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Brian Burke: (Column 175) — The Skills and Knowledge of Pre-1970 Family Lawyer

Real divorce trial lawyers and family law trolls are out of work.

Anger personified: Pre-1970 divorce client

When Philip Adams said his son Steve was not very good with the clients of his family law firm, he was talking about pre-1970 divorce clients.

A person initiating divorce was faced with the task of proving before a jury of strangers that an intimate life-partner was at least a lousy spouse (to receive somewhat more than half of the marital property) or, preferably, prove the partner to be a thoroughly bad person (to receive a lot more than half).

The defendants in divorce actions were faced with the task of convincing a jury they were innocent of the allegations — or at least not as bad as the other side “would have you believe.”

These people surely understood the legal system forced them to become angry litigants — both with the spouse and at the legal system.

Once the bills started to arrive, they would also be angry with their own lawyers. (The same is somewhat true today, but at a fraction of its former intensity.)

The divorce lawyer before a jury

A divorce was like a low-level criminal prosecution. The subject matter of their work put divorce lawyers at or near the bottom of the professional (and social) barrel.

Yet, they had to have the talent, skill, experience and willingness to try a case before a jury.

A jury trial requires lawyers to make one split-second decision after another and demands one’s constant, high-level attention for days, weeks and sometimes months.

While exciting and engaging, I know of no work that is as mentally and physically exhausting.

Aside from those who have worked as deputy district attorneys or public defenders, less than 10 percent of the active Bar has handled a jury trial to verdict. To me, the ability to present a case to a jury distinguishes real lawyers from the rest.

Divorce lawyers were willing to expend the energy and use their skills by participating in a glorified Jerry Springer show.

The necessary skill and wiliness created a barrier to entry into the field, so competition was limited and practitioners could reap the benefits of belonging to a protected little cottage industry.

Family Law Act, trial lawyers and law trolls

The big story is about how Stephen Adams thwarted the intended humanistic effect of the Family Law Act, and I’ll tell it. But first I’ll note what happened to the family law trolls and trial lawyers at midnight on Dec. 31, 1969.

Overnight, the Family Law Act of 1970 made inconsequential the temperament needed to present a case to a jury and made obsolescent the skills of a trial lawyer in a family law setting. The cottage divorce industry disappeared for nearly 10 years.

The merger of the Spanish and Anglo-American laws that defined what it meant to be married began the Constitutional Conventional of 1850, but essential details were left to the courts to decide on a case-by-case basis.

The most important decisions were ones that could serve to guide the resolution of future cases. They were preserved and published as a small part of those 707 volumes of appellate opinions I called the “guts” of the working law library.

For family law and lawyers, those appellate reports document 120 years of legal evolution.

Overnight, the Family Law Act of 1970 superseded nearly all family law and community property decisions preserved as published appellate opinions. Family law lawyers applied new law to familiar situations and reached new conclusions.

No-fault divorce with equal division of property meant just that.

When the new law did not have a clear rule for the disposition of a particular issue, the law troll could be enlisted to search the old law for decisions that might be used to interpret the new law.

In those 707 volumes of appellate opinions, there were some that might be useful to the new family lawyer. Industrious lawyers with high-asset cases would find them eventually, but it would take decades.

Many of the reports have 1,000 pages, so the mountain of California law that could be mined for past opinions with potential use in the future approached one million pages.

It was ideal work for a law troll on a salary. When a wide-ranging statutory scheme goes into effect, it generates a splurge of appellate decisions.

When the new rules don’t prescribe a clear outcome in specific circumstances — and where enough money is in play to justify the legal expense — the unfortunate litigates go though the process of having their name turned into a precedent.

For the first few years, the lawyers practicing in the field can remember all the facts and rulings in every appellate case the courts have decided under the new law.

But after a few years there is a tipping point — and lawyers realize too much law has been accumulated and one’s memory is insufficient or unreliable. At this tipping point, the law trolls come back to work.

If a troll had a passion for binders with dividers and has spent his spare time fishing for a potentially useful precedent in the 707 pre-1970 reports, that troll’s binder is spontaneously transformed from a tool for the troll’s personal use to a product.

That’s what happened to Steve Adams in the late 1970s. His binders became a way to attract lawyers to his class on the development of family law since 1970, or he used the classes as a place to sell his binders.

I think it was the content of the binder that attracted attorney-students; Adams was a competent and consistent teacher, but he was neither inspired nor inspiring.

The next column will describe the humanistic goals of the Family Law Act; the struggle with law trolls to keep them from undermining those goals; the struggle between the trolls over who'd get to undermine what; and how Adams and his binders prevailed.

The column after that will describe how Adams, as dominant troll, dragged the Bench and Bar, scratching and biting, into the digital age; how he set up his commercial empire, enjoyed huge financial success, won professional acclaim, and eventually eliminated the need for family law libraries and trolls to work in them.

The final column in the series will explain how Adams, with the wind of legal economics at his back, revived the little cottage industry of divorce and turned it into the multi-billion-dollar divorce industry.

Unfortunately, the product of that industry promotes the prosperity of the people providing it, but it is toxic to the customers to whom it is delivered.

— Brian 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 also is the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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