About a Hearing & My Facebook Page…

Earlier this week I had a court appearance, walked in without a clue that it was going to be on TV – the station was there for another case but decided to cover my hearing as well as it was about something that was very much in the news at the beginning of the summer.

The hearing was short and sweet and went really well. A good day. That evening, I found the video on Myrtle Beach Online, and shared the link to Facebook with the caption: I made my quarterly TV appearance yesterday, check it out if you have 2 minutes and two seconds.

Well, a lot of you did have 2 minutes and 2 seconds and your responses were great. I checked the page a few times that day and into the next, felt good, went on with everything else – it is a busy time of the year. Then a friend from Connecticut – he has a law degree but no longer practices, he’s a consultant of sorts – called and, well, put this is a vastly different perspective.

He was ‘blown away’ by the post’s reception. He said, clearly and often, that ‘no New England attorney would have posted that video.’ Doing so, he went on, ‘would have invited every kind of Facebook troll known to man.’

As he explained it – and he is in a position to know – there are areas of the country where an accused getting bonded out of jail is not looked at the way my friends and followers and clients looked at this case,that is, as a function of our inherent right to be viewed as ‘innocent until proven guilty.’

“Sure,” he said, “everyone gives great lip service to ‘presumed innocent’ but the reality up here is more along the lines of ‘you get arrested, you must have done something. It’s simply pervasive.”

Pervasive and no one is very shy about sharing their beliefs by commenting on Facebook and LinkedIn posts.

He gave me enough examples that I not only completely believed him but just shuddered at the images he conjured.

So, consider this a Thank You to everyone who takes the time to read my posts and say such nice things and share with their friends. You get it, you understand, and I applaud you for it … not that I expected much different from fellow South Carolinians.

But, Enough About Waterloo

Written with my friend and colleague, Jenny Bradley of Triangle Smart Divorce in Cary, North Carolina. 

As family law attorneys, we’re asked a lot about ‘what sort of person don’t we want as a client’. There’s a few potential answers, of course, but one type of personality is almost always at the top of the list. You’ll recognize it right away. Here’s an example from history:

We still talk about it today, it was the defining moment of the 19th Century. June 18, 1815, the Battle of Waterloo. The ‘near-run’ battle that saw Napoleon defeated for good and the end of twenty-plus years of almost continuous warfare throughout Europe.

It was a brutal day and the battle wasn’t decided until late evening. The Duke of Wellington, a stoic rock on the field, collapsed that night, in tears, shaking with emotion, he tried to sleep on a pallet while a trusted aide was lying on his bed, dying. He didn’t write his report on the battle until late into the next day, while the wounded were still being culled off the field.

In the days before telegrams, it was a great honor to be chosen to deliver a victory message back to London. Wellington’s choices were few, many of his aides, his second in command, dozens of generals were dead, dying, or badly wounded.

Wellington finished his report and gave it to Lieutenant Colonel The Honourable Henry Percy, his sole surviving Aide-de-camp.

Percy set off for London, still in the uniform he wore at Waterloo. He reached London at 10 PM on the 21st. He tried to present the dispatch at Downing Street, everybody who was anybody was at a dinner party being thrown by a certain high society hopeful named Mrs. Boehm. It was the social event of the year. Percy jumped back in his carriage and went directly to the Boehm home where he was told he would find His Royal Highness, the Prince Regent, soon to be King George IV.

He rushed into the home carrying two captured French Eagles. No one who was there ever forgot the pure drama of the moment when Percy approached the Prince, knelt, and proclaimed, “Victory, Sir, Victory!’

No one, that is, except for Mrs. Boehm. Her take on the historic moment:

“Very few of His Majesty’s subjects ever had a more superb assembly collected together than I had on the night of June 21st, 1815.

That dreadful night ! Mr. Boehm had spared no cost to render it the most brilliant party of the season, but all to no purpose! Never did a party promising so much, terminate so disastrously! All our trouble, anxiety, and expense were utterly thrown away in consequence of—what shall I say ? well, I must say it—the unseasonable declaration of the Waterloo victory. Of course one was very glad to think we had beaten those horrid French ; but still, I shall always think it would have been far better if Henry Percy had waited quietly till the morning, instead of bursting in upon us as he did in such indecent haste.”

‘Such indecent haste.” That sums it up. The one type of potential client we we really can’t abide, the ‘yes, but what about me’ person. No matter the circumstance – sickness, bad weather, natural disaster, news of the battle that changed European and World history forever – it’s all about them.

