Recent Blog Posts in June 2010

My last Blog entitled, "Empathetic Family Law Attorneys" explained the unfortunate reality that while lawyers tend to "lack sensitivity to human, emotional and interpersonal concerns," in the field of divorce/family law , such attorneys cause a great deal of damage to families.

In an article entitled, "Divorce and Your Emotional Needs:  What You Should Know to Survive Your Divorce", Dr. Deborah Hecker states, "Most of the literature on the psychology of divorce treats divorce as the death of a relationship...."  In fact, in "The Emotional Stages of Divorce", Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. mention that, "[t]he emotional impact of a divorce is as severe as that of a death in the immediate family...,” including "the loss of a spouse through death."  As expressed by Ellie Wymard, Ph.D. in "Men & Divorce", "Anyone who has mourned the death of a spouse may not appreciate the comparison, but death and divorce share similarities....  According to bereavement experts, when a man's wife dies, the mourning husband will come to the other side, and ultimately say, 'She is dead and is not coming back.'  But when it comes to divorce, certain aspects of loss become slightly magnified.  Cathleen Fanslow Brunjes, Bereavement Coordinator' for Hospice Care of Long Island, New York, made the distinction by saying, 'Bear in mind that with divorce there's not a body to mourn.  It's disenfranchised grief.'" 

In her article, Ellie Wymard, Ph.D., states, "Any experience of loss, regardless of what it is, carries with it similar issues that need to be resolved."  The following are some examples "of the losses that are part of a divorce:  loss of companionship, loss of financial security, loss of a sexual relationship, loss of time with children, loss of an extended family, loss of status as a married person, loss of self-esteem, loss of friends, etc."  As expressed by Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. in their article, "Although it's painful, grief is a healthy emotional response to the loss of an important relationship."

In "The Impact of Loss and Grief on Effective Co-Parenting," the authors point out that "There are five stages to the grieving process.  These stages are denial, bargaining, anger, depression, and acceptance.  These stages are extremely applicable to divorcing and divorced parents, divorcing persons in general, and to those parents who were never married and experienced a dissolved relationship." 

As stated in "The Emotional Stages of Divorce," "Experiencing guilt and shame is also a normal reaction to the end of a marriage....  We know that for many individuals, guilt and shame can be so painful that they change very quickly into other, more tolerable feelings, such as anger or depression -- often without the person's even knowing that the guilt and shame are there.  This is why it is common in divorce for each partner to blame the other and why it can be so difficult for divorcing partners to accept responsibility for their own part in a failed marriage....  Guilt can cause spouses to feel they have no right to ask for what they need in a divorce, causing them to negotiate unbalanced, unrealistic settlements they later regret....  Similarly, shame often transforms into blame, anger, or rage directed at the spouse."

In their article, Pauline H. Tesler, M.A., J.D. and Peggy Thompson, Ph.D. note, "The wide array of emotional states that many people experience during the early stages of the divorce process can diminish their capacity to think clearly, impair their judgment, and make rational decision making difficult or impossible...."  "Grief is like a storm that can sweep you off your feet leaving the person lonely, confused, and dazed."

Due to the grief caused by the death of a spouse, it is generally recommended that "In this state of vulnerability this is not a time to be making major decisions that you may regret later. Try to avoid making major decisions at least for the first year after the loss."  Although the grief experienced as a result of a divorce is similar to that caused by a death of a spouse, "both our court system and our culture at large encourage us to take action in divorces based on how we feel when we are at the bottom of the emotional roller coaster, when we are most gripped by anxiety, fear, grief, guilt, and shame.  After all, that's when most people are moved to make the first call to a divorce lawyer.  As a result, people are encouraged to make shortsighted choices based on emotional reactions that do not take into account anyone's long-term best interests."

As I stated in my article entitled, "'Pit Bull' Attorneys and Family Law", "Many people hold the unfortunate belief that when they become involved in a lawsuit – including divorce - they need to find a lawyer who is a "fighter," or "pit bull" (i.e., like the dog bred specifically to fight other dogs). Since legal disputes are adversarial by nature, the logic seems to be that an aggressive attorney will more successfully advance one's interests in court.  By logical extension, a lawyer who is not ruthlessly aggressive would be a suboptimal choice.  However, I would like to point out that strong, proactive, and even aggressive representation does not necessarily equate with the "pit bull model." Attorneys classified as pit bulls often tend to be belligerent, argumentative, and eager to fight. What the public does not realize is that highly contentious individuals (attorneys included) usually place self-interest above all else. It should be obvious that always looking for more points to fight over, and even taking unreasonable positions on behalf of their clients, generates significantly more money in fees for the lawyer who charges on an hourly basis. Moreover, such attorneys tend to derive a great deal of pleasure from the fight in and of itself.   In fact, many attorneys enter the field precisely because they enjoy argumentative confrontation, and tend to be disagreeable and difficult people in general.  'Pit bull attorneys' are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness....  Such attorneys are focused on 'winning,' no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

