The Old School Lawyer

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The Old School Lawyer

As a thoroughly modern divorce lawyer, I am at my computer, marking up a Marriage Settlement Agreement and emailing it first to my client and then to opposing counsel to get their comments (in different colors) on my draft. It was not always thus. I used to be an old school lawyer.

My First Word Processor

My first word processor was a spiral notebook and a point pen in law school before every student had an apple laptop, tablet, and cellphone connecting them to the world wide web. I learned how to take shorthand and how to type, first on a manual, and then on an electric typewriter.

The keys went “clickity-clack” and a bell rang “ding” when you got to the end of the line. Old school lawyers remember that rhythmic music that got faster and faster when you pounded out that motion to strike evidence as “fruit of the poisonous tree” at a break in the middle of the trial.

Carbon Paper and White Out

Every old school lawyer had a box of carbon paper. You put a piece of carbon paper that left black smudges on your hands; your white-cotton, button-down shirt; your white seer-sucker suit in the summer time; and your fancy tie that your Aunt gave you last Christmas. You put the carbon, smudgy side down, between two pieces of typing paper and rolled them into the typewriter.  The carbon made a copy on the bottom sheet.

When you made a mistake, you had a little bottle of liquid white out which was like a white paint that came with a little brush on the cap so you could paint over and then type over your mistakes. You also had to lift the carbon paper and correct the copy without getting smudges all over it.

Big Leaps Forward

Thankfully we made big leaps forward in word processing. We thought it was a miracle when someone invented an electric typewriter that could remember what you typed. Talk about artificial intelligence!

The genius of this machine was that you could write your firm letter to opposing counsel on it, then retype only the words that needed correction or revision, then push a button and the machine would type out a perfect letter automatically. All you had to do was reload the paper.

Even better, it could type out as many perfect copies as you needed automatically — one for your client and one for the file. No more carbon paper.  No more smudges on your red power ties.  But sadly, no more “clickity-clack ding”.

Next we got copiers and a nifty word processor from Xerox. Old school lawyers thought the Xerox word processor was the cat’s meow because it had a little screen on it about four or five words long on which you could correct your mistakes. How short-sighted we were.

[TO BE CONTINUED…]

/by James J. Gross

Wound Too Tight

Does it seem to you like people have shorter fuses these days?  Have you noticed people are losing their tempers more quickly, frequently and over smaller things?  A lawyer hung up on me the other day. That’s certainly not the first time, and won’t be the last, but I was only halfway through my second sentence when she hung up.  And they weren’t long sentences.

Divorce in The Crazy Years

Divorce is always stressful, and divorce litigation is a form of civilized combat. But I’ve noticed recently that people are forgetting the the civilized part. People are losing it. They are short-tempered, impatient, disrespectful, and rude. What is going on?

I believe the stress of current events is driving people bonkers. This is the beginning of what science fiction writer Robert A. Heinlein calls The Crazy Years in his future histories.

The Headlines Are Driving Us Crazy

I’ll tick off the news headlines this morning while you check your blood pressure:

  • Covid changed our lives, sent us home, killed 750,000 of us, shut down our businesses, schools, events, social life, travel and the economy, and left us arguing about masks, vaccines, unproven “cures”, and social distancing.
  • Epic floods, fires, earthquakes. droughts, hurricanes, mudslides, cyclone bombs, melting ice caps, and other extreme  climate catastrophes as a result of global warming.
  • Wealth inequality, soul-crushing student debt, Inadequate child care and elder care, crumbling infrastructure, rising prices for food, shelter, and transportation.
  • Fights over women’s rights, gun rights, voting rights, critical race theory, increasing violence in our cities, and hostile, angry encounters on airplanes, and school board meetings and our capital., and a gridlocked congress.
  • A former, and possibly future, president who has legitimized and popularized the big lie, insults, name-calling. boorish and immoral behavior, revenge, avarice, disrespect for our constitution, laws, traditions, system of checks and balances, the free press, our nation’s heroes, and who promotes lawlessness, violence and insurrection.

You can see why people are feeling stretched to the breaking point.

One More Turn

It reminds me of those balsa-wood model airplanes we used to play with as children. We turned that red plastic propeller to wind  the rubber-band motor as tight as we could so it would fly high and long. So here we stand with nerves and spines as tense and twisted as that rubber band.  We are ready to soar high and long.  But if one more person turns our propeller even a little bit, we may snap and go spiraling onto the the roof.

[Author’s Note:  Our law firm philosophy is that a constructive approach to cases, and a respectful approach to clients, lawyers, and opposing spouses in divorce cases best serves our clients.  We fight fire with water.]

/by James J. Gross

The Thin Man’s Divorce

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“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

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The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

/by James J. Gross

The Wages of Sin – Chapter One

Inspired by characters created by Arthur Conan Doyle

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Sterling Holt is hands down the best divorce lawyer in town. My name is James Wright. I have the happy task of chronicling Holt’s cases for a program broadcast by the local radio station.

The day started in the Easy Café where all the lawyers, judges and reporters gather each morning over coffee to trade tips and the latest courthouse gossip. I was in a booth with Holt calling the police and hospitals to check for overnight accidents and arrests for the morning newscast, while Sam scrolled through emails on his iPhone. A comely waitress, Janette, a thin, dark, long drink of water, put our coffee cups down on the table.

Holt dropped two sugar cubes into his coffee and stirred, “Janette seems to have found a new boyfriend.”

“Why do you say that?” I asked.

“She wore the same jeans and shirt yesterday, so she spent the night at his house, and didn’t go to her house to change. There is usually a stray hair from her Golden retriever on her clothes but this morning there was a hair from a Himalayan cat. From the text books on top of the shelf behind the counter and her age, she is a student at the local college and  her new boyfriend is a professor, probably married.”

“Good God, Holt!” I exclaimed. “You’re amazing.”

“Time to go.” Holt announced as he practically lept from the booth and threw his tweed coat over his lean six foot frame.

“But why?” I asked. “I’ve not even tasted my coffee yet.”

“The game is afoot!” shouted Holt as he disappeared through the café door.

 

 

/by James J. Gross

Is Your Lawyer a Psychopath?

Experts say that psychopaths comprise about one percent of the general population. Studies have shown, however, that a higher percentage of psychopaths are attracted to certain professions. For example, about ten percent of chief operating officers are psychopaths (no wonder you didn’t get along with that boss).

Now, Kevin Dutton, a psychologist at Oxford, has ranked the top ten jobs with the highest and lowest rates of psychopaths. You can already guess which profession came in second with the most psychopaths.

The list of jobs with the highest rates of psychopathy

  1. CEO
  2. Lawyer
  3. Media (TV/Radio)
  4. Salesperson
  5. Surgeon
  6. Journalist
  7. Police Officer
  8. Clergy Person
  9. Chef
  10. Civil Servant

The list of jobs with the lowest rates of psychopathy

  1. Care Aide
  2. Nurse
  3. Therapist
  4. Craftsperson
  5. Beautician/Stylist
  6. Charity Worker
  7. Teacher
  8. Creative Artist
  9. Doctor
  10. Accountant
/by James J. Gross

Divorce Motions — When to Reply to an Opposition

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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.

/by James J. Gross

Real Lawyers Take Notes

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.”

/by James J. Gross

Solving Divorce Problems

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?

/by James J. Gross

Legal Engineer

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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.

/by James J. Gross

The King’s English

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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.

/by James J. Gross