Not the ideal client in a family law setting.

About Changes

We deal in change. Almost all of our clients come to us to effect a significant change in their lives – adoption, separation, divorce, and more.

These changes are almost always positive – regardless of how it seems at the time. But changes like those we work on everyday necessitate other changes.

The most important being a will. After we do our thing and your family has a new child, or you’re ready to get married with a prenuptial in place, or you’re newly separated or divorced, you need to redo your will and other estate planning documents. Immediately.

How important is it? Very. We know changing wills, health care proxies, and/or pension and insurance beneficiaries are not the first thing on anyone’s mind at any time Most people make a will and file it in a dusty drawer for years without ever thinking about it again. Sometimes that’s fine. Most times it’s not.

Because wills don’t’ automatically change to match circumstances and unlike insurance and pensions you don’t get a notice from a company telling you to check that things are current.

Forgetting to make a change can be catastrophic. Just check in with the estate of one of the great actors of our time who died too early – Philip Seymour Hoffman.

The good news was that even though both actors died so unexpectedly they had wills even though they weren’t married. The bad news is that they executed wills around the time they both broke through in their careers then never updated them.

When Hoffman made his will in 2004 he was in a long-term relationship and had one child. The will left everything to his companion, Marianne O’Donnell, and their son. When he died in 2014, Hoffman was still with O’Donnell and they had two more children.

Because the will only mentioned his son, the estate is hamstrung, it does not have the options it should to take care of O’Donnell and the children without crippling taxes. Apparently, Hoffman did not believe in marriage, which would not have been a problem with the estate had he simply updated his will upon the birth of each child.

As it stands now, the estate has the choice of paying those enormous taxes or setting up a trust solely for the benefit of Hoffman’s son and hope that he provides for the family. Hoffman’s son is thirteen.

Perhaps in all of law there is nothing easier to fix before the fact…. please call us for a free consult.

Speaking of Brad Pitt … and family law

A little over a week ago we published a blog piece about a great David Bowie song, Putting Out the Fire. We included a clip from Inglorious Basterds where it was used to memorable effect. Right away we posted it, something else hit us. Inglorious Basterds featured one of Brad Pitt’s best roles, Aldo Raine, the Jewish, hillbilly from Tennessee who hunts down Nazis – which he pronounces Noz -zis.

Two things hit us. First, Aldo Raine and Billy Beane (Moneyball) are scarily similar characters. Second, Brad Pitt just went through something that some of our clients have been through and it looks as if it was every bit as unpleasant for him as it is for clients.

It was the stuff of tabloid front pages for months – Angelina Jolie and Brad Pitt were getting divorced, Angelina was the one who filed. That news filed the airwaves, TMZ, and the covers of every magazine and tabloid, About a week after that scintillating news, a bigger story broke: Angelina filed because Pitt abused one or more of the kids during a flight on their private plane, something that escalated when it landed in Minnesota. That paired with the revelation that Jolie was seeking full custody of the children threatened to put the Presidential election on the back pages.

Details, of course were sketchy. Brad was verbally abusive, Brad hit a kid, the altercation was in the air, the altercation was on the tarmac, Brad was drunk, Brad was sober when it happened but got drunk after, people were pushed, no one was touched, Brad and Angelina were arguing and the kids were upset … and every possible combination of the above were reported. Over and over and over.

When Brad and Angelina arrived back home in Los Angeles, the Department of Children and Family Services became involved. While no one claimed responsibility for contacting them, they are duty bound to investigate allegations of abuse … they could hardly ignore allegations on every TV channel and social media feed. As most people making an allegation, however obliquely, know.

In any event the investigation became news. Meanwhile the divorce moved along. Then came the announcement that because the alleged incident happened on a plane, the FBI would have to investigate. In a few weeks the news was that the FBI had ‘expanded’ the investigation in Pitt’s actions. Through it all Brad was not allowed to see the children.

So, to summarize, Brad Pitt was dealing with a divorce, his wife was claiming full custody, he was very publicly being investigated by Children Services and the FBI for abuse. Not the optimum environment to navigate a family law issue.

After several months of this, Pitt was cleared, both investigations were dropped. A few days after that, Pitt and Jolie agreed to joint custody. In the end then, nothing happened. But, this had the potential to be so much worse.

What made this an okay outcome for Pitt is probably the fact that he kept quiet through the whole thing. No statements of outrage, and, more importantly, no counter-accusations. He didn’t feed into it, he didn’t burn bridges, he didn’t open his mouth and confirm that he has a temper. He did what we ask ALL our clients to do. Not easy inthe face of allegations.

