If the Buddha Practiced Law

In a controversy, the instant we feel anger we have already ceased striving for the truth, and have begun striving for ourselves. – Buddha

I found this quote while randomly surfing the internet.  At first glance, I realized how well it applied to my personal life and to my practice of law.  I thought about times when my husband and I have been in disagreement.  At the point I became angry, I had really become selfish.  I was focusing on myself instead of our relationship.  I can also apply the statement to my own lawyering skills.  There are times when I do become angry about my cases.  Now, thinking back and remembering the details, I realize that my anger usually stemmed from the lack of control over a situation; and I can admit that lack of control has more to do with me, than the case itself.  I think what this statement truly means is when you put yourself first; anger creeps in, clouding the issues.  However, I believe there are times when putting yourself first, and allowing anger in is a good thing.  If the Buddha were a divorce lawyer, I think he would have put a disclaimer on his statement, and here’s why.

More often than not, I meet with clients who are hesitant about putting themselves first.  They are usually women seeking advice about divorce.  (Sometimes this is true of men, but men seem to get angry faster).  Most of these women have been the caretakers during the marriage.  They are so accustomed to taking care of their husbands and family, that they feel guilt and sadness about contemplating divorce.  Moreover, these women are usually victims of physical or emotional abuse perpetrated by their husbands.  The most common victimization occurs when the husband has committed adultery.

When considering divorce, people need to set aside guilt and sadness.  Divorce is much like a death.  Grieving over the loss of a loved one generally occurs in five stages.  The first stage is shock and denial, the second stage is pain and guilt, and the third stage is anger.  The final two stages define a “recovery” process.

I need my clients to be stage three clients; I want them to be angry.  Now, I do not want vindictive or spiteful clients and I realize that’s a fine line; still, I need clients who are angry enough to put themselves first.  Clients who have too much guilt or sadness have difficulty making decisions.  They also tend to struggle with trying to protect themselves during the divorce process.  I know they aren’t angry enough when I hear things like, “he won’t like it if I ask him to split the visa bill”, or “that’s okay, I’ll just let him keep the $15K in the home equity”.  Now, there are times when I tell clients to cut their losses and run, which is very different from just rolling over because you don’t want to hurt their feelings!

If you are seeking a divorce, my advice to you would be to forget the otherwise profound wisdom of the Buddha, and get angry.  It’s justified, it’s healthy and it’s helpful.  It will motivate you to put yourself first, your children first, and it will most likely speed up your emotional healing…as you will be at stage 3, more than half way to full recovery!

Deontological Ethics: What??

 

Deontological Ethics:  What??

 Deontological ethics plays a huge role determining my actions, in life and in the court.  (Of course, the Alabama Bar’s opinions on Ethical Conduct are also major factors in my decision making process.)

Deontological ethics or more commonly known as deontology is derived from the Greek words, obligation, duty.  It is a type of ethics that deduces if an action is moral based on the action’s adherence to a rule or duty.  Deontology can be contrasted with Consequialist ethical theories. Consequentialism is basically the belief that the rightness of action is determined by its consequences.  These two theories boil down to this:  Did you do the right thing because it was the right thing to do (deontological)?  Or did you do the right thing because the outcome was good (consequialist)?

Immanuel Kant argued that the good thing will be determined by the good will of the person or the motive of that person. So, if a person decides to lie then it is wrong; never mind that some good may have come from it. In contrast, W.D.Ross argues that if the consequences of, say lying, turns out good that would make lying the right thing to do.

This seems like a difference without a distinction, but it’s not.  We should never lie, not as people, not as clients and not as attorneys.  So, I guess I’m a deontological.  But then again, I did just tell someone I liked their painting (my office is next to an Art Gallery) and it wasn’t true.  It was a hideous painting, one that I would never hang on a wall – not even the garage.

So, my lie – or what is more affectionately referred to as a “white lie” – had good consequences, as the proud owner of that art smiled.  Wait, because he called it art – was that a lie?…Nevermind, this could go on and on.  The truth is I lied.

But to really get to the point of all this, as an attorney, I have a job to do.  My job is to be honest with my clients despite the outcome. My honesty with the court is my job.  My actions should be of pure motive.  I never intend to be hurtful nor do I ever intend to cause harm.  However, I am a firm believer in a little harm is better than a lot.  By that I mean, I’d rather shoot it straight – watch my client squirm but know my infliction of short lived pain will save them chronic pain down the road.

I have an obligation to myself, to my clients and to the Court to be honest.  I strive to fulfill that obligation daily.  However, I find that my actions produce results which bring me harm.  People get mad at me, they think I’m stirring.  Attorneys, lawyers, sharks – whatever people call us, took an oath to protect the Constitution which brings with it a duty to zealously represent my clients.  And, if the other side doesn’t like it…then they can’t handle the truth.  I have been on the other side at times too!  Don’t get me wrong.

Going back to the ethics debate above, I think one could find a balance between the two schools of thought: white lie = good – nobody gets hurt, thus the motive is pure.  Bad lie which produces a desirable result in Court or in a settlement = not good.  What about evasiveness?  That’s for another time. 

