Don't shred the kids! A 3 step guide.

A child who becomes a victim of a serious violent crime can fully recover, quickly, with help.  The same goes for children in war zones.  One must remove the child from the danger, reassure the child that the adults in their life will prevent new incidences where the child will be re-victimized, and then give the child an opportunity to vent their concerns without judgment.   Children who do not recover were either not removed from the situation, were not protected from recurrences, or were not given the opportunity to explain it to an independent adult.  The part that most people get hung up on is step 3.  Venting.  For serious trauma, venting to the parents is not enough. 

The three step process works for every new frightening thing a child experiences as they develop.  For typical fearful things like a barking dog, the parent will keep the child safe, teach the child how to safely approach a strange dog, and then let the child talk excitedly about how scary it was.  For most difficulties, this is enough.  But while most parents can handle getting a child through most of the little traumas on the way to growing up, parents are not equipped to handle the third step where the child has become a victim of crime, has lived in a war zone, or when the family is splitting up.  Parents have enough problems handling this on their own, and usually cannot remove themselves from the situation well enough to be credible sources of help to the child who needs to talk about it.   

Divorce trauma is more like trauma involved in living in a war zone, than it is like having lived through a minor thunderstorm.  The victimization of divorce is created by being asked to lie to the other parent, or to choose sides.  They may be experiencing a war zone in their own home.  They are victimized by parents who do not agree on the parenting issues.  The good news is that it is just as possible to fix these traumas as it is to fix the traumas of being a crime victim or childhood war survivor.  The trick is to stop the trauma, prevent a recurrence, and give the child an opportunity to speak to an independent third party. 

            It does not matter that you are probably not separating because of parenting issues.  Children are the center of their own world, and cannot believe that something else could have caused this.  Children do not understand financial planning, let alone differences in opinion over finances.  Hopefully, children do not understand sexual infidelity.  In their world, the parent’s purpose in life is to create and raise the child.  You may know that your issues have nothing to do with the children, but the children do not.  To the children, they are somehow responsible for their parents having created the war zone they now live in.  You can tell them otherwise, but they do not believe you. 

It does not matter how hard you try, your child will sense that his own parents are each other’s enemy.  If you are one of the 99.9% of separating parents who are separating because of some disappointment, you cannot fully hide this from the child.  You must try, but you must also understand that your child might feel the need to choose, or to make you feel as though a choice was made.  No matter how hard you try, your children take the pieces of information they get from observing you, and they draw conclusions.  Sometimes they draw the right conclusions, but more often they draw skewed or exaggerated conclusions.

            Maybe you and your ex are truly being amicable, but simply have a disagreement on where to live.  You are handling the disagreement like adults, but your child knows that a disagreement exists and does not know how to handle emotions like an adult, and therefore, while putting two and two together, your child envisions much worse things happening. 

            Or if you and your ex are not being amicable about the split, and one of you is convinced that a move will be traumatic for the child, or having two homes will be traumatic.  The child will be at risk for believing that one parent’s house is somehow dangerous or scary.  Suddenly, a very ordinary situation (moving as life’s opportunities change), becomes a trauma to the child.  A move that would be exciting, if the parents were doing it together and to provide new opportunities for themselves, is suddenly wrong, just because the parents disagree and only one of the parents is doing the moving.   
            In many cases, the parents believe that they should enlist a family friend or relative to listen to the child.  Unfortunately, this often simply cements the battle lines, becasue the child knows that these people are likely to report back to the parent who is aligned with the supposed confidante.  Truly the child needs to vent to an independent third party who will not tattle on them to either parent.  They need to feel that it will not hurt them or their parent’s feelings to tell the truth.  They need a therapist. 

            If you worry about the cost, ask for help from your religious leader, your school district, your health insurance plan, your employee assistance plan, a community group or your lawyer.  Remember, this will not be as long of a time in therapy as you probably need.  They have not been betrayed by a lover.  They do not have as much past to explore.  They need child therapy, not adult therapy.  They need to feel safe and get through their own issues, which are that Mom yells and Dad cries and money is suddenly scary to talk about and no one is home when they get home from school, and they feel bad about it because their parents feel bad about that part, too. 

