How to Beat a Credit Card Lawsuit

Note: This blog has two purposes:

1.  I want you to give you interesting content that I have curated, digested, and then written about in a way that is engaging and understandable. My goal is both that you would be entertained and become more interested in the law.

2.  I want you to hire my firm to help you with your legal issue. 

So the blog is sort of a friendly boxing match. I give you (hopefully) good stuff—jab, jab, jab—and then every once in a while I’ll work in a right hook where I’m really gunning for your business. Today will be a right hook. Now, it’s not a haymaker—this information should be good and hit my “target”—but I’m still looking for your business. Just wanted you to know.

Now for the good stuff . . .


When someone doesn’t pay for something they’ve bought, that debt is often sold to a company that specializes in debt collection. This debt might be a credit card or car loan or motorcycle loan or anything. If the company can’t collect the debt itself, it hires a debt collection law firm to sue the debtor. There are several of these debt collection law firms in Arkansas; some are better than others.

The debt collection process is highly regulated—a debt collection company can’t just do whatever it wants. The most important regulation for debt collection firms is the Fair Debt Collection Practices Act (FDCPA), which is both a federal law and an Arkansas law. It applies to suits over credit card debt.

In 2012, the Arkansas Supreme Court decided a case called LVNV Funding v. Nardi, where it basically reminded Arkansas debt collection firms that they have to have proof of the original debt before they sue. Because these debts have been sold, many times the original contract has been lost. No original contract = no lawsuit. (Courts have since decided that an Arkansas debt collection firm can amend or change their lawsuit if they later find the original document, but they usually can’t find it.)

Arkansas debt collection firms operate this way: They sue (on a credit card debt, for example), nobody answers, they get a default judgment on the debt because no one has answered, then they garnish someone’s wages with the default judgment. That’s it. It doesn’t matter if they actually have a case or have the original document because people usually don’t fight it.

That’s what we want to change. No one should ever just roll over in a debt collection lawsuit. At the very least, he or she needs to make sure that the Arkansas debt collector actually has the original contract. If the debt collector does have the original contract, it’s time to settle. If they don’t, the judge should dismiss the case.

If you (or someone you know, of course) has been sued by an Arkansas debt collection firm, please reach out to us. This is especially true if you’ve been sued and the time for filing an answer has elapsed—usually thirty days. You may not only be able to get out of the debt, but you may also be able to get damages under the FDCPA because the debt collector sued you improperly. The damages for every single communication that violates the FDCPA is $1000.

The debt collector may or may not have the original contract, but they usually don’t. Hire us to help you find out.


4 Lessons in Lawyering from “Car Talk”

I am sad that Tom Magliozzi of “Car Talk” has died—he was a real bright spot on the radio. He and his brother Ray (“Click” and “Clack”) hosted the show for over 25 years before retiring in 2012. You can still hear reruns on NPR and even podcast the reruns on iTunes. (Not sure if podcasting is still cool, but I certainly use the heck out of it.)


Man, “Car Talk” is great. It is about cars and car problems in some sense, but those are just vehicles (zing!) for talking about the thing that really matters: Life is funny. All of it is funny if you take the time to think about it (and talk about it with those accents). They could make anything funny even though I had no idea what they were talking about. (Although I would like to point out that I changed my oil one time in high school and have also replaced a “serpentine” belt. I’m not sure if they call it that because it was a devilish task, but I wouldn’t doubt it.)

Ever seeking to reflect on things to get better, I’ve been thinking about Mr. Magliozzi. Here’s my lawyer’s takeaway on four things I can learn from Click and Clack:

1. People aren’t stupid; they just do stupid things sometimes.

As I pointed out earlier, I don’t know anything about cars. Most of the people who called in to “Car Talk” to pose an automobile dilemma obviously didn’t know much either. And they often had done something stupid—or a series of stupid things—to get in the situation for which he or she was seeking help.

But the guys never talked down to people. They never assumed a caller couldn’t understand the technical terms or explanations. They gave everyone the benefit of the doubt. They were the experts but they didn’t feel like they had to rub it in.

That is a good word to me, especially as I deal with situations that almost invariably could have been avoided with better decisions. We all do stupid things; it doesn’t mean we’re stupid. Lawyers should expect that clients can understand what’s going on.

2. You can make anything interesting if you frame it around the listener.

Cars aren’t interesting to me, and they never will be. But I love to solve problems, and I love to hear about people’s stories—I think that’s a near-universal human trait. The Magliozzis were able to take something that relatively few people are interested in and make it engaging because they framed the issues around the caller, not their own knowledge. The car problems were interesting because they were part of a larger story about the caller and his or her issue. I may not have a car problem, but I’ve got a story and I’ve got problems to fix. We all do.

I wish I was better at this—framing a legal issue around the client, not me. I’m sure it would result in fewer eyes-glazed-over consultations and follow-up calls to ask questions that I didn’t answer because I was thinking about me, not the listener (or client, as it were). If what I’m saying doesn’t interest the person I’m talking to, that’s my problem, not his or her’s.

3. Get the back story.

Click and Clack never tried to diagnose car trouble without getting to know the person. Does the person live in Vermont or Arizona? Does the person have children? Is she married? Does he live two miles from work or two hours away (or does his two-mile commute take two hours, an entirely different problem)? For the guys, they knew they couldn’t solve the car issue without knowing all the facts and asking the right questions. And they were able to do it in a relatively short amount of time—they made jokes, but they didn’t ask stupid questions. Every question, even if it seemed off-topic, moved them toward an answer.

Yeah—I need more of this.

4. Build a relationship before solving the problem.

(Or, at least do your best to build a relationship while solving the problem.)

