Archive for the ‘Uncategorized’ Category

Holly at The Pervocracy (a blog dealing with gender and sexuality issues from an unconventional perpsective, so I’ll go ahead and call this NSFW for language and maybe subject matter) has worked as a paramedic and therefore spent a good deal of time in emergency rooms. From that, she has heard just about every excuse people make when they come into the hospital with injuries caused by a family member. “I fell down the stairs” is only the most famous one. It is far too easy in such situations, for someone who does not know the people involved, to conclude that weakness or stupidity could be the only reasons why someone might stay in an abusive relationship. That is simply not true, and it is especially important for lawyers and people embroiled in the family law system to understand why people may choose to stay with an abuser. Holly has made a list of many of those reasons.

To be clear, any gender in any sort of relationship can be an abuser (Holly mixes up the genders in her examples for that very reason). Abuse can be man-to-woman, woman-to-man, man-to-man, woman-to-woman, person-to-polyamorous-partners, etc. And “abuse” doesn’t just mean hitting, shoving, or breaking bones. It could include yelling, belittling, controlling, or anything else that would make one partner perpetually subordinate to another.

It is worth reading the whole post. She ends her post with a plea to her readers, and I pass that same plea on to you.

Usually I end these “long-list” posts with a cheery little “add your own!”, and while that invitation remains open (sadly, I’m sure there are tons that I missed), I’m going to add something to this one:

If any of these sound like you–even if they sound like you in a “yeah, but” sort of way–even if your partner never laid a finger on you physically, it was just some yelling–even if you’re a man and she’s a woman and it doesn’t work like that–even if you swear your situation isn’t abuse because–call this number:

1−800−799−SAFE(7233)
TTY: 1−800−787−3224

It’s the National Domestic Violence Hotline and they will talk to you. They are not going to call the cops on your partner (or you). They are not going to tell you that you have to leave your relationship. Calling them is not a commitment of any kind–you can always call them and decide to stay in your relationship after all. All they’re going to do is talk to you, give you an outside perspective from people who are trained to recognize and deal with abusive situations, and help you find resources for getting out of your situation if you decide that you want them.

There is much that lawyers and the family court system can do, but there is only so much. There are tools out there, if you are in an abusive situation, to help you help yourself. Please read Holly’s list if you think there’s even a chance you are in a bad situation, and please stay safe out there.

I’m still going with the perceptual vigilance theory. The latest is that Thomas M. Cooley Law School of Lansing, Michigan is suing a New York law firm and four anonymous bloggers for…..

wait for it……

…..defamation, for saying mean things about the school online (and, in the case of the law firm, for posting Craigslist ads re: a potential class action lawsuit against the school similar to the one filed against Thomas Jefferson School of Law earlier this year).

In one lawsuit, Thomas M. Cooley Law School, located in Lansing, Michigan, claims that it has been the victim of ads on Craigslist and Facebook – posted by attorneys at Kurzon Strauss LLP – seeking former Cooley law students to join in on a potential class action suit against the school. (Click here for an example.)

One of Cooley’s concerns with Kurzon Strauss’ online postings regard the school’s student loan default rate, James Thelen, the school’s general counsel, told the Law Blog.

For instance, the law firm allegedly claimed that there were reports of Cooley law grads “defaulting on loans at an astounding 41 percent” in various online posts, according to the papers filed by the school. Thelen claims the actual rate is 2.2 percent.

In the second lawsuit, also filed Thursday, the school claims that four “John Doe” defendants have been blogging and perpetuating online comments damaging to the school’s reputation, Thelen said to the Law Blog.

No matter what, I hope campuses will always have cute squirrels

Golly.

First off, I cannot think of a better way for a law school to take a relatively minor and obscure series of comments and complaints (in the form of the bloggers) and make it into something that could be known nationwide (cf. Streisand Effect). The scambloggers are going to have a field day with this. Let the battle begin…..

Second, in a lawsuit claiming damage to a law school’s reputation as a premier educational institution, the law school’s choices so far have been interesting, as Elie Mystal reports:

So far, the most damning statement about Cooley’s education has come from Cooley itself. Cooley president Don LeDuc said that the school filed these suits: “to protect Cooley’s reputation and stand up for our students and more than 15,000 graduates.”

And yet, of those 15,000 graduates, when it came time to defend Cooley’s reputation, the school went with lawyers who were not educated at Cooley.