            A good therapist can help a child get through this, as long as they are brought in early enough.  Wait until the other parent has convinced the child that you are evil; wait until lying to each of you in order to keep the peace has become habit; or wait until your teen has decided that their friends are more important to them than their battling parents, and the therapy will be difficult, expensive and long.  Wait until their grades suffer or they have started drinking or using drugs, and the therapy will be much more difficult. 

            Bottom line:  get the kids in to see a therapist as soon as practicable.  You can work on stopping the situation and preventing it from happening again on your own, but you cannot manage the part of the help that involves their need to talk about it.  The longer you wait, the worse it gets.  Remember, they follow you everywhere, try not to let them follow you through the same shredder that you are going through.   
  

Saving legal fees

So many people ask how to save on legal fees, and ask why I do not give information in my blog that would prepare them to go do it for themselves in court, so they never have to hire a lawyer in the first place.  I have many tips to save on fees (please see other posts, and come ack from time to time as I add new ones to my "how to work with a lawyer" section). 

However, I do not pretend to give a lesson in law during my blog posts.

Most experienced lawyers have encountered the situation where a client arrives having already messed up their cases.  We do not mind this, so long as the client knows that we are starting to work from a deficit, and that we might not be able to accomplish their goals at this point.  We do not mind when people pay us to correct the mistakes that they have made by attempting to proceed on their own, with the half-informed positions that they got by browsing the internet.  I have made a significant amount of money from clients who came to me after messing up thier own cases, and needed to be rescued from themselves.  However, we have happier results with our clients if we can direct the case from the start.

We have ethical requirements to comply with as well, for our practices.  Ethics requires that we not assist in the unauthorized practice of law.  We are permitted to assist in the general understanding and public education, but the issue is whether we are helping people or hurting people, when we give specific tips. 

For that reason, I confine my blog posts to information that will help you work with your legal counsel, as opposed to making some pretense of preparing you to do it for yourself.  The DIY lawyer has usually googled some issues, looked in Wikipedia, and maybe even gone to a law library to read a few professional articles and cases.  What they miss is the fact that the law is not static, so the case you read from 2008 might have been changed in the 3 years since it was written.  The statute you are relying on may have been interpreted differently than you are hoping, and worse… the tactic you have prepared might fail for no particular reason and because you have not had a legal education, you have no idea how to pull out of the tailspin that your case is in. 

To continue with that analogy, it’s very easy to fly the plane when it’s up and the skies are clear.  And maybe the online gaming pilot program has prepared you to handle dodging missiles that are being fired at you, but when it’s time to land, don’t you wish you had someone who actually completed flight school and has their pilot’s license? 

Trying to handle your own case is like trying to do surgery on yourself, fly a jet liner after having played “pilot” on your X Box, or building a skyscraper after having looked up how to build a house frame on the internet.  Most surgeons would not try surgery on themselves.  Most pilots will not fly with an unlicensed pilot at the controls, and most engineers expect a full-out architectural plans before they break ground on a new skyscraper.  To tell the truth, even most lawyers do not handle their own divorces.  It’s just plain foolish, saving a dime in the attempt to do something that could cost your life’s savings.   Keeping with the example of a divorce, there are very few conditions under which one should ever handle one’s own divorce.  Even if you are entirely in agreement with your spouse about what you want to have happen with the children and assets and debts, get a lawyer to write it up just to make sure you’ve been complete about it.  However, it is reasonable to expect to be able to handle your own divorce if you have no property, no debts, no claims to alimony, no children, and no expectation to get a share of each other’s retirement accounts.  Basically, we only expect this type of situation in very short marriages.  Otherwise, be careful, you may never know what you gave up unless you have a lawyer review it for you.    

