Times Have Changed
The Circus is in Town – Divorce Litigation Style
Some people have no choice but to jump into the fray of divorce litigation. In cases where a spouse is suffering from paranoia, is overly aggressive, has uncontrolled anger, possesses an unrestrained need to control, or just simply wants to be mean and inflict punishment, the tried and true method of divorce litigation is our strongly-recommended solution. There will be opportunities during a typical case for mediation and rational discussion, but all too often, if a spouse has a difficult personality or a confrontational lawyer, things will deteriorate.
At that point, when the spouses and their lawyers are unable to reach a conclusion, the need arises to go to the “circus” at the courthouse to have some motion heard or to have a trial to settle the divorce.
Truth be told, there are some lawyers who have trouble coming to conclusion, have trouble giving their clients practical advice, and have trouble playing fairly. Unfortunately, you can have the best, most knowledgeable, and extremely practical lawyer, but if your spouse hires the bully and/or overly-aggressive type, you are in for a ride on the circus train.
There is another – and better – way, but more about that later. Let me first describe the “circus” we call the Superior Court. It is not planned as a circus; there are no producers in the background hiring clowns, lions, tigers, and oddly-dressed carnival sideshow types – yet they are all there. All comers are welcome at the Family Session of the Superior Court. No problem if you can’t afford it, because you don't even have to pay for a ticket.Not only is everyone welcome – they all come to the show on the same day and the same time.
Court starts at 10:00 a.m., yet 30 or so people usually arrive early. You are not permitted to see the judge to decide your motion until you first meet with one of the highlytrained family relations officers.The goal is to see if you can work out an issue – such as why mom is saying bad things about dad, how much mom should pay for child support, or who is going to get to live in the house during the divorce. There are always a few “tigers” who run ahead to be first on the list to see family relations. They know that if you don't put your name on the list in the first hour or so, you may not be seen until much later in the day. If you are there with your lawyer, he or she is likely charging you for all or some part of the time spent waiting – for your spouse’s lawyer to arrive, for the family relations officer, or for your case to be called in the court. You may wait 30 minutes, or it may be hours before you are able to see the family relations officer. They are doing the best they can – listening to the never-ending stream of litigants all wanting to be heard, all frustrated or angry. These family relations officers skip breaks, they skip lunch, they do all they can, but it sometimes just takes time.
If you do work things out, you can’t just leave and go home. You still have to wait for a judge to get whatever you decided approved and entered on the record. You could skip that step, but considering how difficult it was to come to an agreement, and considering that the agreement is not binding on anyone unless approved by the judge on the record, you might as well take another hour or two to wait for a judge. You’ve already used up the better part of a day.
What would a circus be without a midway? TheHartford Superior Court has a narrow hallway filled with frustrated and angry people – those lions, and tigers, and bears. Some bring their children – how sad. Some of those kids are running around – alternately cute and misbehaving.Others bring their new significant others, which can really rile up those animal instincts. There is often yelling, there are vicious stares, and yes, there are even physical fights. It often does resemble a circus – unfortunately, without the fun.
THE BETTERWAY: First, here are some truths . . .
In 90% of the cases where people are fighting about access to the kids, both will ultimately end up with access, but only after spending months and thousands, or tens of thousands, of dollars on lawyers and experts. Of course there are times when a fight is unavoidable; in just the last few months I have been involved in some cases where the child was wrenched from the arms of the other parent and custody awarded to our client. It was sad, but the court thought it necessary and in the best interest of the child.
If the fight is about the money, the harsh reality is that in 90% of the cases, the argument will only be about 10-20% of the money. The court does not want to give it all to one or the other. People can fight for years, again spending tens of thousands of dollars, arguing over far less money.
If the disagreement is about the kids, they will be better off if the parents find a way to move on. If one party wants a divorce, it will happen.The children want to know that their parents are there for them, and available to help them. Parents don’t do that well if they are unable to show respect for each other.
Mediation and Collaborative Law are both better ways to handle a divorce. Of course we do the litigation if needed, but we recommendMediation and Collaborative Law if our clients and their spouses are willing.
In Mediation, if I am serving as the mediator, I meet with the spouses, often without other lawyers. We talk about their goals and expectations. It is my job as the mediator to provide a safe environment for both to express themselves. I do not make recommendations, but I can suggest alternatives. I can prepare the necessary paperwork to start the divorce case. I can, and do, prepare the written agreement which defines all the terms of the divorce, division of assets, any support obligations, and issues dealing with the children if there are any. Each party is urged to hire a lawyer of their own to review what we come up with, and to educate them on what they can or should expect. The emotional and financial cost is typically small in comparison to a full fight in the circus.
In Collaborative Law, we often include a mental health professional in the process to assist with the rough spots.We can include a finance professional to deal with complicated financial situations, a child expert to deal with serious issues concerning the children, or any other person needed for their special expertise or ability.The process is like mediation, but it happens at a slower pace. It is particularly helpful with situations where mediation seems impossible because trust first has to be rebuilt. In many cases, one spouse is angry or frightened. The Collaborative Law process allows for more time and the professionals help build a relationship.This is especially important for parents who recognize that they will be coparenting with the other for the rest of their lives. The goal is – as so many judges will say – for both parents to someday be seated together at their child's wedding, without the child worrying about whether they will get along. No one wants that special day to turn into a circus.
