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A Certain Appeal

I confess: I like doing appellate work. There’s a certain masochistic joy for me in such highly specialized writing. Every word matters. Every comma counts. You have to know your opponents’ arguments better than your own, and be prepared for everything. You have to cite cases on point, and distinguish the ones against you. Fifty or sixty pages later, you have something theoretically approaching coherency, and you file it in and mail your copies and hope for the best. Months later, you learn the result of your toils.

Sometimes, it’s one sentence.

Reversed and remanded.

Sometimes, it’s one word.

Affirmed.

Sometimes, it’s an opinion that changes the landscape of the law. Sometimes you win. Sometimes you lose. But the thrill is always there, and for an extreme introvert like me, the benefits are myriad. No oral argument. Little client interaction. It’s just you and your cases, and your legal pads, your notes and dictionaries, your transcripts and Blue Book. It’s trial and error, edits and rewrites, margins and paragraphs and page counts and formatting. It’s not something anyone should enjoy doing, and yet there’s a perverse sense of satisfaction in creating something from nothing.

I liken it to what a parent must feel when their child leaves for college. Your creation, the thing you’ve poured your heart and soul and blood and sweat into, this miniature reflection of your own self; it’s hard to let go. It’s hard to send it into the world and trust that you’ve done all you can to prepare for the inevitable battles ahead. You spend sleepless nights throwing things around in your head: Was it enough? What more could I have done? You are never, at any moment, not afraid of losing, even as you know not to internalize and that it’s just a job.

Some days, the words flow like rain. Some days you fight the temptation to throw every book you own out the window. In the span of one afternoon, I’ve quit my job, applied to medical school, moved to the beach, written a novel, and seriously considered a career in college football coaching. Twenty-four hours later and twenty pages behind me, I’ve decided it’s the greatest thing in the world. It’s alternatively ridiculous and worthwhile, important and meaningless. It’s a tidal wave of emotions that doesn’t retreat at 5:00 every day.

The Alabama Rules of Appellate Procedure, Rule  31(a) mandates that appellate briefs are due within 28 days of the completion and certification of the record. Twenty-eight days are all you get. Day 29 will be here soon, and part of me is already dreading it.

Children and Divorce

Kara Bishop at HuffPo has a great article up about children and divorce. Written from a child’s perspective, it provides great insight into what children often think as their parents go through a divorce. Divorce is never easy for anyone, but can be especially difficult for children who are caught in the middle of things.

 

1. Don’t Say Bad Things About My Other Parent
This rule comes up every time we’ve done the exercise and almost always in the top five. It also seeps into many other exercises, from one where kids express their feelings artistically on postcards (see example below) to one where kids role play an advice-giving radio talk show. They really want to know how to stop the “bad-mouthing,” especially those kids who have actually asked their parents to stop only to be told “you need to know what kind of person your ____is” or, “it’s not bad-mouthing if it’s true.”
The kids want you to know that they “don’t care if it’s true;” they just “want it to stop” because “hearing bad things about someone I love hurts my heart”.
The above rule is so pervasive that even after isolating it, it haunts our next rule:
2. Keep Us Out Of Adult Stuff
Bad mouthing the parent doesn’t have to be an outright proclamation. It can be the subtle or not so subtle release of information beyond the child’s years of comprehension and/or need to know. There is no educational or emotional value in telling a child, “there will be no ____ because your other parent is behind on child support,” or “your ____ left us because they’re boinking a co-worker”.
3. Don’t Make Me Feel Bad For Loving The Other Parent
At 11, Aaron (the inspiration for my work in this area), was the only child of three still willing to endure his mothers wrath in order to continue seeing his dad. He braved being called “stupid just like your dad,” constant questioning — “why do you want to be with the person who broke up our family?” — and having his bags packed by the front door after being told, “if you like him so much, just go live with him.”
By 14 he had given in, but only after the entire other side of the family sat him down and told him he was being a “traitor to his real family” for continuing to see his dad against his moms wishes and that he had to choose “us or him.”
What I really want parents to understand is that while they may think their actions are only punishing their ex, they are also (and often even more so) punishing their child.
I’m pretty sure every parent reading this can imagine how sad and deprived their child would be without their special love. Can being deprived of the other parents’ love be any less sad? With that knowledge, would you still do something that makes your child any degree of sad, just to punish your ex?
4. Learn To Get Along For Big Events
Kids want and deserve to have both parents at their game/play/graduation. You don’t have to stand next to each other, but don’t “hide the date” from the other parent.
5. Don’t Make Me Choose Sides
They want you to know this is “the worst thing you could ever make a kid to do.”
6. No Fighting In Front Of Us
As a prelude to one of our coping exercises, the kids have to pick a common situation that makes them so uncomfortable that they have to “get out of there.” Seeing or hearing their parents fight is the one that comes up the most.
7. Don’t Make Me A Messenger Or Put Me In The Middle
Even sending simple messages through your child is a burden. It’s not their job to remember to pass the message along, get the message right, get an answer and then deliver the response back to you. They want you to “find a way to communicate.”
8. Don’t Share Or Take Your Anger Out On Me.
This one probably has the most variety in how it’s written: “Don’t share your anger with me,” “shelter me from your anger,” “don’t take your anger at them out on me.” But my favorite is “let me still be a happy kid.”
9. Don’t Ask Me To Spy
Our November group had a girl who was actually given a notebook to write her observations in. It’s heartbreaking to understand that her sharing of this deed was really more of a confession. She knew it was wrong, but wanted to be an obedient daughter.
10. Give Me One-On-One Time With Both Parents
This rule and “give me equal time with both parents” would actually be higher on the list if we didn’t separate them from their kin. But because there are powers (courts) that may keep this rule from becoming a reality, we often suggest that the kids try to steer away from the “equal” wording. That works about half the time. But not at all when we have one of those rare kids who gets to stay in their home while their parents rotate in and out. Then the request becomes downright insistent: “we stay home, you switch houses every week!”.