The same principles work for other types of court action.  Unless the cost of what could be lost in the lawsuit is something that you are OK with losing, do not try it on your own.   

But please, keep coming to my blog to learn about how to avoid lawsuits, what the general rules are, how to dress in court, how manage your relationships or contract negotiations to avoid court, and how to manage your relationship with your attorney.  I have some good tips on how to use your attorney's services to minimize the fees, but trying to do without and attorney, is not one of them. 

There is NO three day right to cancel a contract

                I often get calls from people who want to cancel a contract they made.  Maybe they just bought a special refrigerator, or a security system, or a cellphone, or a car.  Sometimes they made a contract to purchase a house or maybe just rent an apartment.  For whatever reason, they now want out of it and think they have the right to cancel the contract within 3 days.   With very few exceptions, they are wrong.  There is generally no right to cancel any contract, unless you have a reason within the contract or within the law that allows you to rescind the contract.

                I know where the myth about cancelling contracts started.  After World War II, door to door salespeople were common in our country.  They would sell roofing, or siding, or vacuum cleaners or encyclopedias.  If they came to your door and you answered, because of the expectations of courtesy back in those days, you probably would have invited them to step inside.  They would tell you that your own home was about ready to fall apart, or show you how much dirt you had on your bed sheets that their vacuum cleaner could remove.  They would keep it up until you signed on the bottom line, agreeing to an overpriced version of whatever product they were selling.  In rare occasions, these products were worth what you paid for them, but in many instances, the sale was being made to someone who did not entirely understand what they were purchasing.  Sometimes, if the buyer was a divorced woman, a widow or an elderly person, the tactics felt like strong-arm tactics.  The implication was that the salesperson would not leave you in peace until you purchased his product.  Little old ladies, fearful that their house was about to come crashing down and having an arm twisted by a salesperson, would agree to a bad contract, and then a few days later their son-in-law would come over and get furious over mom being cheated. 

                Consumer groups started springing up and pushed for laws that would protect consumers from the worst of these tactics.  After all was said & done, the laws only covered situations where you did not solicit the encounter, where the person came to your house and got you to sign with tactics that feel excessive.  These “right to rescind” laws are usually very limited, and do not cover most situations.  As a result, the contract you made with the cellphone company may have a way to help you get some relief from an excessive bill, but this is usually not the law that will help you with that. 

In states that have these laws, sellers usually do not count your transaction as a sale and would not make a move to help you or schedule the service until the three days passed.  If you are one of the few who has the right to rescind because your contract falls under the statute, you need to make sure you rescind it correctly, giving notice in the proper way, and keeping proof that you gave the notice of your intention to exercise the right to rescind, as well as proof that you gave this notice to them within the correct amount of time. 

                But even if your contract does not come under the very limited right to rescind, all is not lost.  If fraud truly occurred in your situation, you may have a way out.  Or certain services may have different rules entirely.  For example, some states have written laws about high-pressure time share sales.  And most states have specific rules about getting out of a rental or real estate purchase contract.   Often, when the sale is real estate, there are specific rules within the contract about how to get out of it.  The contracts are very long, so it is worth having a lawyer review it if you have decided that you want to cancel it, to find out what your rights are if you cancel.  It is possible or likely that you will have to pay some money in order to cancel a real estate contract, for example, but the amount you would pay would be far less than following through with a bad contract to buy a house, so it is worth looking into it.

                The general rule to follow, if you are an adult, is to take adult responsibility for your decisions and do not allow someone to badger or embarrass you into spending money you do not have to spend or do not want to spend.  However, if you find yourself in the unpleasant circumstance of having made a purchase that you now regret, run to a lawyer with the contract in hand, to have a contract review.  Give the lawyer every reason that you want to get out of the contract, along with a copy of the contract and an explanation of how you got into it.  Somewhere among that information there may be an exception in your state, that would allow you to get out of it.  Only a lawyer licensed in your state who has experience in contract law, will be able to know this.  The lucky thing is that it will not take more than a brief consult about the contract with maybe a demand letter written by the lawyer to the seller, to know whether you have a chance to get out of your contract.

