeting, either together with counselors, or, if there are restraining orders—let’s assume it’s a very high-conflict case and there’s been abuse—they meet in separate groups. At the same time, kids meet in sessions that are conducted usually by trained marriage-and-family therapists or educators. It’s a four-session program that helps kids learn from other kids’ experiences that they’re not going through it alone. It also [teaches them] how to set some boundaries, so if the parents say, “Take a message to your dad,” they can remind them that it’s not appropriate in a divorce case. It’s sort of a Bill of Rights for kids. You don’t have to be a messenger; you don’t have to carry the check.

 

Q: What percentage of your clients access this program?

A: Maybe 50 percent of my practice involves situations with kids. Of those, perhaps 50 percent avail themselves of Kids’ Turn.

 

Q: What percentage of your cases are collaborative?

A: At this point in time, I would say 40 percent of my cases have mediators or collaborative involved; and maybe 60 percent are in the court system with some court hearings set for issues.

 

Q: How has this evolved during your career?

A: We started the collaborative group here in San Diego about … 10 years ago? But there was always some form of mediation the courts would encourage. The court system is now relying on us attorneys to help clients pick mediation or collaborative or the alternative dispute resolution model because they’re overloaded.

 

Q: What are the negatives of collaborative and ADR?

A: Sometimes people find it very difficult to acknowledge that they have to compromise until they sit in a courtroom. Divorces have a highly emotional state.

 

Q: Have you been involved in particularly emotional divorce cases?

A: Every divorce attorney has stories. I have some funny stories. The first case I was ever involved in—I wasn’t even licensed—I was working with another attorney in Chicago, and he sent me to take a deposition about a skunk. That was when you had to have grounds for divorce and the parties didn’t have children. But what happens now—

 

Q: Wait. What’s the story of the skunk?

A: I had to take a deposition over who was the better caretaker of the skunk.

 

Q: It was a pet skunk?

A: A pet skunk. So we’ve come a long distance where we’re no-fault pretty much throughout the country. But because it’s no-fault, because it’s an emotional situation, sometimes the anger is displayed through quarreling over furniture, for example, or wedding presents that have been stored in a box and never used. It’s a question of people’s expectations being shattered. They have to figure out a way to put it back together.

 

Q: Any other stories come to mind?

A: I took one client, who was alcoholic, to the treatment facility. When she came out, the divorce proceeded but it was much easier to convince the spouse to pay some spousal support because the argument he had been using—that she was an alcoholic—was no longer a valid argument. She just needed to have monies available while she went back to school. That was really emotional for me. Not only did she get treatment, not only was he willing to acknowledge that she needed some care, but it helped the children recognize that their mother was a person. It was a good family dynamic even though the outcome was still a divorce.

 

Q: How do your clients find you?

A: Most of my clients are referrals now. I started in the community doing litigation, and I met a lot of CPAs and other professionals and those are the people [who recommend me]. Then, of course, [I’m referred by] other clients who have been satisfied. Virtually no one is pleased with the divorce but some are pleased with their divorce attorney. I’m a pretty good hand-holder.

 

Q: You have an interesting voice. At what point in your career did you realize it was an asset?

A: When I started doing litigation. I was very fortunate. I graduated from law school in 1974 and there weren’t many women in litigation at that time. I ended up in the U.S. attorney’s office in Chicago and was thrown into the courtroom. I was in the civil division, doing a lot of trial work, and you had to learn to talk to people and listen to people. You put a witness on the witness stand and you need to hear what they’re saying to make sure you can ask the next question.

 

Q: Did you go through different phases? Right now your voice is soft and quiet. It almost forces people to lean forward and …

A: … listen. Correct.

The other part of it is: Women can’t be strident. I’ve been married for 35 years. My husband only listens to me when I’m talking in a pleasant tone of voice. Most people prefer that. It’s respectful. That’s important to me—to try to be respectful to the person I’m dealing with. It’s very helpful in the divorce context. Every once in a while I will raise my voice, but it’s not productive. People stop listening to you.

 

Q: So what drew you to the law?

A: My first year in college I worked in Capitol Hill [in Washington, D.C.]. I was pre-med but politics fascinated me; and most politicians were lawyers.

I was fortunate to work with a litigating attorney in Lancaster County, Pennsylvania. John Beyer was a courtly gentleman who had a wonderful career behind him—he was in his 60s—who took me on as a protégé and took me to court, and let me watch him and help him.

In law school [in Chicago], I had the opportunity to work for Phil Corboy, who was one of the pioneers in several areas of the law, including products liability. He was a bluff Irishman who could appeal to a jury. The federal rules were changing and he was president of the ABA. I was helping research for speeches he wrote. That’s how I got interested in doing federal law.

