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Sunday, December 16 , 2018, 3:37 pm | Partly Cloudy 61º


Brian Burke: About Your Divorce (Letter 49) — Ralph’s Lawyers Explain They Didn’t Really Lose

Dear Pinky and Spike:

Jennifer thought it was her turn to reply. She didn’t know what she was going to say, but she was, after all, a lawyer. She could open her mouth and something would come out. However, she had been done wrong by this judge and hoped what she said didn’t come out as a whine.

She didn’t have to worry. Ashley got so close to Ralph that she began to encroach on his personal space. Ashley did it on purpose, and she knew exactly what she was going to say.

“Ralph, go to any lawyer you want. When someone says he wants a ‘real fighter’ to represent him in a divorce, I can’t stop myself from reminding him that it’s a divorce. If you were charged with murder or suing the Bank of America or Blue Cross, a lot can be said for aggressive lawyers and aggressive lawyering. But this is a divorce.

“Divorce cases involve two people who have had a lot of sex together and now they want to be apart. Why assume antagonism? Why not assume that a couple who have enjoyed a lot of sex together can divide by two together? If feelings are hurt and one or both act like a child, expect better behavior and give them the time it takes to change.

“And why have lawyers being paid by the hour? What incentive do they have — ‘they’ includes Jennifer and me — to keep their intrusion into the lives of their clients minimal? As soon as the client signs a fee agreement calling for hourly compensation, the potential conflict of financial interest between the lawyer and client is greater than it is between the couple getting divorced.

“Like it or not, divorce cases are not serious business of the court. They are one step above small claims court. I seriously wonder if any judge has ever lost sleep over a decision in a divorce case.

“My point is this: An aggressive lawyer can seem effective so long as he avoids a sustained appearance in the courtroom, where the aggression will be preposterous in that it will be disproportionate to whatever is at issue. In my opinion, someone who spends any part of a legal career as a ‘fighting divorce lawyer’ is a jackass.

“So, Ralph, if you want to get yourself a jackass to represent you, do it. On the other hand, if you stay with us, please consider the effect of the question you just asked. You want your lawyers to be wholly aligned with you, and asking whether you should get a different attorney doesn’t help to accomplish that.”

Jennifer thought Ashley sounded good, and Ralph had no idea that what Ashley was saying came from a speech she had given several times. Ralph didn’t know what to think or to do.

He was a respected, middle-age scientist. He was accustomed to being treated with deference and often admiration. Just now he asked a simple question of someone to whom he had just given a lot of money to do work for him, and he got his butt chewed by this woman who couldn’t be older than 30.

Going home and taking to his bed sounded pretty good. He could charge his batteries and then deal with all of this. But “all of this” was going to be there to deal with no matter what. As for other lawyers, he already decided not to hire the ones he had interviewed, and he wasn’t going to do any more interviewing. He didn’t know how to take what Ashley just said, but she sounded like she knew what she was talking about.

But let’s face it. The other one, Jennifer, had just had her butt kicked by the judge who would be handling the case. That wasn’t good, but he didn’t know what to do about it. The best he could come up with was, “OK, I think I understand what you just said. But can you please explain why we just lost in court? And can you please explain how it will affect the way you would handle my case?”

It was Ashley again, “How we would handle your case? Ralph, we are handling your case. There is no ‘would’ about it. We are your attorneys of record, and that’s a given. You shouldn’t refer to us in the subjunctive or in any other way that’s tentative. If you want someone else, get a substitution of attorneys and we will give you your file and the unused portion of your retainer.”

“OK, fine. But what about my case? What the hell happened, and what are you going to do about it?”

“Ralph,” Jennifer said, “While Ashley has been talking, I’ve been thinking, and I can answer your questions. The answer to ‘What are we going to do about it?’ is nothing, and that’s because of the answer to the first question.

“You saw me after I saw the judge. I’m sure I didn’t look good because I felt like I had been kicked in the stomach. It was because what happened was so different from what I expected to happen. I can be angry and disappointed with the court — and I was both — but to understand what anyone does, it’s a good idea to start with the premise that what they do makes sense to them even if it doesn’t make sense to me.

“Two things happened that I didn’t anticipate. First, the judge changed her mind, and second, the order I wanted to warn her about expressed her new decision, which had already been filed.”

Ralph asked, “Can she change her mind like that? She says one thing in court and then orders something different?”

Jennifer said, “Yea. The decision isn’t final — still amendable — until it’s signed and filed.

“So let me tell you what was going on for the judge. First, she decided that she couldn’t issue a restraining order against you because there was no evidence to support it other than Rebecca’s fear of being murdered by you. Even though Rebecca may be sincere, her fear is based on nothing you’ve done in the past.

“The judge leaves the bench and gives the case some second thought. The guy — that’s you, Ralph — says he has no reason to be near his former residence, which is where this wife continues to reside. So while there isn’t the necessary evidence to support a restraining order, one would alleviate the wife’s fears without restricting the husband’s liberty in any way meaningful to him. Then the judge thinks, ‘And what if he does kill her? I doubt a restraining order has ever stopped a determined wife-killer, but if there was a killing and I hadn’t issued the requested restraining order, I look like an accessory to murder.’

“The judge changes her mind. When Eunice Heep’s fraudulent order comes to her, it is no longer fraudulent. It says what she has now decided. She signs it, and her assistant files it. Then I come racing in to protect the judge from signing an order that’s now appropriate. She probably thought I had come in on an ex parte basis to try to talk her out of what she’s decided. That would be reprehensible. Both would be bad — going to chambers to try to get a judge to change a decision, and getting into chambers by claiming there is an emergency, which there was not.”

Ralph asked, “If you had known she had changed her mind, would you have done anything differently?”

“Yes,” Ashley replied. “We would have done nothing.”

“OK,” Ralph said, “I understand you are my lawyers, so what are you going to do next?”

Ashley replied, “Good news and bad news.”

— 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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