Write Like a Lawyer: The Magic First Sentence

The purpose of this blog article is to give you some tips on how to begin to write like a lawyer.

You don’t have to be a lawyer to write like one. In fact today’s tip will inform your business letters and even your regular social writing.

It will clear the cobwebs and confusion away and allow you to clearly state what you are trying to say.

You correspondence will begin to sing. Your reader will be nodding their head in agreement by the time they get to the end.

Usually I end up deleting any first sentence I write which does not include this phrase. We all have a tendency to begin our writing with what I call verbal throat clearing before we get down to the point.

Even if you decide not to use it, once I reveal it to you, it will still improve your writing if you only think of the words.

What is the magic first phrase every email, text, or letter should begin with?

“The purpose of this letter is”

/by James J. Gross

Think Like a Lawyer

“I’ve attached a markup of your draft letter to my wife’s lawyers,” said the email from Mark to his lawyer.

Matt, the lawyer, thought of his client as a great guy and a great client who pays his bills on time. He is intelligent and interesting. He is in the real estate business and very successful.

But he is also a control cowboy. He is successful in business because he takes control of his environment.

Matt wrote back to Mark, “Clarence Darrow once said the Congress does us the least harm when it is NOT in session. Like Congress you are getting in the way of yourself.”

In Congress, you can send a draft to a colleague with one of two messages:

(a)  for review and comment, meaning “your changes are welcome”, or

(b)  for review and approval, meaning “approve as written and don’t change a word.

I am resending my draft, unchanged, for your review and approval.”

Next, I’ll give you the tips the lawyer gave Mark on how to think and write like a lawyer.

/by James J. Gross

Divorce and Retirement Savings

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In many divorce cases, the parties overlook the most valuable assets in their marital estate.  No, its not the house.  Retirement accounts are frequently one of the larger assets to be addressed as part of a divorce. Sometimes the account is through one spouse’s employer. Often, one spouse contributes directly through their payroll.

When it comes to this issue, I have good news and bad news for clients. First, the bad news.

In Marriage Income Is Not Mine Nor Yours

Many clients will believe contributions to the retirement account came from their income and therefore should not be a shared asset. Not so.

Unless you had a “Jim-Gross-Bullet-Proof-Prenup” when you got married, the law considers all property acquired during the marriage to be marital property. Retirement income is marital to the extent it is earned during the marriage.  There is no my savings when you are married.  It is all our savings no matter who earns it.

Now, for some good news.

Dividing Retirement Accounts Is Not Always 50-50

To determine who gets what when it comes to retirement accounts, the split is not always equal.

Retirement accounts can be part marital and part non-marital.

The balance of a 401(k) or an IRA and other defined contribution plans at the date of marriage is pre-marital and therefore non-marital property.  So are the interest, dividends and appreciation.

The division of defined benefit plans is more complicated than that and will usually require an actuary to value.

/by James J. Gross

Checklist: What goes into my marital settlement agreement?

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Details, details. Getting the best results from your divorce is often a matter of addressing all the right details. There are many issues to consider as you define the right marital settlement agreement.

Over the years, I have developed some checklists to help clients make sure they answer all the important issues.

This checklist covers some important items that need to go into your settlement agreement.

Children

[x] Where will the children go to school?

[x] Who will decide if they go to public or private school?

[x] What about tutors and extra-curricular activities?

[x] Who will decide about the need for the children’s medical and dental care?

[x] What doctors and dentists will they see?

[x] What medications will they take?

[x] Who will decide if they need braces, cosmetic treatment, or therapy?

[x] What religion will the children be raised in?

[x] What will be their last names?

[x] Who will give consent if they want to get married or join the armed services before age 18?

[x] Who will select a lawyer if the children have a lawsuit?

[x] Where will the children live most of the time?

[x] What will be their routines at each house, for homework or television or going to bed?

[x] What will be the schedule for timesharing or visitation?

[x] What will the schedule be for each week, holidays, vacations, and summer?

[x] What will happen to these arrangements if one parent relocates?

Child Support

[x] How will the financial needs of the children be supported?

[x] Who will pay child support and how much?

[x] Will it be paid directly to the other party by personal check or through a court order?