Mediation and Collaborative Law are better, kinder, and more efficient methods of settling a divorce. If there is no way to come to agreement other than through the Superior Court route, expect the chaos of a circus sideshow, and trust your lawyer to help you deal with the wild animals.
Abuse of the Vulnerable
As you may recall from an earlier article, we are representing victims against Saint FrancisHospital for the sexual abuse of children at the hospital by one of their doctors. We now write about a different type of abuse – that suffered by the elderly in nursing homes.
As of July 2004, approximately 36 million of our population – about 12% – were 65 years old or older. By 2010 – next year – an additional 78 million people will have turned 65. Yes, that is a more than threefold increase.Among the industries poised to benefit from the aging of America is the nursing home business.We will be in their care, along with our loved ones. We must hold them to their obligation to provide reasonable care.
Nursing homes – or “Extended Care Facilities” – provide rehabilitation and strengthening to patients coming out of extended hospital stays or surgical procedures. They provide respite care for sick relatives or someone in need of temporary care.Most significantly, they have become long-term homes for our aged friends and relatives who can no longer care for themselves.As our population continues to age, and as life expectancy continues to increase, the role of nursing homes – and legal claims related to the failure of nursing homes to properly care for their patients – will become more and more significant.
Nursing homes must provide a safe environment for their patients, many of whom are at risk from falls, infections, or medical complications. Many patients suffer from cognitive impairments such as poor eyesight, hearing loss, or dementia, all of which increase the need for skilled care. Nursing homes must do what they can to make their residents comfortable and engage them in social and physical activities.We should expect them to provide a high level of care to our loved ones, and should expect them to be held accountable when they fail to do so.
Americans’ feelings about nursing homes are not hard to gauge. A 2005 study by the Kaiser Family Foundation found that only 35% of Americans believed nursing homes did a ”good job” for their patients – a stark contrast to hospitals (64%), doctors (69%), and nurses (84%).This should come as no surprise; complaints of nursing home neglect are on the rise, and will continue to rise as more of our population enters such facilities.
Because they are charged with the complete care and treatment of their patients, nursing home neglect can take many forms. Immobile patients must be repositioned frequently to avoid bedsores or pressure wounds. Patients unable to comprehend their surroundings may require bed alarms to alert staff to their movements and to avoid injury. Patients with mobility restrictions may need assistance in dressing, bathing, and transitioning from bed to chair. Many times, safely assisting a patient requires significant time, work, or the help of multiple aides – tempting nursing homes to “cut corners” by making do with less. While cutting corners may help the bottom line, it places our loved ones at risk. Failures by nursing homes in any of the above situations can lead to catastrophic – and sometimes fatal – consequences to the patient.
As our population continues to age,more and more of our elderly will enter nursing homes, where we expect they will be treated with dignity, care, and safety. We are here to help. If you think someone you care about has not been treated properly, call us. We work closely with experts in the field to evaluate each case. We provide initial consultations without charge or obligation.Where there has been a failure of care that has hurt your loved one, we will work with you to hold the nursing home accountable.
“Bruce is a totally capable attorney with tremendous integrity and personal charm. He is responsive to his clients' needs and cares greatly about doing his job well.” –Client comment, 2008
Client Expelled from College for Cheating is Reinstated
We’ve all heard the well-worn phrase “thinking outside the box,” but nowhere is that concept truer than in the practice of law. Clients seek help with a variety of legal problems, and frequently there appears to be an obvious way to proceed. Creative solutions, however, can sometimes present a better way.
In a recent case, our client was a student at a local university who had been wrongly expelled after being accused of plagiarizing another student’s paper. Although the two students’ papers were virtually identical, it was clear that the university had made a mistake. Our client was the victim of plagiarism; our client had not copied the paper, rather, the other student had copied our client’s paper. However, the university refused to modify its decision. Our client was devastated, his education derailed, and his future uncertain. The “obvious” solution to the client’s problem would have been bringing suit against the university directly, alleging that their judicial proceedings violated due process. This path, however, presented serious obstacles, including the university’s sovereign immunity as an arm of the state, its essentially unlimited resources to defend such an action, and the high burden of proof required to prevail in a due process claim. We needed a way to show the university that they had made the wrong decision without taking them on in court.
We elected instead to sue the student whose similar work had caused our client’s expulsion. Our goal was not only to prove that she had stolen our client’s final paper – and thus clear our client’s name – but also to demonstrate that the university’s decision was therefore simply wrong and unfair. We believed and were confident that if the university heard that a court of law found the exact opposite result, the administration would then feel pressure to reverse their decision. At trial, we were able to present overwhelming evidence that our client was innocent of any wrongdoing. After four days of trial, the court found that the other student had taken our client’s work, awarding our client compensation for the value of his paper as well as over $25,000 in punitive damages. Although the case is on appeal by the other student, after receiving a copy of the decision the university agreed to clear our client’s academic record and immediately reinstate him. VICTORY!!
This case exemplifies the need for creative thinking when solving legal problems – something we keep in mind with every client we serve.Each case presents unique challenges, and in law, the shortest distance between two points is not always a straight line.