Coke Commercials and Clients

Probably my least favorite commercial in the last ten years is that Coke commercial where the guy keeps getting stuff in his life, a job, stock options, etc., and every time asks, “And?” afterwards, like, where’s the rest of it? A lot of times clients can be like that. One exchange in particular this week reminded me of that commercial.

Client: I still haven’t received my child support.

Me: I’m sorry. I guess the court is backed up. We’ve given them everything they need. Shouldn’t be much longer.

Client: So when will I get my child support?

Me: Again, I have no control over that. I will call them and see what the holdup is.

(Ten minutes later…)

Me: Good news! Everything is in place. We just need the Judge to sign the order and you’ll start getting your child support.

Client: And then what?

Me: What do you mean, ‘and then what?’ Then you’ll get paid.

Client: Ok, but what happens when he signs the order?

Me: You will get your child support per Rule 32 of the Alabama Rules of Judicial Administration.

Client: I know, but then what?

Me: Then, you magically begin to receive child support.

Client: Ok, but then what if he doesn’t pay it?

On Employees…

“It might be said that it is the ideal of the employer to have production without employees and the ideal of the employee is to have income without work.”
-E.F. Schumacher

 

After hiring (and firing) my first employee this quarter, I thought it might be helpful to share some things I learned throughout the journey. This may be helpful for employees and employers alike. Or it might just be me venting to no one in particular but this is what we’re doing today so let’s roll.

1. If you ask a potential hire if there are any red flags you should be made aware of, and they kind of awkwardly laugh, walk away.

2. If in your initial interview with a potential hire, you ask why they were fired from their last job and they kind of awkwardly laugh and mention “something about statutes of limitations”, why yes, walk away.

3. If you mention having regular, predictable office hours, and your new employee is late the first day, and every subsequent day after, you should say something about it, but then after three consecutive months of it, walk away.

4. If your new employee bemoans their lack of ability to purchase health, car, dental, life, or any other type of presumably valuable insurance, but smokes two packs of cigarettes a day, you should consider this entire sequence one giant, blinking red flag for which only one remedy remains: walk away.

5. If, after several conversations with your employee about communicating and/or not showing up for work, and/or work not being completed to your satisfaction, said employee doesn’t show up for work one day, and then when you casually text them to see, you know, if they’re coming in to work, and they call you in a fit of cursing rage, accuse you of being the reason they’re broke, while they presumably are smoking a cigarette, and then accuse you of being on drugs, and then you finally tell them not to come back anymore, yet they still inexplicably assume they still have a job there, so you send them a termination letter and THEN they start with the emails about you stealing from people and being lazy-slash-incompetent-slash-unethical, you can only look yourself in the eyes and regret every day you didn’t just walk away.

 

Why Soon-To-Be Exes Should Stay Out of Court

This is a great article by M. Marcy Jones regarding avoiding the court process in divorce and custody cases.

 

Here are my top five reasons why soon-to-be exes should stay out of court:

  1. Litigation is the most expensive and least effective way of getting divorced.
  2. It destroys family relationships. It’s hard to co-parent after you annihilate your spouse in court.
  3. It’s incredibly stressful for the whole family, especially your children.
  4. It takes forever! Dockets dictate the pace of your case.
  5. No one wins when you go to court. It’s definitely a lose-lose situation.

Ms. Jones correctly highlights some of the newer alternative dispute resolutions that are becoming more popular in family law cases, from traditional mediation to collaborative law. It will be interesting to see if the trends continue to shift away from in-court battles to more unconventional (but more effective) methods of resolution.

 

M. Marcy Jones: Why Soon-To-Be Exes Should Stay Out of Court.

Top Ten List Of What Not To Do In Divorce Court

Shout out to attorney Edra J. Pollin, although this list is probably more useful to my own clients than the general public. Entertaining nonetheless.

 

1. Do not roll your eyes, mutter under your breath or otherwise gesticulate when your spouse is testifying. Although justice may be blind, most judges are not. To the contrary, they are usually astute observers of body language who rarely appreciate one party’s use of facial expressions to mock the other spouse’s testimony. If your spouse is misrepresenting facts to the court, pass a few brief written comments to your attorney and patiently await their brilliant cross examination.