[x] Will it be paid once a month or twice a month or every two weeks and on which day(s) of the month?

[x] Will it be adjusted each year for inflation or not?

[x] When will child support stop?

[x] Who will pay for health insurance?

[x] What about uncovered medical expenses?

[x] Who will pay for day care and summer camps?

[x] What about extra-curricular activity expenses like piano, soccer, ballet, or karate?

[x] Who will pay for religious celebrations, weddings, or automobiles?

[x] How will college expenses be handled?

Note: The court always has the final say on child custody, visitation, and child support. It cannot delegate this authority to the parties or a third party mediator or arbitrator. The court can consider the opinion of the parties and third parties, and often follows these recommendations. However, the court must make its own decision based on the best interest of the child. And the court can always modify custody, visitation, and child support if circumstances change and that would be in the best interest of the child.

Alimony

[x] Is any type of spousal support needed

[x] How much and for how long?

[x] Should there be a cost of living escalation?

[x] When does spousal support terminate?

[x] Is it modifiable or non-modifiable in the future?

[x] Who will pay the legal fees for the divorce?

[x] Is there life insurance to secure child support and spousal support?

[x] What about health insurance for each spouse?

Property

[x] What will happen to the marital home?

[x] If it is to be sold, when will it be listed for sale, at what price, and when?

[x] How will the sales proceeds be divided?

[x] If one spouse buys the other one out, what is the price and what are the terms for payment?

[x] How will you deal with the mortgage if it is in joint names?

[x] Who will draft the deeds and pay the costs for transfer?

[x] What happens to the automobiles, household furniture, furnishings, jewelry, clothing, and other personal items?

[x] How will bank accounts and stock be divided?

[x] What happens if there is a family business?

[x] How will retirement funds be divided? Will there be a survivor annuity and who will pay for it?

[x] Whose lawyer will draft the court order for dividing retirement funds and who will pay for it?

Taxes

[x] Will you file joint or separate returns?

[x] Who will prepare the returns or pay for their preparation?

[x] Who will get the tax credits and head of household tax status for the children??

[x] Who will pay if there are taxes due?

[x] How will a refund be divided?

[x] What happens if there is an audit for past years?

[x] Who will pay any taxes due on sale of the house, stock, or distribution of pensions?

 

Agreeing on these details now can save you a lot of additional legal proceedings down the road.

/by James J. Gross

Divorce, Adversity and Depression

Divorce, adversity and depression often arrive together. Here are some thoughts to help.

Depression is real. I know, I’ve had it.  I can tell you it’s like catching a cold. It hits you suddenly without warning and there’s no “snapping out it”.  You just have to wait for it to run its course or talk it out with a therapist or take some medicine to cure it.

Adversity is part of life. We all have to deal with it.  It is one of the Laws of the Universe. It is the Bear that Bill Cosby said is waiting for you on the fourth curve of the 400-meter track. That’s the last one before the straight-away where you’re supposed to turn on the jets and sprint to the finish line. But the Bear climbs on your back. And he’s carrying a refrigerator.

We grow through adversity.  Think of life as Adversity University.  Only you don’t know you are in a school or what you are learning until later. No adversity equals no growth. It will always be coming at you.  Adversity will always be saying your name while doing pushups on you. You can’t get rid of it.

But you can overcome it with the right tools,  Here are some of the tools I use to deal with the Bear.

Gratitude List.

Write down all the things in your life you are grateful for, like your education, your friends, your smart brain, your family. Also, living in America where you have rights, and not in Russia, North Korea, China, Syria, or Ukraine, or for that matter Mexico, South America, Africa.  Add on your interest, hobbies, things you enjoy day-to-day, and so on.

Gratitude Journal. 

Write down three things that happen to you each day that make you feel good.  Like I had a good breakfast or I finished a task or a good social interaction.

Mantra.

Adopt your own personal slogan or tag line and say it every day.  Here are some of mine. Ichange it from time to time when I find a new one I like.

“I’m having a great day.”

“Sic Parvis Magna”

“Easy, breezy, Parcheesi”

“Don’t sweat the small stuff  – and everything is small stuff”

 “I dance, I  fall, I get up. I keep dancing.”

“Per aspera ad astra”

Purpose.

