MEDIATING FOR SUCCESS
November 8, 2012 § 3 Comments
There’s no question in my mind that there are many cases pending in my court that should — and could — be settled by mediation.
So why don’t I order more cases to mediation? Well, to put in in blunt terms, it’s lack of faith.
In my experience as an attorney in mediation, I found that neither I nor counsel opposite had much of an idea of how to prepare for mediation, or how to prepare our clients for mediation, or what strategies and tactics we should and could use to maximize the chances for success. So that’s the source of my lack of faith.
I also found, in the few domestic mediations in which I was involved as an attorney, that there was some infuriating game-playing. In one case I had, co-counsel and I persuaded our doctor-client, defendant in a divorce, to make a quite reasonable (he thought overly-generous) opening offer. He and we took time out of a busy day to travel to Jackson for the event. We made our initial offer, and the mediator remarked that it was more than he expected. He then disappeared to confer with the other side, only to return an hour later with a counteroffer for more than twice what we had offered. We calmed our client down and persuaded him to give a little more ground toward the middle. Again, the mediator left and returned another hour later with a counteroffer more than three times our initial offer. We were negotiating apart, instead of closer together. I could go on through the increasingly frustrating day, but I can sum it up by saying that we left finally for a late lunch and decided not to return for more of that treatment. Oh, and that exercise in futility cost my unhappy client a couple of thousand dollars.
So I look at mediation in domestic cases with a somewhat jaundiced eye.
But I’m not ready to discard it. My theory is that if lawyers understood how to maximize the process, then they could use it to their clients’ benefit.
So, with that in mind, I invited attorney and mediator Lydia Quarles to do a series of posts for this blog with tips and ideas for attorneys on how to approach mediation, how to prepare your client for it, how to prepare yourself for it, and how to work with your mediator.
Beginning next week, we’ll have the benefit of Lydia’s five-part series on mediation in domestic cases.
I’ve suggested before, and I’ll repeat it here: Someone with mediation expertise should offer a CLE on how lawyers can prepare themselves and their clients for mediation, how they can make money doing it, some strategies, tactics and approaches, and how mediation can benefit lawyers’ practices. Every mediation segment in CLE’s I attended focused on what a mediator does. We know that. What lawyers need to know is how to do their job vis a vis the process.
NOT BITING
November 7, 2012 § 6 Comments
Anybody else got this email? I got it last week, complete with the Regions graphic.
It’s phony. First of all, I don’t do any business with Regions Bank, and I have no reason to have any “incoming Payments” there.
Also this language reads suspiciously like the Nigerian scam artists, doesn’t it? … “to VALIDATE your informations and wait for responds from Regions Bank ,” and “we apologies for any inconvenience.” Best of all … this is cute … it comes from a “security prevention” team. I’ll say.
Me, I’m not biting on this one. I don’t need their incoming Payment, informations or responds, or even their apologies.
This comes on the heels of a flurry of bogus Comcast “Security Alerts” emails with the Comcast logo.
| Dear Sir/Madam, At Regions Bank We are proud to announce about our new updated secure system. We updated our new SSL servers to give our members a better, fast and secure service. Due to the recent update of the servers,Your incoming Payment was placed on pending status In order to receive this payment CLICK HERE to VALIDATE your informations and wait for responds from Regions Bank . . We apologies for any inconvenience and appreciate your understanding. Sincerely,  Christopher Polumbo Regions Online Banking Security Prevention Team
The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you received this in Spam, please kindly move it to inbox. |
PLEASE GO VOTE
November 6, 2012 § 1 Comment
If you voted already, thank you, fellow citizens.
If you haven’t voted, please get off of this bleeping computer and go vote right now.
If you don’t plan to vote, or, God forbid, you aren’t even registered, shame on you.
YOUR VOTE DOES MATTER
November 5, 2012 § 8 Comments
It’s fashionable this season to be cynical about the republic and our role in it. You’ve heard it: “My vote doesn’t matter. Romney’s going to win Mississippi’s electoral votes in a landslide, whether I vote for him or against him. Why should I bother?” or “My vote doesn’t count. All that counts is the big bucks those lobbyists put in the pockets of congressmen.” or “The people we elect don’t do what they promised, so why should I keep playing that game?”