We see these kinds of situations every day. An accusation is made – frequently for leverage. By the time it’s found to be baseless, words have been said, actions have been taken, things have been made much worse. The tragedy is that it doesn’t have to happen. As Pitt and his lawyers show.

David Bowie, Inglorious Basterds, and My Practice

A little while back there were a series of movies that explored unintended consequences. Films like Crash, Magnolia, Traffic, Babylon, all somewhat based on the theme that a series of random events come together over time to seamlessly intersect and effect, profoundly, the protagonists’ lives.

These films were critically acclaimed for the most part and certainly did well at the box office. Probably because everyone wants to think there’s some kind of plan guiding day to day events and contact with our fellow humans.

A few critics found fault with them. The chief complaint was that ‘it’s unrealistic.’ Things don’t come together so perfectly in real life. ‘Matt Dillon is never going to get the chance to save the women he wronged, what are the odds.’

As someone who has made her career involved with the nicest people during one of the worst times of their lives, I have a rather different take on these films. I see it in my practice. Not the random acts, per se, but certainly random words.

That is, words said when a family law issue begins tend to bounce all over the ether and end up – almost always – at

the exact place the person who said them would least like them to go. Inevitably.

That is the one clear message in family law. Family issues are tough. The process is stressful, almost debilitating. It’s a lot of things, few good. One thing it most certainly is not, however, is the time to do or say something that will have lasting effect across a swath of relationships, past, present, and future.

That’s a solid lesson. Some people, though, remind me of a great song. The late, great David Bowie’s Putting out the Fire – if you saw Inglorious Basterd’s you know the song – and can never forget the scene. (see below).

Some of the lyrics go this way:

Ya wouldn’t believe what I’ve been thru
You’ve been so long
Well it’s been so long
And I’ve been putting out fire
with gasoline
putting out fire
with gasoline

Another line lays it out further: “A judgement made can never bend.” These lines go perfectly together. Family law issues are, obviously, flammable. Emotions are there, usually smoldering. Tossing fire on it has the obvious effect. And, more often than not, leads to irrevocable breaks – a burnt bridge.

Looks simple, but it’s not. Emotions at the beginning of a divorce, custody, name the process, run high. Very high. When emotions run high, thought is not usually present the way it would and should be before one says something. Internal censors don’t really function.

A tirade, even a nasty word or ten, have the immediate effect of making the speaker feel better. This, by the way, is back by science. Recent studies have found that people who swear have much higher pain thresholds than people who don’t. People going through divorce are in pain, it’s natural to want to ease it.

The problem is, of course, that words have effects on others, sometimes crippling effects. Words have a way of ‘putting out the fire with gasoline.’ They can make things worse. This is, perhaps, fixable at the time things are said. But time is the enemy of words said in anger.

The problem with words are that the people to whom the words were directed may be able to forgive. The people who hear through a friend of a friend – or see on social media – the words tend to never forget. About the only thing words do at that point is ruin relationships that you never intended to harm, relationships that you probably need and want. In-laws, grandparents, friends, gone because of words said to someone else.

And that’s the thing about putting out fires with gasoline, there is absolutely no way of knowing the consequences of words and/or actions spoken and/or made during stressful times. None.

 

A Little More About HBO’s Divorce

You might remember that just before Thanksgiving we published a blog piece about HBO’s new show Divorce. We wrote that they really seemed to be getting a lot right – from the emotions, to counseling, to, well, the mechanics of the whole process.

That was after three episodes. Now we’re deeper into the series and the roof has caved in on the show. After last Sunday, it’s threatening to do for divorce what Kramer vs. Kramer, The War of the Roses, and Arnie Becker of L.A. Law have. That is neither a compliment or a good thing.

The show’s putting a spin on divorce that’s not only a cliché but undermines family law as a whole. I started to feel that Divorce was headed in the wrong direction when our characters, Frances and Robert blew into and out of counseling after two whole sessions.

Okay, that happens, not everyone or every couple is going to get through counseling (but, really, two sessions?), and Frances and Robert moved to mediation. Great, that was encouraging even though, as the show was scheduled for 10 episodes and had just been renewed for a second season, I knew mediation wasn’t going to work. Too little drama that way.

Again, fine, not every couple can successfully negotiate mediation. But, it was the way the show was so … so … dismissive of mediation that started the hackles on the back of my neck rising. It’s portrayed as disorganized, haphazard, and worse, ineffectual. Pretty much everything it is not.

