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Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “Anne C. Harvey”

Is Your Attorney a Has-Been?

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Back in the days before attorney advertising ruined the legal profession, white-guys in their forties from designer law schools dominated the practice.  Sought after and deferred to, the mere whisper of their waspish names carried clout.  If one of these notorious attorneys agreed take your case, you accepted whatever terms he laid down.  Pedigree mattered.

Those were golden times.  Tort reform had not been born; attorneys were scarce; and legal practice offered prestige, security and the good life.  What’s not to like about that?

Nothing.

The problem began slowly, with the admission of women and minorities to law schools in record numbers.  The problem grew as the public learned of lawyer abuses, including sexual favors in lieu of fees, shoddy representation and outright theft of client funds.  The problem exploded with attorney advertising.  Suddenly, potential clients could compare fees, results and personalities.  Suddenly, the public could make an informed decision and choose their favorite candidate.  Suddenly, the spoiled and haughty had to learn to compete with new, less favorable rules.

Old Dogs in New Terrain

To their credit, many of the spoiled and haughty caught on and moved on.  Some, though, are still holding out, decades after the first of several waves of change to hit the legal industry.  Some are such die hards that they will never give up the golden days, despite their lack of effectiveness for their clients.  Like Nadia Comaneci, who finally grew too fat for the balance beam, these lawyers just keep at it.  They’re has-beens.

Has-Been Attorneys can be difficult to spot at first.  Here are their most telling characteristics:

  1. How They Act.   If they’re older than 75, they act spoiled and haughty.  If they’re younger than 35, they act spoiled and haughty, as well as entitled, usually because their fathers are spoiled and haughty veterans of the golden times.   To test if your potential attorney is spoiled and haughty in your first meeting, simply set a can of soda directly on his desk or conference table.  If the attorney starts to sweat, refuses to look at the soda can, or cuts the meeting short, he’s one to avoid.  If the attorney puts a coaster underneath the soda can and continues listening, he may just be a keeper.
  2. How Much They Talk.  If they do all the talking, they are likely spoiled and haughty.  It’s your case, your life and your money, and you should be given the floor.  If they even once use words like “in rem,” or “legatee,” or “hereinasmuch,”  trouble will soon come your way.
  3. Can They Take a Joke? If they have to steal every punch line, they are spoiled and haughty, no question.  If they tell stories with long set-ups and cornball punch lines that don’t quite make sense, they will annoy everyone within hearing distance, including your judge and your jury.  If, God forbid, they tell the same story more than twice, know that you are hearing a script.
  4. Does Everyone Have to Come to Them?  Is their mere presence a production?  For example, does every single meeting have to happen in their office, on their schedule?  Does someone actually drive them about in their own car?  Do they ask you for a ride to court or back to their office?  The spoiled and haughty like to be driven about.
  5. How Long Ago Is Their Signature Case?  The spoiled and haughty usually have a signature case that defines them for all eternity.  Be sure to find out when this case occurred.  Long distance runners have an informal rule that their accomplishments can only be advertised for two years.  So, having run a marathon in your teens cannot be bragged about in your forties—you are not still a marathoner, you were a marathoner.  Unless you have run another marathon in the immediate past, you are a has-been marathoner. So too with attorneys.
  6. Are They NameDroppers? Glad-Handers? Do they lapse into French or reference people like Sarte or the Bronte sisters? If they don’t have Netflix or an Apple device, or if they wear wing-tips to a picnic, they are hopeless.

That Tricky Matter of Attorney Age

Not all old attorneys are has-beens, but the risk increases exponentially with every year they work past 75.  Not all attorneys who are descendants of the spoiled and haughty are entitled brats, but the odds are stacked that they are.  Young attorneys are not has-beens, but some are never-shoulds, a topic for another post.  Women attorneys can be has-beens, but they generally are not, especially if they are mothers.

Conclusion

It is common sense that you want an attorney who knows the law, can get along with people if he needs to, and fits within the bell-shaped curve of current American culture. Fortunately, you now have more information available about potential attorneys than ever so you have many, many choices.  Unfortunately, you also have many, many types to avoid and has-been attorneys are plentiful and difficult to detect until it’s too late.

If you hear your attorney lamenting too much about Vietnam, you may have a history buff, or you may be headed for trouble.  Let the buyer beware.

Why I Love Family Law Depositions at the Dayton Law Library

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In addition to the usual trappings of a regular public library, a law library offers services to its members such as free internet, heavy law books for the technological hold-outs, and meeting rooms.  The Dayton Law Library, located on the 5th Floor of the Dayton-Montgomery County Courthouse, 41 North Perry Street, Dayton, Ohio, (just beyond the Second District Court of Appeals) provides a conference room that I have come to appreciate for reasons other than as a pit stop between cases or a place for leisurely research and writing tasks.