Managing a high conflict opponent in litigation, part II: put it in writing

One problem with the high conflict opponent is that they are unable to negotiate an issue to settlement.  They have difficulty believing that if their opponent is willing to agree to something, that this could possibly be in their own best interests to agree as well, and so putting anything in writing and signing it is generally not done by a high conflict person unless it's unavoidable.  If they have been presented with something in writing that they must follow, a statute, rule, court ruling or contract, they will look for a loophole to crawl out of the minute the thing becomes inconvenient. In general, they do not follow rules if it does not suit them, and they will try to find a way to re-interpret things to allow them to do as they wish. 

Most attorneys recognize that agreements which are not in writing are subject to improper interpretation and very difficult to enforce.  While unwritten agreements are often subject to honest mistakes and differences of opinion, the high conflict opponent creates a new level of meaning to “difference of opinion”.  When you know that you are dealing with a high conflict personality, never rely upon a settlement until it is in writing, and recognize that if there are loopholes, the high conflict litigant will find a way to crawl through them.

I had one high conflict case where the judge made a temporary custody ruling.  My client arranged to maintain the schedule of activities in the hour between school and when he could get home from work, that they had maintained during the marriage.  However, upon realizing that my client was no longer going to support her lifestyle, his high conflict wife decided to manipulate the parenting issues, in the hopes that if she got sole custody, that she would get the house and support to maintain her lifestyle.  She decided that the "right of first refusal for babysitting time" meant that she could insist on exercising parenting time during my client's week at the time the kids would usually have been at thier extracurriculars, play dates and tutoring sessions.  She would show up and create a fuss with the tutors, coaches, and other parents, insisting that she had the right to this time with the children.  The children, embarrassed by her behavior, had their grades plummet during the few months that she was doing this before we were able to get a hearing scheduled where a judge ordered her to stop. 

In another situation, a judge at trial ordered that my client woudl get the house as long as she was able to re-finance it within 30 days, and if she could not, it was to be sold and the proceeds split.  Her high conflict ex spouse refused to sign her refinance documents, and once 30 days passed, he had a realtor put a “for sale” sign in the yard and start marketing the house.  I was able to get a quick hearing to order the high conflict opponent to cooperate with the re-financing.  We suggested adding a clause into the judge’s original ruling to force the opponent to cooperate, and we got the judge to order the opponent to pay for her costs in getting this change, as the loophole he thought he had found in the judge’s order was clearly bad faith in trying to circumvent the order. 

The first tactic is to put everything in writing.  The second step is to enforce the contract.  The third step is to look for ways to improve or add to the contract when the high conflict person believes they've found a loophole.  Finally, the fourth step (which is only really available to lawyers and people who repeatedly draft contracts like landlords, but which hopefully does not happen for individuals in divorce situations), is to create a new form for a better contract to avoid this problem with new situations in the future.  Everyone involved must understand that the high conflict person will take every ambiguity and try to use it to their own advantage, not caring who they hurt in the process. 

This is not a problem exclusive to family law.  I know a high conflict personality who thought he had found a loophole in his mother’s will and took his mother’s estate to pay off a house that had been jointly owned by himself and his mother.  This high conflict personality’s siblings cannot recover the mother’s estate.  After 2 years the courts finally traced what happened, but were unable to recover the funds, as the high conflict brother is now insolvent, having sold the house and spent the proceeds.  Anyplace there is a contract, rule or written document, a high conflict personality who is constrained by it will look for a loophole.  The high conflict loophole seeking is different than a person seeking justice by a reasonable means, bur rather the high conflict personality seeks personal advantage without regard to the effect on others.  They will look to manufacture loopholes where none exist, and will seek out ambiguity rather than certainty.     