Not only did the school not use its own graduates for this work, one of the anonymous commenters the school is suing appears to be a recent Cooley graduate. I mean, with friends like these, right?

Third, and I’m just brainstorming here, but isn’t it inevitable that a law firm, in seeking members for a class action, would say things about the potential defendant that would be construed as less than nice? Here’s an example of a firm seeking class members. And here’s what Kurzon Strauss posted to Craigslist re: Cooley:

My firm is currently conducting a broad, wide-ranging investigation of a number of law schools for purportedly manipulating their post-graduate employment data and salary information. Among the many schools we are investigating is the Thomas M. Cooley Law School which claims that 76 percent of its graduates have allegedly secured employment within nine months of graduation.

Finally, let me note the irony (if that is even the correct word) of a law school suing a law firm for defamation because the law firm is seeking plaintiffs for a class action fraud suit against the school. Cooley has to prove that the allegedly defamatory statements made by the law firm are not true, which is similar to the position Cooley would be in if the fraud case were to go forward (although the burden of proof would be on the other side there). Depending on procedural rules in Michigan, Cooley may have just opened itself up to discovery into all of its various claims regarding, say, employment statistics for its graduates.

The law school issued its own statement the day the suit was filed:

The Thomas M. Cooley Law School filed two lawsuits today to protect the reputation of the school and its students and alumni from defamatory Internet attacks. In the two actions, the law school asserts defamation and other legal claims against a New York City law firm, two lawyers in that firm, and four anonymous Internet bloggers.

“With ethics and professionalism at the core of our law school’s values, we cannot – and will not – sit back and let anyone circulate defamatory statements about Cooley or the choices our students and alumni made to seek their law degree here,” said Brent Danielson, Chair of Cooley’s Board of Directors and a retired District Court Judge.

[snip]

“Cooley has consistently and truthfully reported job placement and salary figures in the manner required by the American Bar Association (ABA), our accrediting agency, and by the National Association for Law Placement (NALP), a national jobs-reporting clearinghouse,” said Charles Toy, associate dean of Career and Professional Development at Cooley and the immediate past president of the State Bar of Michigan.

Consistent with all 201 ABA accredited law schools, Cooley’s job placement rates are reported annually to the ABA and NALP nine months after graduation based upon the results of graduate surveys in full compliance with the reporting methodology required by those agencies. Cooley’s reported job placement rates have ranged from the current 76 percent up to 82 percent in 2006, with a similar range reported back to 2000.

“Everyone has the right to state an opinion about Cooley, online or elsewhere,” said James B. Thelen, Esq., Cooley’s associate dean for legal affairs and general counsel. “But our lawsuits contend that these defendants have crossed the line both legally and ethically, -
smearing our reputation with blatantly false and often vulgar statements that they attempt to spread as broadly as possible.”

[more at the above link]

The complaints against the law firm and the anonymous bloggers are posted on Cooley’s website, where they will apparently be posting updates on the case. Between this and the Thomas Jefferson class action, it will be interesting to see how each side of this whole kerfuffle presents its case. Time for everyone to put up or shut up. Grab some popcorn (if you can afford some after making this month’s student loan payment, of course.)

Of course, these are all just the opinions of one guy with an interest in defamation law. Please, Cooley, don’t sue me.

For those living under rocks or in soundproof chambers, here’s a review of a few legal events of the past few weeks (trigger warning for sexual assault issues):

• Now-former IMF head Dominique Strauss-Kahn, accused of and indicted for sexual assault, has been released from house arrest, and prosecutors are considering dropping the charges, due to problems with the case related to the accuser’s credibility.
• Casey Anthony, mother of deceased 2 year-old Caylee Anthony, has been acquitted of Caylee’s murder but convicted of lying to police.
• Jamie Leigh Jones, a Texas woman who alleges she was drugged and raped by a fellow KBR employee while she worked as a contractor in Iraq and then imprisoned by her employer, lost her civil claim against KBR (also at least partly due to credibility issues).

Here we have three cases that strike incredibly sensitive nerves. One involves the murder of a child, and two involve rape. In all cases, the alleged aggressor seems to have prevailed. But the results of these legal proceedings do not mean that DSK’s accuser was not raped, that Casey Anthony is not a murderer, or that Jamie Leigh Jones was not raped and imprisoned in a shipping container. Prosecutors in New York may no longer feel that they could win a prosecution against DSK with the evidence they have, making it not worth the colossal expense of continuing the case. Florida prosecutors did not prove beyond a reasonable doubt that Casey Anthony murdered her daughter. A jury did not find a preponderance of evidence to support Jamie Leigh Jones’ case. In the last two cases, these were the conclusions of lawfully empaneled juries. We may not like the results. The results may make us sick to our stomachs. What is important, though, is that the system appears to have worked the way it is supposed to.

