There is strength in small gestures

Our law, for the most part, comes from England.  England has rather complex rules and pleadings which we have inherited.  Courts have published Rules of Procedure.  Each state has different rules and the federal courts and the DC courts have the Federal Rules of Procedure.  There is even a class in law school called Rules of Procedure.

Motions?

Motions are like a letter to the judge.  Only a Motion is more formal than a conversation.  Maryland Rule 2-311 is the rule that governs Motions.   It provides that if you want to ask the court for an order, you have to do so in writing by way of a Motion.

Say you file a Motion in a divorce.  Then your spouse may file a Response to your Motion.  You may want to reply to the Response.  The Rules do not provide for anything further than a Motion and a Response.

But in actual practice I have seen a Reply to the Response to the Motion, and then a Sur-Reply to the Reply.  A judge once told me “In my court we have Motions and Responses.  There is no such thing as a Reply or Sur-Reply.”

Why Not Reply to a Response?

You have already said what you need to say in the Motion.  So a Reply would just be repetition and repetition is not persuasion.   Saying something twice doesn’t make an argument stronger.  In fact, it may work against you.  The judge will think you’re an amateur and give less weight to your argument.

The One Time You Will Want to Reply

There is one time you will want to file a Reply.  That is when the Response raises a new issue that you forgot to address in your Motion.

Real divorce lawyers take notes!

“Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes,” the president asked former White House counsel Don McGahn, according to the Mueller Report.

McGahn responded he keeps notes because he is a “real lawyer.”

“I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes,” the president said.

The court disbarred Roy Cohn in 1986.

You have to be careful what you say.  As Cardinal Richelieu noted, “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”

Lawyers learn to take notes in law school.  I was invited to give a guest lecture on collaborative law at George Washington University.  There was one big change from when I was in law school.  I was staring at the backs of 30 Apple laptops.  I wonder if that would that have made Professor Fratcher’s lectures on reliction and dereliction any less boring?

I take notes so I can remember what was said.  I don’t want to be the divorce lawyer who can’t remember his client’s name.  As Lewis Carroll wrote in Through the Looking Glass:

‘The horror of that moment,” the King went on, “I shall never, never forget!”

“You will, though,” the Queen said, “if you don’t make a memorandum of it.”

I woke up this morning with lots of problems.  It’s the way divorce lawyers wake up every morning. Not only do I have my own problems to solve, but my clients want me to solve their problems as well.

I am exceedingly grateful for this.  For one thing, I enjoy problem-solving.  I love riddles and jigsaw puzzles and jokes that take a beat to figure out after the punch line.  I like stories in books and movies that keep giving you insights long after they are finished.

For another thing, it is self-affirming that people still need me and value my advice.  It means I still have work to do.

Also, since this is not my first rodeo, I have seen most problems before and know how to get through them successfully.

And you know when you don’t have any more problems, don’t you?

One of my first tasks as a chemical engineer at the Procter & Gamble Company was to design a tank to hold a chemical called Toluene.  I had to calculate the parameters, like pressure, volume, and flammable temperature.  I was lucky to stumble upon an unused tank on the property that would work and save the company some money.

If someone asked me at a cocktail party what I did for a living, and I said I was a chemical engineer, they would inevitably ask, “What’s a chemical engineer?”

I explained it like this.  When a chemist makes an aspirin tablet in his laboratory, he mixes some chemicals in a beaker, heats it over a Bunsen burner, and dries it in a centrifuge.   If a company wants to manufacture 10.000 aspirin, they hire a chemical engineer to scale up the beaker to a tank, the Bunsen burner to an industrial heater, the centrifuge to a bigger centrifuge.  He will also spec some conveyor belts to move the chemicals through the equipment.

This all changed when I became a divorce lawyer. Now if I’m at a party and mention that I’m a divorce lawyer, I soon have 20 people around me saying, “Let me tell you about my divorce.”