In some rare situations (more frequently in parenting or ongoing support issues), documentation can often give cause to re-open litigation.  In ongoing litigation, documenting the high conflict person's issues with an interim order can help your lawyer find evidence to resolve an issue.  In a contract situation, you will need to get an attorney to review the contract to see if amendment or enforcement of the contract will help you. 

How would the siblings whose brother looted their mother's estate handle this?  Start with enforcing the contract, in this case, the Mother's will.  These siblings should have immediately sought probate after the mother's death, and obtained liens/stays on the property so that the high conflict person could not have diverted their estate to pay off the mother’s house.  Waiting is what allowed their brother to exploit a loophole he thought he had found.  More importantly, during their mother’s life, they should have consulted with their mother to make sure her will had no loopholes, and everything she intended was clearly explained in detail, so that it would not have been vague enough for anyone to twist her intent and circumvent her choices.  Some things are nearly impossible to fix, after the fact, and this is one of them.  The lawyers involved will certainly change their will forms to close up the loophole that this sibling thought he found.  But there may be no way to recover the money that this sibling wasted.   

If you find yourself in litigation over a contract, and the judge offers an opportunity modify the contract, be sure to have more than one option for alternative clauses.  Also, you will want a clear explanation of how the opposing party acted in bad faith and therefore costs of the litigation should be paid by the opposing party.  Make sure you have followed all of the local and state rules required to set up for a ruling to be in your favor on the main issue as well as on the issue of awarding costs and fees.  Understand that there are many jurisdictions which require specific citations and other “magic words” before your request for compensation for someone else’s bad faith can be granted.  All the legal strategies in the world cannot fix this if you have not used the correct magic words for your jurisdiction. 

As in all situations where you find yourself in litigation with a high conflict opponent, you need to get the help of an attorney who is familiar with the high conflict nature of this situation in order to maximize the possibility of winning on these issues.    

Managing a high conflict opponent in litigation. Part 1: TIME

One of the common factors in high conflict litigation is that the persons driving it are unpredictable, oppositional, self-centered (or unconcerned with the needs of others, in the case of the sociopath), and they lie as easily as they tell the truth.  One of the most troubling things in litigation with these people is their tendency to pop up with some new strange “fact” the minute it looks like things are going against them, usually a lie or half truth. 

                This is the court hearing where the judge is about ready to rule on a temporary custody issue giving reasonable parenting time to both parties, when the high conflict party decides to pop up with, “but you can’t do that, the children are afraid of him,”.  And with 5 other hearings on the morning docket, the judge wants to move this one along and wants a professional to explore the new information before he sends the children to spend time with the parent accused of violence, so the high conflict personality will get time alone with the children to alienate them from the other parent before being ordered to allow reasonable parenting time. 

                Or maybe this hearing will be the one where the high conflict litigant, watching the judge about to make a decision to give the house to the opposing party, will pop up with a claim that she had forged his signature on a vital document and therefore everything the judge has heard in this courtroom is based upon a lie.  And now it’s a Peyton Place worth of issues rather than a simple property split.  Suddenly, the judge decides not to resolve the property issues and puts them off for a few months until there is more time on her docket for a more thorough hearing with evidence on the various papers involved.  And the high conflict spouse will have an opportunity to find (or manufacture) evidence that will obscure the real issues, in the hopes that a confused issue will result in a bigger award to him than what would be fair. 

                And then there is the high conflict litigant who figures out how to control the hearing from the start, because the judge is not shutting them up, and who brings in evidence of everything but the kitchen sink, discussing irrelevant issues, demanding compensation for things not in their pleadings, etc., etc.  This type of high conflict litigant interrupts the opponent’s time for hearing, overtalking them and not allowing them to have their time, mixing truth and half truths with outright lies, and their victim will have an impossible time trying to untangle the web of lies to show the judge the bottom line.  This high conflict behavior is akin to throwing a pot of pasta at the wall and hoping at least one strand sticks to prove that it’s done.  The whole pot of pasta might have to be sacrificed to the effort, but at least they’ve proven their point, one strand is done.  At high cost, they’ve proven their point on one issue and gotten more than a fair judgment in their favor.   