Depositions are a part of many civil cases.  In a divorce matter, a deposition requires an estranged husband and wife, each of their attorneys, a court reporter, and possibly an outside witness, to sit together, often for hours, in the same room.  The opposing attorney questions the other side’s witness under oath about the facts of the case.

Suffice it to say that tensions can escalate.  Suffice it to say that attorneys are control freaks.  Further suffice it to say that who ever owns the office containing the conference room where these joyous activities takes place starts with a very real, or at least perceived, advantage.

In my salad days, back when I worked for the Air Force, I would routinely travel cross-country or beyond to conduct depositions.  I learned how to walk into the “hostile territory” of the contractor’s office for the simple reason that the contractor was never required to travel to the Air Force offices in Fairborn Ohio.  Sometimes things got argumentative, but for the most part everyone behaved well.  Of course, the fact that nobody had any of their own money, or the future of their family, at stake may have helped keep the peace.

Litigation is War

Litigation is War

Domestic relations depositions can be wild.  When I was first starting out on my own, I made a convenient young female target.  Opposing counsel would call me names, disrupt my questions, instruct their clients not to answer questions, and sigh, moan and sputter loudly to distract me.  I had a couple of nose-to-nose shouting matches.  I had a lawyer refuse to produce his client after he agreed to because I had not filed a “formal” notice of deposition.  Overall, it reminded me of roller-derby.

As I got older and more experienced, things got a little easier.  Certain attorneys, though, are chronic offenders and the drama they create in depositions is a lifestyle choice they’ve consciously made.  The state bar has recognized this reality and sends us all off to school every two years to study “professionalism.” Of course the hard-core offenders are unfazed.  Working under these conditions takes its toll.  I sometimes refuse cases based only upon who represents the other side.

One day this year my brain made a startling connection.  I routinely tell my clients to meet with their spouses at Panera Bread  or Bob Evan’s or some such place for two reasons.  First, people behave better in public places.  They could be arrested for disorderly conduct if they behaved in public the same as some of them behave at home.  Second, there is no time limit at those restaurants.  They can sit for hours and quietly conduct their business.

Voila!  Depositions are not limited to either lawyers’ office.  Neutral territory would put everyone on an equal playing field.  Lawyers are going to act better in public for the same reason as everyone else–it’s more daunting to make an ass of yourself where people can judge you than inside your privately owned property.  Bullies love secrecy.

The choice of place was a little more difficult, because restaurants charge money to guarantee any level of privacy.  The law library offers all that we need:  neutral territory, a public yet private place, and no cover charge.  There is a gigantic conference table, picture windows showing the sprawling metro view of Dayton, and plenty of spiffy oak chairs with arm rests.

Dayton Law Library

Dayton Law Library

The resistance I have met from other lawyers to this simple arrangement been astounding.  I have been accused of being the perpetrator of confrontations in depositions.  I have been accused of “dragging” a down-town attorney all the way to the court building where he has walked to from his office every day for the past twenty years.  I had one lawyer actually pull the books to research the issue–not surprisingly, he found no controlling precedent on the burning societal issue of where lawyers should conduct depositions.

I remember a funny story.  A federal judge on a particular case had pages of motions and legal memoranda from two sets of lawyers about who got to host the depositions.  This genius of a man ordered the lawyers to conduct a rousing game of “rock scissors paper” in the courtroom, on the record, in the presence of their clients, the winner to decide.  Those lawyers reportedly complied, went home and then promptly settled the case.  Word got around, and that judge never had to order another pair of legal combatants to play that game.

Asking for neutral public territory gives me credibility (at least in my own mind) against the accusations of the legal bullies in southwest Ohio.  While reflecting on this whole topic, I realized something obvious: it’s not about control of the conference room.  It’s actually about some lawyers simply being too good for the Dayton law library.

Not me!

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC

Happy Library Patron

Happy Library Patron

BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

shutterstock fear_175790252 [Converted]BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable.  In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.

Long-Term Marriages

Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years.  In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support.  A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.”  Under Ohio law, an equal division of marital property and debts is presumed to be fair.  If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues.  When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic.  Most people in this situation, however, have an innate toughness and recover quickly.  Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.

My Spouse is in Prisonshutterstock fear_175790252 [Converted]

Not surprisingly, imprisonment often leads to divorce.  Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce.   The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.