It’s made so much worse when a supporting character says, “Ha, mediation is where on person gets the cup and the other one gets the coffee.” A sentiment that is repeated several times by different people. That, of course, couldn’t be more wrong.

So, Frances and Robert, zip in and out of counseling and mediation over the course of a few real-time weeks. It’s disconcerting. But it gets worse.

Robert gets a high-price divorce attorney in New York City. We know he’s high-priced because (a) he tells us, the audience, several times; (b) his office is in a high-rise with a clear view of Central Park.

Frances gets a high-price divorce attorney in New York City. We know he’s high-price because (a) he tells Frances he is, more than once; (b) he’s in a high-rise in mid-town Manhattan with a gorgeous Art Deco lobby.

Two problems – first, Frances and Robert are broke. Robert has squandered their assets in a series of bad real estate investments and wild construction schemes.  Neither of their erstwhile lawyers ask for a retainer. As a matter of fact, they both indicate that they’ll get paid when they ‘win’ the case.

That is … wrong. Utterly. Contingency fees are not allowed in divorce actions. It is an ethical violation. Taking one for a divorce will, at the very least, get a lawyer sanctioned. It is not done.

Second, Frances and Robert live 30 miles north of New York City. It is a very, obviously, densely populated area. There are dozens of courts between them and their soon to be disbarred attorneys. Their attorneys would be strangers in a strange land with no connection to Frances and Robert’s court, judges, local rules.

It is ridiculous. And it gets worse. Robert’s $750/hr. lawyer promptly calls Frances at midnight one evening to let her know he’s ‘on to her’ and is having her followed. In a word, he threatens her.

Any attorney would be disbarred for that. People are arrested for things like that.

The thing that bothers me is that people are stressed out enough about their family issues without having to be exposed to a TV series that reinforces every horrible cliché every uttered about divorce and lawyers.

It also reinforces a really old, really worn, really outdated, very discredited view of divorce as something that should be ‘won.’

About Lucy Langhanke and the Custody Fight of the Century

Lucy Langhanke – you’d have to be into movies in a pretty unhealthily obsessive way to know that that’s the real name of the great ’30’s- ’40’s actress Mary Astor. Mary Astor is best remembered for a handful of things – playing Brigid O’Shaughnessy in The Maltese Falcon, winning an Academy award for The Great Lie, and being involved in one of the most scandalous child custody fights in Hollywood history (I’ll note that Brad-Angelina war has only just been declared).

Mary Astor’s custody fight happened in the mid-1930’s, in the middle of the Depression and with Hollywood perhaps at its height. On the surface, it seems to have nothing in common with divorce and custody hearings today. But here the surface is just that.

The facts are these: Mary Astor married Dr. Franklyn Thorpe in June, 1931. They had a child, Marilyn, in June 1932. In late 1933, Mary, unhappy in the marriage and in her career, went to New York to work on the stage. She had an affair (torrid was the mildest word used in the tabloids of the day) with the playwright and Broadway directer, George S. Kaufman, a founding member of the Algonquin Round Table. Mary, an excellent writer (she would go on to write two bestselling memoirs and five novels), kept a well-written, fairly detailed diary.

Back in Hollywood in late 1935, Mary went back to work. In 1936 Dr. Thorpe obtained an uncontested divorce. Then he found the diary. Then he demanded custody. Then it went to trial. Then it got ugly.

The one thing to immediately take from this in the age of litigation and the Internet is pretty clear: you can hide a diary, most people probably a little bit better than Mary Astor, but you can’t hide your social media. Enough said, that’s not where I’m really going with this.

Dr. Thorpe claimed that Mary was an unfit mother because she had affairs. Well, probably not so much that as the fact she wrote about them and he did not do well in any of her comparisons – and she compared a lot  Nevertheless, it didn’t look good for Mary – in civil court or the court of public opinion. Absent a good attorney, in 1936, Mary’s prognosis was bleak.

But, several things happened in short order. Mary retained an attorney almost as famous as her, George Simon Kaufman. He had the diary thrown out, made inadmissible. The fact that Thorpe had shared it with the gossip columnist for The New York Daily News and they added their own entries and changed others probably had a lot to do with that decision.

Perhaps just as important, Kaufman laid out all the facts. Facts like these: back when Mary was Lucy she had the stage parents from hell. She made her screen debut at 14, was under contract to a studio for $500/wk (that’s $7,000 in today’s dollars) and was basically imprisoned at home. Her parents, to be kind, never let her out of their sight. She was alloted a $5/week allowance, although, of course, she had no place to spend it. Her father, meanwhile, was physically abusive and constantly demeaned her performances.