Mine is to help people with legal problems like divorces, to love my wife and be a good father. Nothing will make you lose the blues faster and forget all your troubles than helping other people with their troubles.  It takes a while to find your purpose. I didn’t find mine until I was in my forties. Or, rather, my purpose found me.

Believe me, you are here for some purpose, and when it finds you, you will know because it will take over your life and pull you out of bed in the morning without hitting the snooze button

Friends.

As I look back on my almost three quarters of a hundred years, I find the most valuable thing I made is friends.

/by James J. Gross

Can My Sister Be on the Call With Us?

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“You did my sister’s divorce,” the caller said. “And she was very happy with the result.  “So now I need you to do mine.”

I put my phone on speaker.  “Ok, I replied turning to my computer to take some notes. “Let me ask you a few questions.”

Then she asked me, “Can my sister be on this call with me?”

The Attorney Client Privilege

Whatever you say to your attorney and whatever advice your attorney gives you is confidential and privileged. You may have seen in the news recently that former Vice President Pence is asserting some similar privileges to keep from testifying against former President Trump. What the privilege means is that your attorney will keep any advice and discussion with you secret and no one can drag it out of us – not opposing counsel, the judge, nor even six white horses.

The Practical Effect

The purpose of the privilege is to allow people to speak freely with their attorneys without fear that their conversations may be made public. This privilege covers you as well as your attorney so you don’t have to answer any questions like, “What did your attorney say?” or “What advice did your attorney give you?”

Attorneys watch for these type of questions. If you hear us say, “Objection!”, stop talking.

Attorney Client Privilege Waiver

The librarian gives the new students a tour of the library on the first day of law school that usually begins, “The laws are on this side of the library, and the exceptions are on the other side.“  The main exception to the attorney client privilege you have to worry about is waiver.

Attorney-client conversations and advice remain confidential and privileged so long as you discuss them only with your attorney  That is why you can expect opposing counsel to ask you fairly early in your deposition if you have discussed the case with anyone else besides your lawyers.

If you have, the next  questions will be “What did you discuss?”  Then, “What did you say and what did  they say?”  If you talk about conversations with your attorney with anyone else, whether in person, by email or otherwise, opposing counsel will claim you are not treating the information as confidential and privileged. And, whether you meant to or not, you will have waived the privilege.

If the judge agrees you have waived the privilege, opposing counsel can ask you what advice your attorney gave you, such as trial strategy, and you will have to answer.

Even Worse

If you waive the privilege for one little confidential fact, the judge can find that to be a global waiver of the privilege for everything in the case.

/by James J. Gross

The Three Phases of Divorce

I break a divorce into three phases. This approach helps clients know where they are in the divorce process, for timing and budgeting purposes. This breakdown also helps clients understand all of the components that can be expected in the divorce process.

Phase 1: Initial Pleadings and Hearings

This phase typically includes:

  • Complaint
  • Answer
  • Counter-complaint
  • Preliminary motions
  • Financial statement
  • Initial hearing
  • Scheduling order
  • Parenting classes
  • Mediation
  • Pendent lite hearing.

Phase 2: Discovery

In the second phase, these activities are common:

  • Interrogatories
  • Request for documents
  • Request for admissions
  • Notice of deposition
  • Third party subpoenas
  • Deficiency letters
  • Motion to compel
  • Motion for sanctions
  • Opposition to motions
  • Hearings on discovery motions

Phase 3: Trial

It can be surprising just how many steps it takes to get to the actual divorce trial. In this third and final phase, these are typical:

  • Trial preparation
  • Pretrial statement
  • Pretrial hearing
  • Joint property statement
  • Exhibits
  • Direct and cross examination questions for client and witnesses

Settlement discussions proceed simultaneously with the litigation process. A case could settle at any time.

/by James J. Gross

Help! Just Found Out Divorce Mediation Is Tuesday!

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“Just found out divorce mediation is Tuesday afternoon!!!

Help! I’m nervous

What do I do?!

What do I say?

How do I dress?

How do I act?

What questions should/shouldn’t I ask?

Give me all tips/advice you all have please! ”

— Nicole’s post on Facebook

Advice for Handling Divorce Mediation

Nicole:

Everybody is nervous in a divorce. In fact I’d be nervous if you weren’t nervous. But here’s a tip that will help you calm down and give you more confidence during the mediation.