2. Do not keep referring to your child as “my” son or “my” daughter. More often than not, a parent who consistently uses the singular possessive pronoun with regard to the children is a parent who is singularly possessive about who should raise them.

3. Make sure that you’ve disclosed relevant and potentially embarrassing personal facts to your attorney early on in the case. Many years ago when I was a public defender, I represented “Jordan” who was charged with driving under the influence of alcohol. At the first office appointment, Jordan provided me with a detailed description of his performance on the roadside sobriety test, but he neglected to mention that when he exited the vehicle he was wearing a “teddy” negligee and a pair of high heels. Although Jordan’s was a criminal case which was resolved without a trial, his story bears repeating for divorcing spouses whose personal habits are relevant to their case.

4. Don’t bring your entire extended family and ten of your closest friends to your divorce hearing. During a marriage, most spouses would think twice about sharing their income tax returns or the intimate details of their relationship with third parties. When a marriage is ending, some divorcing spouses abandon this rule of privacy and assume that inquiring minds want to know everything about the divorce. If you need a support system to get you through the trial, pick no more than two people to sit quietly in the bleachers of the courtroom.

5. Don’t wear your torn blue jeans, your muscle shirt or your mini skirt to divorce court. Strange but true, months of trial preparation can be undone in an instant by a client who is dressed to tease rather than to testify. A provocative outfit may be great for the weekend after your divorce but it’s a fashion disaster for your custody case. When you select your courtroom attire, pretend you’re heading for a job interview. In some respects, you are.

6. Do not be rendered speechless if you’re asked to describe the positive aspects of your spouse’s parenting. A child custody case can be won or lost with the single question, “Can you describe some of the positive aspects of your spouse’s parenting skills?” On occasion, this question is followed by a pregnant pause as the witness scrambles to identify one favorable aspect of the other party’s parenting. If you can’t say anything positive about your spouse to the court, you’re probably not saying anything positive about your spouse to the kids.

7. Don’t display open hostility toward your spouse’s attorney. Your spouse’s attorney is probably not on your Christmas list. If you’re openly hostile toward opposing counsel during your cross-examination, you’re probably scoring more points for the other team than for yours. Keeping your cool on the witness stand is a great way of saying that you have nothing to hide.

8. Don’t read or receive text messages during the hearing. If you want the Court to pay full attention to the testimony, make sure that you do the same.

9. In a child custody dispute, don’t keep talking about “your” needs and “your” desires. Custody cases are determined based upon “the best interests of the child”. At trial, it is a safe assumption that the court doesn’t particularly care about you or your spouse, but the court cares deeply about the child(ren) you have created together.

10. Don’t tell long winded stories with irrelevant details of your spousal disputes. In divorce court, most judges have full dockets, sore backs and a desire to make it to lunchtime without an emergency hearing. If you’re asking the court for a protection order, describe the alleged spousal abuse and avoid the temptation to explain the minute details of the domestic dispute which precipitated the abuse.

 

Edra J. Pollin: My Top Ten List Of What Not To Do In Divorce Court.

Mediation offers a quicker, cheaper path | al.com

 

 

 

 

 

 

Memorandum: Mediation offers a quicker, cheaper path | al.com.

Great article from The Birmingham News regarding the advantages of mediation. From the tangible benefits of cost controls and efficiency, mediation provides hidden benefits that may not seem apparent at first.

First, mediation is far less stressful than going to trial. Judges in Alabama are overworked and understaffed, and have literally thousands of cases on their dockets. Beyond the obvious truth that going to trial is exorbitantly expensive and time-consuming, there is no guarantee that your outcome will be any better. The simple act of getting a trial date scheduled can take months, the discovery process further delays things, and by the time you get to the trial date, most parties are exhausted and out of money.

Second, mediation is easier on children. A case going to trial requires the appointment of a guardian ad litem, a lawyer who represents only the children, and requires meetings with them and transport to and from lawyer offices and the courthouse. Mediation can usually be resolved in one day, which limits the stress and confusion for children.

Finally, mediation is the last resort to a client and their spouse determining their fate. A client and their spouse alone understand the nuances of their relationship and are in the best position to work out issues such as custody, visitation, and property division. Going to trial puts these issues into the hands of very capable judges, but judges that do not know the parties and will not be able to understand the emotions and details from a long marriage. Mediation gives the parties control over their divorce, which ultimately makes things easier on everyone.

 

Introduction

Welcome to my blog! I’ve been told I need one for a while, so consider this the taking of the plunge.

I opened my own private practice law firm in Birmingham, Alabama in 2008 with a focus on family law and domestic relations. Unbeknownst to me, specializing in family law ends up bleeding into many other areas of the law. When a divorce client needs a will, suddenly you’re an estate planning lawyer, and when a child support client goes to jail, well, you unwittingly become a criminal defense attorney. It’s exciting and challenging, and a journey that I’m happy to be a part of.

Check out my website, www.bradjlatta.com, and check back here for regular updates.