Mary managed to. literally, escape – she fled the mansion her parents bought with her money through a carelessly left-open third floor window. At the time, 1928, she was earning $3750/wk ($53,000 … a week). She married a director in 1929, but her parents still kept a tight reign on the money. By the time she gained control of her finances in 1932 there was so little money left she had to ask for assistance from the Screen Actors guild. Her parents promptly sued her for support.

Mary’s husband, Kenneth Hawks – brother of the great director Howard Hawks – was killed in a plane crash in 1930. It was devastating. Mary had a nervous breakdown, took a leave of absence from her studio, and signed herself into inpatient treatment.  By now you can guess who her doctor was – Thorpe.

No one will know if Thorpe ever loved his wife, but there are piles of evidence that he loved her money. Immediately after the wedding he bought a yacht and opened his own practice.

All this, obviously, filled in all the blanks in the case. It was enough for the judge – he awarded Mary full custody. Probably not coincidentally, her career took off. The diary disappeared sometime during the trial. It was like the Loch Ness monster of Hollywood for years, sightings were rare but hyped. In 1953, it was discovered in a safety deposit box and, by court order, it was burned.

There are, obviously, a lot of lessons here. Perhaps the most important one is this – facts are just facts until someone puts them into a narrative.

 

 

Valdez is Coming and Indigo Law

Many of you may have already seen that we’re re-branding the practice as Indigo Family Law. Nothing else is changing, we will still be focusing on family law (lucky that, otherwise …) with the occasional criminal matter – although we encourage our clients, former clients, friends and family to come to us first with any legal matter.

I, certainly, am not changing, Which is why I’m re-posting this today. Just to let you I’m the same shy, retiring Brana you all know … until.

A few weeks ago, a friend asked me what I did. I think he put it this way, “What … exactly do you do?” He asked because, according to him, my old website claimed I did rather a lot of everything.

I patiently explained that I concentrated mostly in family law – including adoption. Adoption can be complex, and family law encompasses divorce, custody, mediation, so much more. Which is why I like it, every case is unique.

I finished pretty pleased with myself for my conciseness, he would have none of it, “What about your criminal law background?”

“Well, I still take the occasional case but … I guess I reserve my criminal law persona for the people who sabotage settlements, or act in the worst interest of the kids or …”

“What then?”

“What do you mean, ‘what then?’”

“What do you do when someone blows up a perfectly good settlement?”

“Oh, then I annihilate them.”

There must have been something about the way I said that because he looked startled for a moment, then laughed, then said, “You’re not a lawyer, you’re Valdez.”

I had no idea what he was talking about, so he filled me in:

Valdez – Bob Valdez – was the title character in the ‘70s cult classic, Valdez is Coming. Written by the late, great Elmore Leonard, it starred the late, great Burt Lancaster. Valdez was a mild-mannered Tex-Mex sheriff on a border town at the turn of last century. He’s the laconic type who really wants to work things out with everyone.

The movie starts with a death and a pregnant widow and Bob trying to collect a few dollars from the men who caused the death so the widow can return to her family. Her Apache family. The townspeople agree to pay $100 if Bob can collect another $100 from the local … well, the local rich land baron who happens to have a pretty large gang and a whole lot more cash on hand than any honest rancher this side of Shane.

Bob tries, twice, to get the guy to pay up. Both times he’s rebuffed. He goes back again, asks quietly, sensibly, humanely. He tries to mediate the conflict. It doesn’t work, this time he’s not only rebuffed, he’s savagely beaten and tossed in the desert to die.

Bob struggles out, is tended to by a friend, starts to heal. He leaves his friend’s house, rides to his home in town, dismounts, goes in – directly to his bed, kneels, pulls out a dusty trunk.

 

He opens it, on top is a photo of an elite US Army unit during the Apache Wars. Under that is a U.S. Army uniform. Under that is a Sharps sharpshooter’s rifle. The uniform on, the rifle loaded and ready, he rides out to get the $200. Only now, he’s not Bob, he’s Valdez and he’s coming. The land baron and his men never know what hit them.

The widow gets the $200.

I’ve been thinking about this a lot lately and I’m not sure I’m Valdez but I am sure my criminal law background, including experience with capital crimes, from both sides, prosecution and defense, does give me a considerable edge when things that shouldn’t go sideways do.

One thing I do share with Valdez – I’m loathe to cut loose, but when I do they never see it coming.