The complexities of “prison divorce” revolve around child issues.  The mere fact of imprisonment does not mean a party will never again see their children.  The fact of imprisonment greatly diminishes a party’s ability to pay child support.  In fact, Ohio law now provides that income will not be imputed to a parent who is:

“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”

In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment.  And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.

Boilerplate Language

Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court.  We field many calls of panic over this language when people are served with divorce.

In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order.  I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.

Incompatibility is the basis for almost all Ohio divorces.  The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing.  In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.

shutterstock fear_175790252 [Converted]Conclusion

Divorce is rough, but usually for reasons other than what clients expect in the beginning.  At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC

So You Think You Know About marriage?

So You Think You Know  About Marriage?

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Americans lag behind most developed countries in literacy, problem-solving & math.  These deficiencies do not greatly impact my divorce practice because most of us can divide by two or at least use a calculator to divide large numbers.  I am amazed instead by the surprise, shock & dismay when I meet with new clients and they see, for the very first time, exactly what it means to be married.

Here’s a very short list:

If you’re married, you are responsible for the support & maintenance of your spouse, regardless of your gender. This means you can be liable for health care costs if your spouse becomes disabled, even if you’re living apart and haven’t seen each other in years.

If you’re married, you and your spouse are equal business partners.  This means that your spouse is entitled to half of your retirement, even if he never worked a day during the marriage.

If you’re married, you are liable for half of the debts accumulated during the marriage, with few exceptions.  Ohio is not a title state.  This means that the “stuff of life,” such as gasoline, Christmas gifts, vacations & groceries, are divisible by a Domestic Relations Court, even if the credit card is only in one spouse’s name.

If you’re married, your money is your spouse’s money–you have your hands in each others’ respective wallets.  Your spouse is assumed to have contributed to all the income earned during the marriage, even if he was not gainfully employed outside the home.

If you’re married, and inherit your mother’s house, and pay the mortgage & taxes and make improvements, you just gave your spouse an interest in your inheritance that will be difficult to value.

If you’re married, after 10 years you can collect social security as a “divorced spouse” based upon the higher of your income or your spouse’s income.

If you’re married, your spouse has an interest in your hobbies, such as collectibles, musical instruments & perhaps even jewelry.

If you’re married, your spouse has an interest in any businesses you establish, even if they do absolutely nothing to support it and whine and nag about it.

If you’re married, and your spouse refuses to cooperate in your divorce, you can be in for a very long and expensive haul.

Finally, if you’re married, there is a statutory limit on writing your spouse out of your will.    He can always “elect against the will” and receive his statutory share.

Divorce is hardly unusual.  The Center for Disease Control & Prevention reports that :

“[t]he probability of a first marriage ending in separation or divorce within 5 years is 20 percent, but the probability of a premarital cohabitation breaking up within 5 years is 49 percent. After 10 years, the probability of a first marriage ending is 33 percent.”

I would think by now that more people would be aware of the financial impact of marriage.  From what I encounter in my office, the word on the street is limited to talk of wedding destinations, dress styles and sex. After getting the marriage license, most couples never give any of the “technicalities” of marriage a second thought.

A divorce face is every bit as ugly as a wedding face is beautiful.  There needs to be just a little less glitter at the beginning so that a divorce, if it occurs, will not be quite so devastating.

Lawyer Review Sites

 How DARE You?

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There was a time when I lived or died by on-line client reviews.  I searched my name regularly, checked the sites I knew about, and had either a terrific day or a terrible day, depending upon what I read.  While there is no doubt that on-line reviews can have a tremendous financial impact upon a business, I took what clients wrote to heart.

Online reviews are permanent.  A bar complaint is handled confidentially.  The internet is forever and the number of review sites has exploded.  Now nearly every business, from restaurants to lawn care, is subject to the on-line opinions of customers. It’s hard not to take a scathing review personally.

I am not the only one who agonized over what I read.   Some business owners have even gone so far as to file suit against their detractors, usually resulting in bad outcomes.  My fascination with these sites drove me to do some research of my own.  Common sense told me that an anonymous review was cowardly.

Turns out others agree.  According to a recent article in Times Magazine, the prominent Travel Channel speaker Andrew Zimmer  stated that “[y]elp essentially gives a tremendous forum for a bunch of uninformed morons to take down restaurants.” Most of these sites require nothing more than an internet connection—no identification or accountability whatsoever.  Anonymity breeds bad behavior.

Anonymity, though, is the least of the problems with on-line review sites.  Why should anyone believe the words of a total stranger who won’t stand by his opinion? Even if the review is signed, you probably don’t know the writer personally.  To give weight to this type of review, where you have no idea if the writer is, say, Bernie Madoff from his prison cell, is foolhardy.  If you walked up to a stranger at a Bengals’ game and asked for the name of the best steak-house around, there is no way to measure the value of what you’re being told.  You wouldn’t know for sure until you actually tasted the steak.  Yet, this is exactly what on-line reviews do.