My last blog entitled, "The Cause and Effect of the Historical Shift in the Role of Attorneys" explained that a lawyer's role in peacefully resolving disputes ended in the 1960's, when individuals began pursuing the practice of law seeking wealth and power rather than to address social issues and to help people.  The personality characteristics of those entering the field of law changed in accordance with that shift. 

According to a June, 1997 article from the American University Law Review entitled, "Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism", "Lawyers' relationships with their clients and with the public likely suffer as a result of lawyers' preference for introversion, thinking, and objective analysis, compounded by a lack of sensitivity to human, emotional, interpersonal concerns. Lawyers' preference for introversion suggests an indifference to their outer world, including other people, and their preference for thinking implies a cool, impersonal attitude, both of which suggest that they may not relate well to other people, including their clients. There is recent evidence that lawyers are actually more like engineers than they are like nurses or teachers, being logical and unemotional, yet unlike engineers, in that their work is inextricably involved in interpersonal conflicts and issues.  These lawyer attributes, although they may be adaptive for the practice of law because they allow the lawyer to avoid feeling unduly emotional about his or her clients' cases, may be maladaptive in the client counseling part of legal practice.  One might conclude that lawyers should become more emotional, partial, compassionate, and interpersonally sensitive.  However, there is evidence that humanistic, people-oriented individuals are the least satisfied lawyers."

The article refers to a suggestion by Leonard H. Churmir, Ph.D. "that law schools, large law firms, and judicial appointments committees might consider motivation testing in order to place or direct law students, new lawyers, and politically appointed judges, respectively, and ensure that they will be 'good fits for the position.'"  I found this suggestion of great interest because recently and prior to learning of that suggestion, I had a conversation with a colleague wherein we discussed "the mental state of the attorneys and how their own personalities can interfere with resolving cases."  I told her that "an attorney's own personality was pivotal in potentially having a negative effect on the people they serve" and that before being granted a license to practice law, applicants should be required to undergo some sort of motivation testing.  I recognize and appreciate the fact that the United States is a free country and that the possibility of requiring such motivational testing is unlikely.  However, my area of practice is family law and the potential negative effect that lawyers with a "lack of sensitivity to human, emotional, interpersonal concerns" cause a great deal of damage to families and the children of those families are innocent victims.  That damage is sometimes irreversible and otherwise can take a great deal of therapy to reverse.   

In an article entitled, "Divorce and the Client's Emotional Needs: What Every Divorce Attorney Should Know", Dr. Deborah Hecker states, "Although divorce lawyers do not need to be trained psychotherapists to represent their clients successfully, they need to do what they can to reduce conflict and promote a divorce environment that helps their client remain focused, calm, and goal-directed. An empathetic divorce attorney can see through the anger, greed, and grief and not allow it to impede a successful legal resolution....  A divorce attorney who understands the psychological stages the client is experiencing can better promote adult behavior and provide quality legal resolution."

In 2002, the Section of Litigation of the American Bar Association prepared a report entitled, "Public Perceptions of Lawyers Consumer Research Findings". Among other things, that report found that "some consumers feel that lawyers do more harm than good.  This is particularly true of people going through a divorce.  They say that divorce lawyers can exacerbate an already difficult situation....  This idea does not just come from the media.  Personal experiences bear it out." 

After the discussion I had with my colleague wherein we discussed the mental state of attorneys, she published an article entitled, "Family Law Attorneys Can Make Or Break Your Case".  In that article, she references our discussion states, "My colleague made a great point. The more I do this, the more convinced I am that choosing the right attorney is one of the most important decisions you can make."

Historically, a lawyer's role was peacefully resolving disputes, not creating them.  A reversal of that role seems to have occurred as a result of a change in the type of individuals entering law school.  According to a June, 1997 article from the American University Law Review entitled, "Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism", since around the 1960's, "individuals who chose to enter law school have a low interest in emotions or others' feelings."  In 1984, in response to this change, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said, "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.  To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected."  Chief Justice Berger also stated that "The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts."  When he made those remarks, Chief Justice Berger was approximately 76 years old and had personally witnessed the change in the legal profession. 