Here are a few reasons:
- Sure, one vote isn’t much, but it is what you have as a citizen. It’s your power. If you don’t exercise it, you have no power. You can’t do everything, but you can do this one thing.
- People all over the world would give everything they own to be in your place as an American with the liberty you enjoy and the simple freedom to have a voice in your own destiny.
- You owe it to the brave men and women who have spilled their blood in defense of your right to vote.
- It’s the main thing that sets our nation apart and makes us special.
- It means you are doing your part.
Six years ago I knocked on hundreds of doors and asked thousands of people to vote for me. It astounded, baffled and infuriated me to be told not once but dozens of times that the person I spoke with was not even registered to vote — mainly because he or she did not want to be bothered by jury duty. I am willing to bet that most of these individuals are some of the very same who self-righteously rail against illegal immigrants. If it were in my power, I would take away each of those non-voting person’s citizenship and bestow it on people who risked their lives to come here — many, yes, illegally — but who yearn for the very privileges of democracy that those lazy “citizens” won’t exercise.
Yes, voting takes time out of a busy day. Yes, it takes you off of your more convenient route to or from wherever you are going. Yes, it sometimes seems futile.
But it’s the one thing you can do as a citizen. It’s your little thank-you note for the liberty you enjoy.
A BANKRUPTCY BUGABOO
November 1, 2012 § 1 Comment
Bankruptcy, particularly Chapter 7 liquidation, used to be such a complicating factor in chancery court. Divorce trials were held up for years while one or both parties pursued their arcane remedies in the alchemy of bankruptcy. Contempts and modifications were brought to a screeching halt. Everyone knew and feared the “automatic stay,” even if most did not even understand its scope and reach.
And so it was that Ian Garcino, attempting to collect a divorce-related debt from his ex-wife, Amanda Noel, encountered the buzzsaw of bankruptcy and unwittingly suffered its bite.
In 2008, the chancery court awarded Ian a judgment against Amanda in the sum of $16,278, which the court ordered her to pay within 60 days. Amanda not only did not pay, but she filed a Chapter 7 bankruptcy petition.
Now, 11 USC § 523(a)(5), (15) excludes debts to spouses, ex-spouses, and children from the list of dischargeable matters. So Ian, no doubt out of an abundance of caution, penned a handwritten letter to the bankruptcy court advising the court that the debt in question arose out of a divorce property settlement between him and Amanda, and concluding that “Under applicable present bankruptcy laws this debt should not be discharged.”
The bankruptcy court treated Ian’s letter as a pleading initiating an adversary proceeding. That’s because, since 2005, the bankruptcy laws no longer require a party in Ian’s position to do anything, since the debt is in and of itself not dischargeable. When Ian filed his letter, he in essence put something into controversy that would have been beyond controversy had he done nothing.
Belatedly, Ian learned from a bankruptcy lawyer (who might have been able to give Ian some advice before he wrote the ill-fated letter) the folly of what he had done, but before Ian could take any action the bankruptcy court entered its order dismissing Ian’s proceeding due to his inaction.
Later, when Ian tried to execute on the judgment in chancery court, the chancellor granted a stay of execution finding that the debt was adjudicated to be discharged in bankruptcy court. Ian appealed.
In response to the appeal, Amanda raised two issues: One, that the chancery court lacked jurisdiction to adjudicate dischargeablility; and Two, that the bankruptcy court’s decision was res judicata on the issue of dischargeability, and was binding on the chancery court.