My husband recently presented me with a plaque:  Lawyer on Duty…the truth nothing but the truth cleverly delivered.  I wonder under what theory that little gem travels?!

And Words Can Never Hurt Me.

Everyone knows the childhood rhyme, “Sticks and Stones” which ends with “and words can never hurt me.” I disagree. Whether the words are true or not, words in and of themselves can be quite hurtful. When people come to me with the desire to obtain a divorce, my first piece of advice is to watch their words. Words can be spoken or written and must always be carefully chosen. I am finding that most people don’t think about this. They can produce pages and pages of emails between themselves and their soon to be ex-spouse. They can produce hundreds of text messages exchanged in the heat of a moment. And, lastly, they are certain that there are issues, disagreements and even arguments that need to be re-hashed word for word. All of this works both ways. Just as they are handing me stacks of papers memorializing the bad times of their marriage, the soon to be ex is across town delivering the same messages to their attorney.

Emails and text messages are unique mediums. They are void of emotion and context. Sarcasm is often lost in written form as well as humor. Although, I believe that using these forms of communication can be extremely valuable for its ease of use and instant contact, electronic communication can also be very dangerous. I encourage my clients to use email when communicating with their soon to be exs or even their former spouse, but with a caveat: say what you mean, be concise and to the point. Emails and texts are great when two people can’t seem to get along yet must still communicate about issues outstanding between them, like children.

Many times people express themselves through email when they would never speak those words aloud. It’s as though once the window opens, people feel comfortable spewing words and phrases that are completely out of character. But what is written is preserved. The words never disappear. Unlike their spoken counterpart, words don’t float into memory to become foggy, they are seared onto a hard drive to be remembered just when you need them forgotten.

I tell my clients not write anything that they wouldn’t want their grandmother seeing, because ultimately, in a divorce situation, the world will see, including your grandmother, your children, and the family law judge.

Hurry Up and Wait

Taking my child to work always brings me a new perspective. On one of the rare days I have allowed my son to take a “break” from school and join me for a day, he made a keen observation: lawyers stand around a lot! His follow up question was “did you take a class in law school on how to wait?”

Lawyers do tend to stand around. Clients notice and kids notice. So why do we stand around and wait?
There are a few explanations all of which taken together create a congregation of lawyers. First of all, the dockets or court cases scheduled to be heard are jammed packed. Madison county has a high case load and not enough Judges to get everyone on their way quickly. Thankfully, Madison County will soon be adding another judge to the bench in 2010.

Second, many times it’s the only time lawyers can get together on cases. As a client, you probably have had to wait for appointment times, or returned phone calls. I can’t say all lawyers are busy, but most are. Court dates create a time where all parties and lawyers are present at the same time. This is the best time to try and hammer out a settlement. The lawyers use this time to negotiate and advocate for their client, whether it’s a civil case or criminal one. Getting lawyers and clients together is a lot like herding cats…it’s a difficult task but when it does happen, everyone should take advantage of it.

Third, sometimes cases on the top of the docket take longer than expected. Many times issues before the court when initially filed have changed – either for better or worse – and fleshing out the relevant and material evidence takes a long time. This is a good thing. Everyone deserves their day in court. Every problem a party has is important. In my opinion, a good judge allows time for everyone to be heard. However, being a good judge can cause a back up in the cases, but remember your case will be afforded the same courtesy.
Fourth, many times a lawyer gets caught in another courtroom where cases there ran long. That creates a standstill for the opposing lawyer. Lawyers do their best to notify everyone about a week before of any potential conflicts. We write a letter to the Court Administrator with copies to the Judges and all the lawyers who might be affected. The letter details our schedules for each day that we have court appearances which either overlap or could run late. Judges know where the lawyers are and when they are needed they don’t hesitate to track them down in other courtrooms by making a phone call from the bench. There is some hierarchy to cases. Circuit court trumps the lower District court, usually. If there are emergency issues in the District Court then of course the lawyer will stay and handle that matter first.

Lastly, lawyers like to talk. Many lawyers you see congregating are doing just that. They use the time in the courthouse to meet with other lawyers – either sharing ideas or simply catching up on personal and professional relationships. Many lawyers have more than one case between them. Sometimes they are between cases without time to run back to the office. Lawyers tend to be bad company for non-lawyers as we tend to discuss things that non-lawyers find boring; therefore, when we get an opportunity to talk to another lawyer about recent law changes, or court decisions we pounce – creating the gaggle of attorneys.

Most lawyers like to be in the courtroom practicing law, not waiting. There is host of other things we could be doing…like returning those phone calls as previously mentioned. For every judge there are hundreds of cases, for every case there are at least two lawyers, so after doing the math, the crowds swell. I can say as an experienced “wait-er”, it is difficult on the lawyer but I also know it’s difficult on the client. My advice is to be patient…your time will come, your case will be called and you will have your day in court, it just might not be at the time it was originally scheduled.