                What is the most important strategy to deal with this?  TIME.  The high conflict litigant’s opponent must find time in front of the judge to untangle the mess that is created by the lies, must request the opportunity to thoroughly cross-examine the high conflict person who has just created the web of lies, and must remember that the person who comes up with a spontaneous lie such as this, always contradicts themselves if given enough opportunity to do so.  An attorney who is aware that this high conflict opponent might try this “surprise testimony” strategy (commonly known as “sandbagging”, among lawyers), will be prepared with reasons to give the judge.  These must be lawful reasons that the judge will recognize, that due process demands that the judge give the victim of such claims an opportunity to thoroughly examine the issues.  The attorney walking into such a hearing will also be prepared with alternatives to give the judge so that the delays caused by the unexpected claims do not subvert justice (for example, children withheld from a parent gives the opponent the opportunity to alienate the children from that parent, or finances put on hold can sometimes result in un-recoverable losses).

                Even when one believes they are walking into an easy hearing, one needs a backup plan:  An alternative option for interim parenting time in case the judge refuses to rule, options for supervision of a parent accused of wrongdoing, options for moving the immediate financial needs along or freezing accounts to prevent further deterioration of a family’s finances.  The client needs to project the confidence of being prepared for the hearing to be easy, but needs to be ready for the possibility of needing a backup plan.  Too frequently, litigants disappointed by a high conflict opponent’s outrageous claims have messed up their own cases by being unable to adjust their expectations and agree to an intermediate resolution.  A judge does not react well to a litigant who, having been accused of wrongdoing, reacts outrageously, petulantly or obstructively.  The high conflict litigant knows how to push their opponent’s buttons, and will do so in the effort to convince the judge that the lies they have told are true. 

                Once you know that your opponent is a high conflict personality, it’s easier to prepare.  Make sure to ask the judge for plenty of time, and be prepared to enforce that time.  In their bag of tricks, every attorney needs several different ways to explain the need to enforce their right to cross examine, to have time to explore the issues. 

Kids, don’t try this at home:  In one particularly high conflict situation, I even had an assistant time my opponent’s obstructive objections, because the judge was not shutting him down and allowing him to ramble on and on (over my own objection).  When the judge explained that my time was over, I was able to give the judge the exact amount of time that my opponent had intentionally wasted, and the judge agreed to give me additional time to account for not only what my opponent had wasted, but also an additional amount of time to make up for the fact that I had not similarly intruded on my opponent’s case.  Ordinarily, the tactic I used to counteract this opposing attorney’s behavior would have only generated anger by a judge who had allowed their courtroom to get out of control.  I would not recommend it and hopefully will never have to repeat this strategy, but the thing that convinced the judge in my situation was that I had laid the foundation for this particular argument, objecting to the nature of the opposing counsel’s obstructionist objections in a way that made it clear that this issue had to be remediated by the judge.  I also had a plan in mind, and several alternative solutions to propose to the judge at the point where I needed to enforce my right to the opportunity to speak.  This particular judge, knowing my opponent’s reputation, had tried to rein him in by limiting our time, and it had backfired.   This judge was open to my suggestions when the time was ripe because of this background.  Without exactly this situation, I could have easily found myself being held in contempt.  In this particular case, the high conflict opposing party had sought out a lawyer who had a high conflict personality, and between the two of them, my team had quite a difficult job keeping the case under control.  In the end, we were successful, but it was a long and difficult journey in this case.  If anyone reading this blog feels that they need to try this tactic, they had better be a licensed attorney with a background in litigation, and they most certainly must have tried all the other options for limiting their opponent’s attempts to hijack the courtroom proceeding, and they must be very aware of what line must not be crossed, to avoid being held in contempt. 

 I will discuss another strategy of dealing with a high conflict opponent in my next post.