Judge Maxwell’s opinion in Garcino v. Noel, decided by the COA October 23, 2012, is one you should read for its exposition on the law of Chapter 7 bankruptcy vis a vis chancery practice. Here’s how the court disposed of the jurisdictional argument:
¶22. [Amanda’s] first suggested reason—that the chancery court lacked jurisdiction to make such a determination—is clearly wrong. “It is well established . . . that ‘bankruptcy courts and state courts maintain concurrent jurisdiction to decide exceptions to discharge arising under [section] 523(a)[.]’” Marvin v. Marvin, 659 S.E.2d 579, 581 (Va. Ct. App. 2008) (quoting Monsour v. Monsour (In re Monsour), 372 B.R. 272, 278 (Bankr. W.D. Va. 2007)). “Although only the bankruptcy court can decide whether to grant a discharge in bankruptcy, the effect of such a discharge may be determined by any court in which the issue is properly raised.” Burns v. Burns, 164 S.W.3d 99, 103 (Mo. Ct. App. 2005) (citing Timmons v. Timmons, 132 S.W.3d 906, 915 (Mo. Ct. App. 2004)); see also Rogers v. McGahee, 602 S.E.2d 582, 586 (Ga. 2004) (holding that “a general discharge in bankruptcy does not deprive the state court of its jurisdiction to determine whether certain debts of the debtor former spouse are exempt”) (citations omitted). [Footnote omitted]
The COA found, however, that the res judicata argument was dispositive. The court held that the four identities required for res judicata were present because Ian brought the same claim, that the debt had not been discharged, against the same party in both the chancery court and in the bankruptcy court. The court held at ¶ 26 that the bankruptcy court’s adjudication was one on the merits, making it binding on other courts.
There are several lessons you can take from this case: One is that you don’t need to blunder into bankruptcy court unless you know what you are doing and know the possible effects of your actions; Two, the burden now is on the Chapter 7 bankruptcy petitioner to convince the bankruptcy court to stay the judgment, not vice versa, so you may proceed in chancery as if there were no impediments; and Three, res judicata has teeth.
PS … as Judge Maxwell’s opinion points out, this post is relevant to Chapter 7 bankruptcy, but it has limited applicability, if at all, to Chapter 13 and other forms of bankruptcy.
THE COST OF DOING BUSINESS
October 31, 2012 § Leave a comment
It’s no secret that the rates of alcoholism, depression and suicide are twice as high for members of the legal profession than they are for the general population.
I don’t have to tell you that the stress, pressures and high stakes that lawyers deal with daily take their toll. And no lawyer, whether sole practitioner or big firm, whether trial practice or office practice, whether newly-minted or gray-bearded Yoda (or Yodette), is immune.
We’ve all seen lawyers who can no longer conceal the stress-cracks: neglected business; missed appointments; irrationality; substance abuse. None of it is pretty, and when a lawyer falls down in representing a client, it is not only the client who suffers, but also all of us in the profession.
What should you do if you feel that one of your colleagues is showing signs of substance abuse, or physical, emotional or mental disabilities? Or what if you recognize the need for help with some of your own behavior?
Make a confidential call to the Mississippi Bar’s Lawyers Assistance Program at 601-948-0989, or by email at cglaze@msbar.org. Chip Glaze is the director of the program, and he will talk you through it. More importantly, his program can intervene, and, on its own, or with the backing of local judges, get the individual on the right track. The process is informal and non-disciplinary.
Some lawyers think that when they are confronted by other professionals and the bench with issues about their substance abuse, or emotional problems, or mental health concerns, that their career is threated. That would be wrong. The fact is that not dealing with those issues is what threatens the lawyer’s career.
Oh, and judges are just as susceptible to these same problems as are lawyers. The program can deal with the judiciary, too.
WHEN VISITATION GOES BAD
October 30, 2012 § 1 Comment
It’s becoming more customary for the parties to provide in custody settlements for the non-custodial parent to have more visitation than the usual “standard visitation” (i.e., every other weekend, split of holidays, and some summer). Sometimes it works splendidly. When it does not, it can be a mess.
The latter is what happened in the COA case of Goolsby v. Crane, decided October 23, 2012. In that case, Michael Goolsby and his ex-wife, Angela Crane, agreed that Angela would have sole physical custody, and Michael would have visitation with his daughters every other weekend, and, in addition, from Monday afternoon to the return to school on Wednesday morning in non-weekend-viaitation weeks. After a while the parties agreed to deviate from the schedule to move Michael’s mid-week visitation to Wednesday-to-Friday-morning.
Things began to unravel when Angela filed pleadings to get an increase in child support and a family master increased it by $171 a month and ordered Michael to pay DHS $250 in attorney’s fees.
Michael filed a Rule 59 motion and then filed a counter-petition to modify custody and child support. He wanted the custody changed to joint physical due to the extent of his visitation, and he wanted the child support reduced based on the amount of time he had the children with him.