True, the victims did not get “justice” in these cases, but that is not the point of judicial proceedings. Alan Dershowitz wrote in response to the Anthony trial:

‘This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is “likely” or “probable” that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

If we try to go outside of the system of trial by jury, we become no better than an angry mob. A proposal of sorts has already appeared based on frustration over the Anthony verdict:

[Senate Minority Leader Mitch] McConnell drew a lesson Sunday from that case in connection with the debate in Washington over whether to try suspected terrorists in federal courts.

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

McConnell is only correct if the whole purpose of a trial is to secure a conviction. I don’t particularly want to get into the issue of terrorism trials here, but the apoplectic reactions to the combined acquittal/conviction of Ahmed Ghailani for the 1998 U.S. embassy bombings certainly show that for many, there is no point to having a trial if a conviction is not guaranteed.

In a civil case like Jamie Leigh Jones’, “justice” is more of a clear goal. Rather than proof “beyond a reasonable doubt,” a civil claimant need only show a “preponderance of the evidence,” meaning a 51% or more likelihood that their claims are true. Again, failure to convince a jury does not automatically mean the claims are false. It means that the evidence is lacking to allow for a legal remedy or punishment.

It is the responsibility of the plaintiff and the plaintiff’s attorney in a civil matter, and of the prosecutor in a criminal matter, to meet these burdens of proof. It is the responsibility of the judge to make sure the jury only hears relevant, probative evidence that does not unfairly prejudice one party or the other. The system is not perfect, but again, it is preferable to an angry mob.

There is no requirement that we like the outcomes of these cases. There is also no guarantee of justice in this world. There is, however, a system that has been in place for centuries that is imperfect, often inefficient, frequently infuriating, and the best protection we all have against even greater injustices than the occasional acquittal or dismissal. That is our system of trial by jury. To quote Voltaire, “It is better to risk sparing a guilty person than to condemn an innocent one.”

“R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

1. “Rakofsky Effect” has made it into Urban Dictionary:

Infinite pleading amendments as the unintended consequence of suing to censor your critics.

This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

This lemur has nothing to do with the case I am discussing. He's just cute.

There’s also a Twitter account I hadn’t noticed before.

2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

A few weeks ago, Zeta and I went downtown to join in an organized dog walk put on by a local animal welfare group. About a dozen people, with over a dozen dogs, took to the trail around Lady Bird Lake in the late morning heat. Zeta loved it–I must admit I don’t get her out of the house as often as I should, but then we are having a ridiculous heat wave in Austin right now.

Zeta really doesn’t enter into this story, as she remained oblivious to the finer points of human interaction. This is more about human behavior. One man brought his two dogs with him on a split leash. The dogs were certainly rambunctious, and it seemed like they were not too accustomed to being out among other dogs. They would sometimes quickly lunge at other dogs, but I could not tell for sure if they were doing this with any aggression or if it was just an attempt to play. I know my dog, when she is leashed, can make some sudden movements out of sheer excitement. The man generally kept the dogs under control. I was concerned at times about the way he seemed to be disciplining them–there was a lot of yelling, and the occasional sudden move toward one dog or the other, as if to threaten something. I didn’t say anything, as I hadn’t seen anything specifically objectionable.

Near the end of the walk, that changed. I was on one end of the group and this man was at the other. Out of the corner of my eye I saw his leg start to move, and I heard a sound like a field goal kick, followed by a whimper. A sense of shock delayed my reaction, but others standing closer to the man were quick to inform him, firmly yet as politely as possible, that kicking his dog would only make the problems worse. The man’s reaction was somewhere between defiant and apologetic. I do not think, based on my limited observations, that these dogs are being routinely abused, but nothing excuses the kick that I saw.

I think the people who were there did the best they could with the situation. It would not do any good to attack this guy, verbally or physically, and all anyone could do is inform him that what he did was wrong. This got me wondering, though, what any of us could have done if we suspected these dogs were being routinely abused. Of course the man could be charged with animal cruelty and could face fines and jail time, but what would happen to the dogs? Specifically, can one individual step in and rescue a dog or dogs from an abusive situation?

Yes and no, as it turns out.

