Saturday, February 24 , 2018, 7:41 am | Fair 32º


Brian Burke: About Your Divorce (Letter 15)

An introduction to 'the traditional notions of fair play and substantial justice'


Nick and Nora

Pinky and Spike:

You can see by the salutation that I’m making this letter more personal than the others.

There was a greater response to my account of Butch’s death in Letter No. 14 than to anything else I’ve written to you. None of it was positive.

In the midst of adolescent chaos, Pinky’s bridge-playing mom would tell us to “review the bidding.” I’m going to do that now. You are my two oldest and two best friends — friends who are experiencing an event that’s excruciatingly painful and likely to get worse. It is also your last chance to learn previously inaccessible truths about yourselves and about the world you live in. (However, I don’t presume to know what those lessons will entail or how you might change them.)

For better or for worse, your divorce will redefine who you are. You may become more fulfilled or wiser than you can imagine. Or, Spike may become a mean and resentful old woman and Pinky may become a bitter old man.

I can’t help you directly; you each have your own show to produce. I have information that would be valuable to you, but right now you can’t hear what I’m saying. I feel like a Cassandra yelling at two people standing on a train track, “The Surfliner is going very fast and it’s closing in on you! Why don’t you get out of its way?”

Before this thing is over you will be able to hear me. The reason I write these letters now is because I’m afraid I won’t remember all the things I want — and need — to tell you when you finally become a willing audience.

. . .

Anger is a predictable and normal response to loss. In the context of our own deaths we tend to project the anger to someone outside our system. Someone who “doesn’t count.” But why? We know from the age of 3 or 4 that we — and everything we love — is mortal and is going to die. It’s a condition of our existence. So why would we get angry about it when its occurrence is approaching?

The simple answer is, because we are human and that’s how humans act. The anger is about the person experiencing the loss, and it can help that person discover things that would otherwise remain forever unknown. In divorce we can yield to the childish attempt to eliminate anger by striking out at its “cause.” The anger isn’t about what she did or what he did. It’s about the person experiencing it.

That anger — rage — can feel stronger than anything we’ve ever known, and it can feel like it will last forever unless we do something. We can take the opportunity for self-discovery, or we can be seduced by the court and its lawyers who claim, for the right fee, that they can resolve the conflict and cause the pain resulting from your loss to disappear.

You two have just started to find out how this approach is going to work. I’ll tell you again, in a whisper, “The Surfliner is bearing down on you.” This Cassandra has now run out of warnings — at least for now.

. . .

I’m still going to tell you what I know about the “F-word,” but I’ve run out of room in this letter. I’ll end it with two ways I’ve seen the idea of “fairness” expressed: International Shoe Co. v. State of Washington, and traditional notions of fair play and substantial justice.


During the first week of law school, every American law student encounters International Shoe Co. v. State of Washington. It comes early because it deals with jurisdiction — the concept we use to figure out when and how a court, as an instrument of legitimate government, can impose its power on a person or entity. After 40 years I don’t recall what the State of Washington was doing to the International Shoe Co., but I do remember, verbatim, the reason Chief Justice Harlan Stone gave to support the court’s conclusion. He wrote that whatever the State of Washington was doing to International Shoe, it was legally permissible because Washington’s action did not violate “the traditional notions of fair play and substantial justice.”

Maybe I remember the language because I liked how it sounded and thought I understood its meaning. Perhaps I liked how it sounded and looked forward to learning what it meant.

Lynn and Jonathon Gaunt (Q.C.)

Fast-forward 30 years. Because the distinguished Gilbert W. Lentz has spent his professional life as an appellate lawyer, he has taken the opportunity such time affords to become the best-read person I know. He once recommended that I read the Pax Britannica Trilogy by James Morris. I saw James Morris interviewed as Jan Morris, and I admired the way she described her heroic personal journey, but I hadn’t read anything written under either name.

Morris has a masterful way of bringing history into the present, and she is also a master of the telling and memorable footnote. Halfway through the Trilogy, Morris pauses to speculate on whether the British Empire had a net positive or a net negative effect on her colonies.

Morris contends that one of the positive things Britain exported to her colonies was the “English notion of fair play.”

By this time, I realized I didn’t know what “traditional notions of fair play and substantial justice” meant, and I didn’t think Justice Stone knew either. But Morris put the phrase in a context that was historical rather than legal. It was a lead to take up with Lynn and Jonathon Gaunt.

The Gaunts are both London barristers. We met in 1990 at the Santa Barbara County Courthouse. They entered Department II while the Honorable Charles Stevens Jr. was presiding and while I was completing a final argument to a jury ready to render a verdict against me. (Technically the verdict was against my client, but only a lawyer who’s been trashed by a jury knows how personal a judgment against him or her can feel.)

Lynn and Jonathan were sympathetic, and we were friends before the evening was over. Many years later I was with them in London and when the right opportunity appeared, I asked Jonathon, “If I told you that one person, call him ‘George,’ behaved in a particular way and that his behavior had a significant and negative effect on other people, would you be able to tell me if George’s behavior was ‘fair play’?”

I’ll start the next letter by I’ll telling you what Jonathon said, what Lynn said in reply, and how it caused Jonathon to do a 180-degree reversal of his first opinion.

A version of this letter with extended footnotes can be found at

Your friend,


— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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