At trial the chancellor rejected the modification, finding that there was no proof of a material change in circumstances that adversely affected the children to the extent that custody should be changed. He did, however, find that the visitation schedule was not working, and he modified it to conform more to “standard” visitation, eliminating the mid-week visitation. His findings were based primarily on the testimony of the testimony of the 13-year-old daughter, who said that it interfered with her school work and made her uncomfortable for some other, personal reasons. The chancellor also increased the child support, although he recalculated it and found a figure somewhat less than that determined by the family master.
Michael appealed. His arguments and the COA’s conclusions:
- The court rejected the argumant that it was error for the chancellor to refuse to modify custody, and then to modify visitation. The COA pointed out that there was a substantial basis to support both decisions. All that needs to be shown to change custody is that the visitation schedule is not working, and there was ample proof here.
- The extent of visitation that was agreed did not amount to a relinquishment of control or abandonment of responsibility by Angela that would amount to a material change. The cases cited by the court beginning at ¶ 22 are cases you need to have in your repertoire of important modification cases, particularly Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990), a case I’ve discussed here before.
- And, finally, the COA rejected (beginning at ¶ 29) Michael’s argument that liberal visitation by the non-custodial parent is tantamount to joint legal custody.
When you craft an agreement incorporating visitation that extends beyond the usual, make sure the language leaves no doubt as to who has what form of custody. Don’t swap around terms like “visitation” and “custodial time.” Instead of simply going along with what your client is proposing for visitation, play devil’s advocate and tease out some of the possible pitfalls that you’ve experienced and that your client may not even have thought of. Are there other ways to provide more time for the non-custodial parent that might not be so disruptive as they proved to be in Goolsby? One size does not fit all.
THE PRESUMPTION OF MUTUAL SUPPORT
October 29, 2012 § 1 Comment
The COA decision in Pritchard v. Pritchard, handed down October 23, 2012, is the most recent alimony termination case in which the courts have addressed the rule that cohabitation creates a presumption of mutual support, shifting the burden to the recipient spouse to produce evidence that there is no mutual support within the de facto marriage.
You need to read Pritchard yourself to appreciate the scope of mutual support that was enough to trigger the presumption. I won’t rehash them here. But here are a few nuggets gleaned from Judge Griffis’s decision (which quotes Professor Bell’s treatise):
- Recipient-wife and another man had a sexual relationship, and she provided him a truck and lodging rent-free. In return, he built a deck, installed a floor, moved furniture, did yard work, and carried out the garbage. The trial court should have considered this mutual support. Scharwath v. Scharwath, 702 So.2d 1210 (Miss.App. 1997).
- A de facto marriage can terminate alimony, as where a couple was engaged without immediate plans to marry, solely to prolong the receipt of alimony. Martin v. Martin, 751 So.2d 1132, 1136 (Miss. App. 1999).
- A similar result in Pope v. Pope, 803 So.2d 499, 504 (Miss.App. 2002).
- Where the recipient spouse pays for her live-in’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, job materials, and motel room, and the live-in provides household services and chores such as maintenance and repair of the home, the presumption is triggered. Burrus v. Burrus, 926 So.2d 618, 621 (Miss.App. 2006).
In Pritchard, the COA found that the chancellor applied the correct legal standard, but that there was not sufficient evidence to support the chancellor’s decision that the presumption was overcome by proof of non-mutual support. The COA reversed and rendered.
CAVEAT: a brief period of cohabitation may not trigger the presumption. See, Tillman v. Tillman, 809 So.2d 767, 770 (Miss.App. 2002).
These cases are fact-intensive. Before you go thrashing off into this swamp, you would do well to study what Professor Bell has to say, and read as many cases on point that you can find. There has to be either cohabitation for more than a short period coupled with mutual support, or there must be a de facto marriage. The latter is a more elusive concept. You will likely need a substantial base of discovery or PI work to do the job.
“QUOTE UNQUOTE”
October 26, 2012 § 2 Comments
“The right to be heard does not automatically include the right to be taken seriously.” — Hubert Humphrey
“Continue to express your dissent and your needs, but remember to remain civilized, for you will sorely miss civilization if it is sacrificed in the turbulence of change.” — Will Durant
“If nobody ever said anything unless he knew what he was talking about, a ghastly hush would descend upon the earth.” — A.P. Herbert
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