Write the main categories to be decided down the left side of a piece of paper. These will be your rows. The main categories are child custody, child visitation, child support, alimony, property division, and legal fees. You can expand on this by adding subcategories.

For example, under visitation, you might have subcategories of weekly schedule, holidays and summer vacations. Under property division, you would have the big ones, like house and pensions, as well as bank accounts, automobiles, and furniture.

Next, make three columns labeled best, middle, and showstopper. Fill out your objective in each row and column. This will make you think about what you really want, what you can live with or without, and what will make you walk out of the room if you don’t get. It also help you know what to say.

It doesn’t matter so much how you dress but I would suggest business or business casual will make you feel comfortable. Act firmly but politely. Remember you are there to problem solve, not to blame or assess fault. You can ask any question you want. Let the mediator take the lead.

You don’t have to reach an agreement if you don’t think it is fair. But as the mediator will probably tell you, you will save a lot of time and money if you do.

 

/by James J. Gross

Liquidated Damages – Tips for Settling Your Divorce Case

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“Simplify.  Simplify.”  — Henry David Thoreau

Divorce negotiations can feel like Whack-A-Mole. There are so many issues. And they are interconnected so if you change one the others change. For example, if alimony goes up, child support goes down. One tool I have in my divorce toolbox is liquidated damages. That means reducing disputes to a dollar amount.

A Typical Scenario

Let’s say I represent a husband in a divorce. He moves out of the marital home into an apartment and the wife still lives there. She wants to know who is going to pay the bills until they reach an overall agreement or the divorce judge decides at trial. She worries he will cancel her health and auto insurance.

The husband has his own expenses to pay now and wants the wife to pay her own living expenses.

Each spouse is angry and feels the other is to blame for the separation.

Liquidated Damages Offer and Demand

After some back and forth with opposing counsel, I suggest we convert the various disputed issues into a single dollar amount.

I ask opposing counsel how much money the wife is requesting each month. This is the “demand” because it is the amount the wife is demanding the husband pay.

Then I ask my client how much he is willing and can afford to contribute to the wife’s expenses until we settle or go to trial. This amount is the “offer” or the amount he is offering to pay the wife to settle.

Ceiling and Floor

Now we have established a ceiling and a floor for settlement negotiations.

Next we try to negotiate a liquidated damages number somewhere between the offer and demand.

This simplifies the dispute and takes some of the emotion and blame out of negotiations. The parties are also able to bring more certainty and stability to the future and plan their budgets accordingly.

/by James J. Gross

The Handshake Snub

You don't have to have contempt for the other in a divorceAs I watch the President refusing to shake the Speaker’s hand, and the Speaker tearing up the President’s State of the Union address, they remind me of my divorce clients who have nothing but contempt for their soon-to-be-ex’s.

When I was in the army, there was a saying. Respect the uniform even if you don’t respect the man (or woman.) Both the President and the Speaker need to show respect for their offices even if they don’t respect each other.

These are not the role models I want for my children. I remember my father taking me to his job one day and teaching me how to shake hands with someone I meet.  “Always stand up,’ he said. “Look them in the eyes and put out your hand. Give them a firm handshake and smile.”

I’m from Missouri, where people are friendly and say “Howdy, neighbor” to strangers. If you refuse a handshake, you will get a bad reputation and people will not do business with you.

I worked for an older lawyer who was unfailingly polite to everyone he met, from the president of the bank to the janitor for our offices. He would smile, look them in the eye, put out his hand, and inquire about their spouse and children.

One day we had a deposition. The lawyer on the other side was young, handsome, and articulate. He wore an expensive suit, with cuff links and a tie pin. The older lawyer put out his hand toward the younger lawyer and introduced himself. His hand hung there in the air for several awkward seconds. I suppose the younger lawyer wanted to prove to his client that he was an aggressive advocate for him, but to me it just proved that he lacked basic civility.

It is possible to be both polite and aggressive at the same time. There are studies that show you get more in negotiation if your opponent likes you.  You actually can get more bees with honey than vinegar. A kind word (or deed) turneth away wrath.

 

/by James J. Gross