This is addressed in Chapter 821, Subchapter B of the Texas Health and Safety Code. According to the statute itself, a “peace officer or an officer who has responsibility for animal control in a county or municipality” who thinks an animal is being abused “may apply…for a warrant to seize the animal.” If the officer can show probable cause, the judge or magistrate may order the animal taken into custody. The animal gets impounded, and a hearing must be held within 10 days to determine whether cruel treatment has occurred.

A private citizen does not have the power to petition a court on behalf of an animal believed to be abused. Furthermore, if a judge orders a warrant for the animal, the animal gets impounded, which typically means the animal goes to a public shelter or a private shelter contracted to the city or county. It’s far from ideal, but hopefully it would be better than staying in the abusive environment.

The animal’s owner can present evidence at the hearing. If the owner has a conviction or finding of animal cruelty in a criminal case involving this animal, that is automatically admitted as evidence of abuse. The owner’s statements at this hearing cannot be used against the owner in a criminal prosecution for animal cruelty, so the owner can freely present evidence and testify without Fifth Amendment concerns. The statute does not say what the burden of proof is for the hearing, but since it is a civil matter it is probably a preponderance of the evidence standard.

If the court finds that no abuse has occurred, the animal is returned to the owner. If the court finds that abuse has occurred, it gets complicated.

If the court finds that the animal’s owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall:

(1)  order a public sale of the animal by auction;

(2)  order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or

(3)  order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.

This is a tough thing to wrap one’s head around. On the one hand, these laws recognize and protect the rights of animals to be free from abuse and pain. The statute that criminalizes abuse of “nonlivestock animals” defines “cruel manner” as “a manner that causes or permits unjustified or unwarranted pain or suffering.” The statute that protects cruelly-treated animals allows for the prompt removal of an animal from an abusive situation. This is analogous to the statute allowing the state to take possession of children when there is an immediate danger to the child’s health or safety. On the other hand, these laws treat animals as personal property to be sold once the owner’s rights have been terminated by the court.

We don’t have to solve the property question right now, though. An animal has value sufficient to warrant legal intervention if abuse can be shown to have occurred. It requires the involvement of a police or animal control officer, which may or may not be easily available depending on where you live. Of course, I can only speak to the laws in Texas, but I suspect other states may have similar procedures.

A few weeks ago I wrote about a case in Texas involving a cheerleader, a sexual assault case, and a First Amendment claim.  I have since come across the actual court opinion from the Fifth Circuit (PDF), and it is worth a read.  However horrifying the facts of the case may be, I have to agree that nothing constituted a First Amendment violation.  This story seems to have mostly passed out of public awareness, but it seemed worth a brief follow-up. Since I last wrote about it, the “loser pays” bill in Texas has been the talk of the town. I hope this girl can find some other path to justice.

Remember the Rule Against Perpetuities?  If you’ve never been to law school, then hopefully the answer to that question is no. (WARNING: this post is likely to be one giant lawyer inside joke.)

Black’s Law Dictionary (via Wikipedia) helpfully defines the Rule as:

[t]he common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created.

If you did not find that definition helpful, you are not alone. The Rule Against Perpetuities has been the bane of first-year property classes throughout the ages.  I learned it well enough to get a B in my property class and then promptly forgot it.

I was therefore quite surprised to learn that the Rule was recently applied in a real estate dispute that has stretched over almost a century:

Remember the rule against perpetuities? It played out in real life concerning a cantankerous Michigan lumber baron’s will, finally putting an end to a $100 million waiting game for his heirs.

Not allowed to collect their share of Wellington Burt’s fortune until 21 years after the death of his youngest grandchild in existence when the patriarch cashed in his chips, the 12 great-, great-great- and great-great-great-grandchildren among Burt’s surviving descendants are expected to see his trust open by the end of the month, the Associated Press reported. The heirs range in age from 19 to 94 years old.

Burt died in 1919.

It’s good to know that those weeks spent learning the Rule weren’t completely for naught. It provided us with hours of hair-pulling madness, and now, no matter how difficult a legal question may be, at least it’s not as bad as the Rule Against Perpetuities.

Plus, it led to at least one awesome parody:

I organized a group of lawyers to volunteer at Town Lake Animal Center this past Saturday.  I’ll just say this: everyone should go to their nearest animal shelter, even if you don’t want or have the ability to care for a new pet, and at least spend some time interacting with the animals there.  It’s great for the dogs and cats, and it’s great for the people as well.  Who knows–you might leave with a new best friend.