I was recently involved in a case in which I was retained to defend my client against an attempt to obtain a restraining order against him.  The party seeking the order (the "Petitioner") alleged that she was fearful and afraid of my client, who was "bothering" her because he "seemed to feel that [she was] in his debt."  In her moving papers, which she signed under "penalty of perjury ", she stated that my client had given her some money ($25,000.00) and a car as gifts and that she "was never particularly close with" my client. 

In response, my client provided evidence of emails the Petitioner had sent him wherein she had said, "I love you very much", "Love you with all my heart", "My heart is bursting at the thought of seeing you",  and the like.  He also produced emails he had received from Petitioner wherein she stated, "THANK-YOU for rescuing me by lending me the attorney's fees", requesting to "borrow one of the cars", and an email that she had sent to her attorney and forwarded to my client which stated that my client had "financially supported the children and I since February, he has lent me money for legal fees etc as well as providing me with a vehicle."

In the responsive papers, I advised the Court that the case was "frivolous and without merit" and that the Petitioner's attorney had a conflict of interest "because of his apparent knowledge of her perjury and the fact that he may be a witness to that fact."  I requested the following orders:  (1) that the Court deny Petitioner's request for a restraining order; (2) that Petitioner's attorney be relieved as her attorney of record; (3) that Petitioner and/or her attorney be ordered to reimburse my client for all of his attorneys fees and costs; (4) that the Court report Petitioner to the authorities for perjury; and (5) that the Court report Petitioner's attorney to the State Bar of California for having knowingly allowed Petitioner to perjure herself.  Since the crime of perjury can only be reported to the authorities by a judicial officer, I stated, "Unless and until Courts appropriately penalize clients and their attorneys of record for such misconduct, the judicial system will continue to be used inappropriately by unscrupulous individuals and their legal representatives."

The Court denied Petitioner's request for a restraining order and ordered that Petitioner pay my client 100% of his requested attorney's fees, in the sum of $5,000.00.  However, the Court denied my other requests. 

I then took it upon myself to report Petitioner's attorney to the State Bar of California, which after reviewing the evidence advised me that it would not discipline the attorney, stating, "Although you may be correct that his client lied in her declaration prepared by [her attorney] regarding the loan of funds and the car as well as the claim of threats by your client, we would have to prove that the attorney acted in bad faith or presented a claim not warranted under existing law.  Since communications between the attorney and his client are confidential, we will not be able to learn what representations by the client the attorney relied upon in presenting the client's claims."

Judges almost never refer a case to the District Attorney's office for a perjury prosecution.  "Persons who knowingly make such accusations [false allegations] are almost never subject to legal sanctions.  Casey Gwinn, a San Diego prosecutor and national authority on domestic violence, admits, 'If we prosecuted everybody for perjury that gets on the witness stand and changes their story, everybody would go to jail.'" 

Clearly, the system does nothing to discourage people from committing perjury.  I am of the opinion that unless and until Courts refer cases of perjury to the District Attorney's office for perjury prosecution and the District Attorney's office actually prosecutes such cases, "everyone that gets on the witness stand" will continue to commit perjury.  Since the judicial system is not known for its ability to always fetter out the truth, it might be a good idea if something were done to reduce the incidence of perjury. 

Furthermore, when sworn in as attorneys, we agree to faithfully discharge the duties of an attorney to the best of our knowledge and ability.  Among other things, the duties of an attorney include the following:   (1) "To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense";  (2) "To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law"; and (3) "Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest."

The system might also improve if the attorneys remembered the oath that they took and if the State Bar actually disciplined those attorneys who fail to "faithfully discharge the duties of an attorney and counselor at law to the best of [their] knowledge and ability."

By the way, that attorney is now representing the Petitioner in an appeal of the $5,000.00 attorney fee order.  I do not handle appeals and will therefore not be involved in that matter.  However, it is my understanding that most appellate attorneys charge approximately $700.00 per hour.  Moreover, the prevailing party on an appeal is not entitled to be reimbursed for their attorneys fees by the other party.  Does anybody really believe that we have the best legal system in the world?  If people are so apt to lie under oath, what makes us think that people bother telling the truth when not under oath?

If you have a child custody issue or questions relating to a domestic violence restraining order, please contact Pasadena Family Law attorney Mark B. Baer, Esq. at Mark B. Baer, Inc. a Professional Law Corporation.