I never been able to reconcile my engineering degree with my law practice, although I feel there is a connection.  But yesterday, on the news, some pundant referred to lawyers as legal engineers.  Yes, that’s it.  When someone comes to me with a divorce, I calculate the parameters, and design a solution that works. I am a legal engineer.

When my kids were growing up, we had an inside joke.  Whenever I corrected their grammar or slang, I told them to speak the King’s English.

In today’s news, I hear of Trump’s lawyer profanely chewing out a reporter, Samantha Bee apologizing for calling the President’s daughter a profane name, and Roseanne Barr sending a racist tweet.

It  recalls to me one of J.W. McElhaney’s columns on trial practice.  When opposing counsel insults you in the courtroom, an inner voice rises inside you.  He called the inner voice Mongo.  It said, “Mongo kill!”

McElhaney would reply back to his inner voice, “Down, Mongo.”   Then he would calmly present his argument to the judge, in the King’s English, of course.

Eighty-five percent of workers worldwide, in an anonymous Gallup poll , said they hated their jobs.

I was talking to opposing counsel last week who told me that after 30 plus years of practicing divorce law, she was going to try something else.  She said that the parties were more unreasonable, lawyers were meaner and courts were harsher than when she started and she had reached the end of her patience.  She asked me if I was burned out too.

I told her that I wasn’t.  I see my work as much more than the tasks required in any particular case.  My purpose in life, the reason I am here on earth, is to help people untangle the difficulties they have gotten themselves into, solve problems and sort everything out into good order.

This works for other jobs as well.  My wife supervises the front office of a plastic surgery center.  I told her that her purpose in life was to help people look their best, add beauty to the world and make people happier.  Try reframing your job in the comments below.

Law & Politics names James J. Gross and Michael F. Callahan among Maryland & DC Super Lawyers for 2018.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. 

The tall beauty strode into my shabby downtown office like she owned the place.  I wasn’t complaining.  She had booked a half hour consult and my rent was due.

Her voice was sultry with a foreign accent.  “My husband is behaving strangely.  We never talk anymore.  He is always tweeting on his cell phone or watching Fox News.  We lead separate lives.  It’s like we are roommates.  What do you think it could be?”

Divorce lawyers are the repository of cynicism in the world.  I broke it to her gently.  “The French have an idiom.  Cherchez la femme.  It means, ‘Look for the woman’.”

Her eyes started to tear up as I handed her the box of tissues.  A gesture I had repeated hundreds of times in this office.

I read that 42% of Republicans believe President Trump has been faithful to his wife.  I’d bet dollars to doughnuts that none of them were divorce lawyers.

I could see this case calling for stormy weather and a big retainer.

 

 

“It’s a term of honor, above a gentleman, below a knight.”

Roman J. Israel, Esq. played by Denzel Washington.

Most mornings before the courthouse opened, all the lawyers and judges could be found at the Silver Spoon Diner.  Although they would soon be battling it out, there was a convivial atmosphere in the diner, among the clink of dishes and the babble of discourse.

Judge Cullen sat across the booth from attorney Clark.  Clark took some papers out of his briefcase.  “What would you do in this case?” Clark asked the judge.  “I’ve got paystubs that say the husband pays $300 a month for health insurance and a year end statement that says he paid $5,000.  Which one should I use for the child support guidelines?  Should I just use the one most favorable to my client?  Or prepare two guidelines and let the court decide?”

Judge Cullen blew on his coffee to cool it, then opined “Get the facts first.”

“What do you mean?” asked Clark, taking a bite out of his blueberry muffin.

“Does the husband have an attorney?” Judge Cullen inquired.

“Yes,” answered Clark.

“Then call the attorney and ask why there is a discrepancy in the health insurance premiums on the pay statements.”

Clark reached for his cell phone inside his suit jacket which was on a hook attached to the booth.  He dialed the number and had a brief convesation over the din of the diner.

“Well?” said the judge.

“He says the husband took her off his health insurance after the first few months of the year so the premiums went down.”

“Mystery solved,” said the judge, handing the bill for his coffee to Clark.