Then I went to the U.S. attorney’s office. I was one of the attorneys who defended the FBI in the Black Panther case in Chicago—the death of Fred Hampton—spent 15 months in a courtroom and learned to like courtroom work. Most people don’t have 15 months of being in the courtroom. The person who performed the autopsy [on Hampton] had also performed the autopsy on President Kennedy so I got to meet him in Dallas. For a beginning lawyer just out of law school, you know, it was a case that taught me a lot.

 

Q: What did it teach you?

A: When you’re in front of a jury, you learn to look at the cues the jury is giving you as to whether or not they’re paying attention, and how they’re paying attention, to what’s being done in the courtroom. There were a great many attorneys [in the case], so you’re watching other people and seeing what’s effective in terms of presentation. I’m a big believer in exhibits—even in divorce cases. You can talk in the courtroom but a good diagram or flow-chart is critical.

My parents are both retired doctors, and I have a bit of a medical malpractice-type background from Corboy’s office; so I got to do the poisoning part.

 

Q: Poisoning?

A: There was an allegation that Fred Hampton had been poisoned. So when I went out to private practice, that was helpful, too. I was doing organophosphate-pesticide poisoning cases and you have to learn the testing techniques. Organophosphate is a neurotoxin. [People who are exposed] develop symptoms like tingling in the hands and the feet. So the defense from the chemical companies was that [such people] were either hypochondriacs or hysterical. And when I started meeting all the psychologists and doing that part of the case, it sort of flows into child custody cases.

 

Q: And that’s how you got into family law.

A: Also because I was pregnant with twins, and my husband said, “You cannot do any more contingency cases, you’ve got to take on more areas of practice.” Well, I didn’t have to, but it flowed.

 

Q: What’s the best advice you received?

A: In law school I had a professor, Soia Mentschikoff, and she was a big believer in being prepared and looking at not only the beginning of your argument but logically where it led, and making alternative arguments. Flexibility. Her concept was you have a flexible mind and to look not only at your perceived path but what the other side is going to be arguing or saying. She was big on using case law to develop your position because every case is a new case but it’s an old case as well.

 

Q: Meaning it has precedent?

A: Even though there’s a past ruling, there’s always novelty. Especially in family law, the facts are almost always unique. So you have to look at the past precedent but you also have to look at the facts that you’ve got and what can you do with those facts and the law.

 

Q: During your career, beyond the technological, what are some of the biggest changes you’ve seen in the practice of law?

A: Juries’ expectations, in terms of proof, are now fed in some part by what they see on TV. And in most pieces of litigation, the parties don’t have the resources and the ability to marshal the evidence they do on TV.

The second thing: When I first started practicing, you could spend a day or two or even three picking a jury in a complicated case. Because the courts are so impacted and need to move the cases along, the process, every part of the process, is speeded up. Jurors also want to get to the end more quickly. Now when you give a closing argument, you’re fortunate if you have an hour or two. Attention spans in general are perhaps not what they used to be.

Finally, when I first started practicing, there was a certain formality in the courtroom that has diminished over time; and there are many more persons who are representing themselves in the courtroom.

 

Q: In family law or …?

A: Especially in family law. If one looked at the filings, I would expect that 60 percent of the persons are representing themselves. With assets not increasing in value, and in some cases decreasing in value, people perceive that they can’t afford attorneys; that if they spend money on attorneys they’ll have nothing left.

 

Q: Has business dropped off during the global financial meltdown?

A: I’ve found that to be true. I think people have postponed making certain decisions. They’ve recognized that you can’t live in two households on the same income. Especially with the foreclosure problems, where the value of what used to be the most important marital asset has diminished.

 

Q: Anything you’d like to add that I haven’t asked?

A: One of the questions asked of family law attorneys is: How do you handle the fact that when people on a daily basis are in your office and they’re unhappy with themselves and where they are in life? What I’ve come to appreciate is there’s a measure of collegiality among family law practitioners. We’re all facing the same emotional issues in the practice. So you come to appreciate your fellow lawyers. And because the bar is smaller, you come to know more of the family law bar than you would if you were in the civil litigation field, as I was in. So your reputation becomes more important.

 

Q: Does this mean there are family law practitioners you try to avoid?

A: [Pause] There are certain family law attorneys who you know, if they’re on the other side, it’s going to take longer to compromise—if you’re going to compromise. You know the attorneys’ fees might be more than they would normally and you can prepare your clients for it. It’s true in almost any field. There are certain civil litigators who employ a scorched-earth policy for awhile.

 

Q: What is it you love about family law?

A: Family law is one of the unique fields where you can actually help people to envision and work toward a better next six months, next year, next two years. Civil litigation is often about events leading up to an event, a major crisis, an auto accident, so you’re focusing only on the past. In family law, if you can help people focus on: OK, our goal is to separate but also to maintain family unity. You feel like you can bring some life experiences [to the problem], as well as the fact that other people have gone through this torment—and it is torment—and come out feeling better.