Are on-line review sites legitimate at all?

Which review is fake?

1.  I have stayed at many hotels traveling for both business and pleasure and I can honestly say that the James is tops.  The service at the hotel is first class.  The rooms are modern and very comfortable.  The location is perfect within walking distance to all of the great sights and restaurants.  Highly recommend to both business travelers and couples.

2.  My husband and I stayed at the James Chicago Hotel for our anniversary.  This place is fantastic! We knew as soon as we arrived we made the right choice! The rooms are BEAUTIFUL and the staff very attentive and wonderful!!  The area of the hotel is great, since I love to shop I couldn’t ask for more!!  We will definitely be back to Chicago and we will for sure be back to the James Chicago.

Jeff Hancock of Cornell University has studied what is called “opinion spam,” or “phony positive reviews created by sellers to help sell their products, or negative reviews meant to downgrade competitors.”    Relying upon algorithms, word choice statistics, and volunteer Cornell students, he has determined that humans are very bad at spotting sham reviews. Computers, however, can detect fakes within a fair degree of certainty.  Review Skeptic has a platform where hotel reviews can be inputted to see if the computer says its real or not.

On-line reviews are suspect for another reason.  No computer can detect the relationship between the writer and the company under scrutiny. Small independent hotels were found to have far more positive online reviews on one site as opposed to another.  The reason?  People associated with the hotels were able to manipulate the reviews on the site that did not confirm whether the reviewer had even stayed at the hotel.  One restaurant received a bad review on yelp before it even opened!  Clearly, gaming the system is rampant.

That Pesky Attorney-Client Privilege

There is another layer of potential peril to lawyers with on-line review sites.  A Chicago employment lawyer responded to a negative on-line review as follows:

“I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”

Ultimately, the attorney received a reprimand for exceeding the scope of what she needed to say to defend herself.  The reference to beating up a co-worker revealed the client’s identity, thereby breaching the privilege, even though he allegedly did not provide his last name on the site.  The lawyer’s attorney cautioned other lawyers to “[b]e cautious that if they choose to respond, that their response does not exceed what is necessary to respond to the review and should be mindful that they do not reveal client confidences in violation of the rule.”

So, a lawyer can be disciplined for responding to an untrue on-line review, even if she removes it, and the full name of the client is not revealed, and the review is untrue.  Like Demi Moore in A Few Good Men, I “object strenuously your honor,” to this decision.

What I tell My Clients

I have pretty good on-line reviews. Am I as good as my reviews say I am?  No, I am not–but I am also not half as bad as my bad reviews claim.   All that any client review shows is whether I successfully established rapport with that particular client on that particular case on any particular day.  That’s assuming, of course, that the review is real and not penned by my arch-enemy.

I now tell the clients who ask that on-line lawyer reviews depend on everything and to think for themselves.  What they think is all that matters.

What I Tell Myself

On-line reviews are usually unverified, frequently fake and can make or break a business, particularly a new business.  Lawyers have the added risk of disciplinary action if they  respond even remotely in kind. Lawyers must have thick skins and even broader shoulders to survive in this environment.  

One morning in May, I received both a five-star glowing review and a one-star flaming review.   I chuckled about that all day.  I’ve given up watching for the reviews because I can’t safely respond without risking sanction.  I’ve noticed that Big Law is seldom critiqued in on-line reviews; boutique firms, such as my own, appear regularly.  I believe this reflects the change in legal practice to a consumer base which is a great opportunity for boutique firms.  Ultimately, my presence in the legal profession is strong enough to cast a shadow.

Can I really ask for more?

[The second review is fake.  The first is authentic, although there is no way to tell if it’s true, since it is anonymous].shutterstock lion

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC.

December Means Overtime for Santa & Divorce Lawyers

zombies

You know the song “We Wish you a Merry Christmas?”  It goes like this:

“So BRING us some figgy pudding.

And BRING some right now.

We WON’T go until we get some.”

The words to this Christmas song have always fascinated me. As a child, I imagined sinister carolers camped out on the porch & our not even knowing what “figgy pudding” meant or where to get it.

Why is this image so disturbing? I think because it is the heart & soul of passive aggressive behavior. Unfortunately, parents use passive aggressive techniques against each other while navigating Christmas parenting time schedules.

Court is not meant to micromanage lives. Don’t get so caught up in getting “some piggy pudding” that you camp out until you get what you want.

Yuletides.

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