Casey needs a new forever home!

Tyra has "happy tail" and wants to meet you!

Casey and Tyra are wonderful dogs and could be a great addition to someone’s family.  A particular place in my heart, however, was stolen by Doodle, who has to be seen in action to be believed.

Doodle is a bundle of joy and yappy energy

Doodle is happy to meet you!

Adopt a pet today!

Texas cheerleading is something of a religion unto itself. It also has a peculiar history of scandal and other legal oddities (I’m looking at you, Wanda Holloway).  The latest news, involving a cheerleader known only as H.S. (or M.S., depending on where you look), should not be lumped into the strange history of Texas cheerleading, though, as it involves some thorny questions that still have my head spinning.

In short, in 2008 a cheerleader was sexually assaulted by a basketball player, who plead guilty to misdemeanor assault but never went to jail.  A few months later, she refused to cheer for him during a free throw, and was expelled from the cheerleading squad.  Her family then sued the school, alleging violation of her First Amendment rights.  The courts disagreed, and the Supreme Court has declined to hear the appeal.  She is now stuck with a $45,000 tab for the school’s legal fees.

I can’t possibly go into an in-depth analysis of this with the little information that I have.  I was initially content to tweet a few links about it yesterday, but a response that I received to a tweet got me thinking about the situation:

Truth be told, at the time I wasn’t sure why I retweeted the story–it just seemed important. Upon reflection, I think it is all of the reasons stated in the reply.  It is (I certainly hope) impossible not to feel sympathy for H.S. in this case.  The sympathy is certainly pouring out all over the internet, as well as outrage.  Not knowing all of the facts makes it especially frustrating–how did it get to a point that she was apparently forced to decide at court side whether or not to cheer for this guy?  There appears to be no question that he is guilty.  On the one hand, why would she want to put herself in the position of having to maybe cheer for him, but on the other, much bigger hand, why would the burden be on her in the first place??? I don’t know why he isn’t in jail, and I won’t speculate.  I also don’t know why, a few months after pleading guilty to assault, he was still playing basketball.  That may be a discussion for another day.

Bottom line, it seems wrong that this situation even happened.  How did these two people end up back in these same roles after what happened between them?  It is very easy to feel the greatest sympathy for her, for making a seemingly simple and rational decision and being punished for it.

Then we come to the lawsuit itself, and my sympathy becomes, uh, conflicted.  I just don’t see any sort of First Amendment claim here.  The courts concluded, to put it briefly, that in her role as cheerleader she was a spokesperson for the school, and her job was to perform or say what the school wanted.  That makes sense (in the absence of the emotion of this particular case).  At least in theory she had other options besides a federal constitutional lawsuit.

That brings us to the outcome–the case was dismissed, and she must pay attorney’s fees as a result of filing a frivolous claim.  I cannot honestly say that the claim was not frivolous, but I cannot say that the court’s order is just.  This illustrates a point that is often lost on many people, lawyers included: just because an action is legal (or not illegal) does not mean it is proper, and just because a form of relief is available, does not mean it is just.

Perhaps the cheerleader was wrong, in the context of her job as cheerleader, to refuse to cheer.  Perhaps the school was justified, in the context of a cheerleader who refused to follow procedures, to kick her off the team.  It seems so tidy on paper, but what on earth were they thinking?

The lawsuit, from a legal perspective, was also wrong (in that it made a claim not supported by the law).  A common remedy for someone subjected to a frivolous claim is to have their opponent pick up the legal bill.  But again, is that really justice in this case?  I can’t say the court was wrong–they applied the law, as far as I can tell.  I also can’t say the court was right.  Everyone was right, and everyone was wrong in this case.  And I couldn’t say that in 140 characters.

UPDATED: Here.

A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas.  The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.

A good litigator will always look for the facts or legal principles that will best serve their clients’ interests.  At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties.  Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy.  This is often why litigation is such a poor mechanism in many (not all) divorce matters.  These are not litigants in a business dispute or opposing sides of an auto accident.  These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows.  When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation?  While it may be unavoidable in some cases, I would say no, it is not ideal.  The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:

When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose?  You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat.  “I’ve got it, there must be a Tort that will work,” you think.  Maybe there is.

The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery.  The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.

Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery.  Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law.  What this article brings home for me is the type of situation in which the collaborative model would not work at all.

I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:

[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.

The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse.  I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.

I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.