The world is full of people peddling their wares. Whether it’s lawyers or auto mechanics or any other service provider, everyone is selling something, even if he or she may not look like the typical salesperson (you know: the pushy door-to-door vacuum salesman). We all have more options than we do money; often, we have multiple good options. Talented people with interesting things to buy are everywhere.

So how do people choose who they hire to help them? Assuming you’ve got a good product, I think it’s tough to overstate the importance of establishing trust. You establish trust through deliberately cultivating a relationship. How did the guys on Car Talk do this? They were smart. They cared. They were people. They asked about the callers’ hometowns and dogs. And so forth . . .

People could have called any auto mechanic and, assuming they have any network at all, received good advice about how to fix the problem. They called the Magliozzis because they wanted a solution AND a relationship.

Legal solutions are everywhere; that reality becomes truer by the day, it seems. (LegalZoom, RocketLawyer, Avvo Advisor, LawFone, etc.). To capture business from these places, lawyers must be willing to provide good, workable solutions (that’s a threshold requirement) while building the kind of trust that only a real person can provide.

Just like the guys on “Car Talk” did.

Law-practice fl”AVVO”r of the Month.

See what I did there with “flavor?” You’re welcome.

The law is a cottage industry. Starting with LSAT prep, the test itself, “How-To” Guides for law school, supplements, textbooks, Bar Prep, and then the Bar itself—and that’s just to get there! Once you’re a lawyer, there is a chorus of impassioned voices calling you to buy their product, all of which is the magical key to lawyerly success.

Even I (who will listen to nearly anyone) have learned—in just one year of practice—to hang up on these people. I have heard it all and been duped on several occasions and have become pretty darn calloused to all these snake-oil salespeople peddling these law-practice panaceas. (Can “panacea” be plural? I am not sure.)


Avvo falls in that camp. It’s better than many, but it is still easy to game. If you spend some money and answer some questions and haven’t been disciplined, you’re likely to rise to the top and achieve the highly sought-after pinnacle of Avvo-ness: a perfect 10.0 out of 10.0 rating. (Let me check my cynicism for just a moment. I have read many responses on Avvo that were genuinely helpful and obviously written by someone who knows what he or she is talking about. But there’s plenty of drivel.)

Avvo recently announced a new product: Avvo Advisor. Whereas normal Avvo (Avvo Answers) is just a free forum for people to ask (always interesting; often inane; sometimes insane) questions about their pressing legal issues, Avvo Advisor is a paid service. Evidently you pay $39.99 for 15 minutes from a “top-rated” (HA!) attorney who specializes in your particular field. It isn’t being offered in Arkansas yet, but I am sure we are quick to follow the other nine launch states.

I am intrigued by this concept. One on hand, I would LOVE to make some money off all the good free advice that I give away literally (not literally as figuratively—I mean “literally” literally) every single day. I’m not sure what percentage of the $39.99 would actually go to the lawyer, but it would seem to be a decent way to fill some gaps in a lawyer’s day. And it would certainly be more profitable than browsing Facebook or ESPN or something. I also think that I could give someone enough good, solid advice in the span of 15 minutes to make it worth his or her while.

It doesn’t take long to realize, however, that this is unlikely to work. (I know it will “work” in the sense of making a profit, of course. The folks behind Avvo are clearly pretty shrewd.) When I say work, I mean will it actually provide benefit for the callers—the people who are paying for the service and expecting help. In my experience, the people asking questions on Avvo have a difficult time understanding their issue and narrowing their question down into understandable, answerable parts. (For example, people will often include nearly anything under the umbrella of family law, apparently under the impression that because they have a family and need a lawyer that they need a family lawyer. Sadly, it is not so.)

Another recurring issue is asking a question in the wrong jurisdiction. For instance, there are regularly people on Avvo who ask questions on British law and mistakenly assign the jurisdiction of England, Arkansas. Would someone who paid the $39.99 be more sophisticated than the person looking for free advice? Perhaps, but I doubt it.

It’s one thing to game lawyers. We tend to be critical and are on guard for would-be manipulators. (Usually, anyway. I fear that many lawyers check their brains at their web browser—”Wow, I can give you $500 a month to make Google like me? Here’s my credit card!”) But consumers—especially folks who are looking for their lawyers online—are unlikely to know that their legal issues cannot be addressed in 15 minutes. Nor do they know that the person at the other end of the phone, Avvo rating notwithstanding, is unlikely to give a crap about helping them.

The thing’s got some more problems, as pointed out by Simple Justice.

I think I’ll just keep giving my time away—15 minutes at a time.

“Who Gets My Twitter When I Die?”

Here’s our second installment to celebrate 2014 National Estate Planning Awareness Week: “Who Gets My Twitter (or Facebook or Feedly or Instagram or Pinterest) When I Die.”

When we think about our estate—our stuff—the stuff that’s going to be left behind when we die that someone else is going to have to sort through—we normally think about tangible stuff like houses and cars and books and bank accounts.


But for many of us (especially digital-native types under, say, 35), we may have more invested in our social media accounts than we do in the stock market. (I am running low on both, I fear.) And while a Twitter account with 20,000 followers doesn’t necessarily translate into money, it ain’t nothing, either. You had to do some work to get there and it’s worth something. So, again, what happens to it after you die?

Well, if you don’t make specific plans for your social media and other digital assets before you die, the answer’s pretty scary: You have no way of knowing. Your account may be memorialized (if it’s a Facebook account) or simply shut down or left to hover in the inter-ether (yep, just made that up) indefinitely. Without clear direction from your estate plan, the future of your social media presence will pretty much be up to whoever wants to access it and the individual policies of the particular providers.

On one level this sounds trivial, but think about it more carefully: If you spend a fair amount of time using social media, that is an important part of your life. Depending on your public candor, your status updates and tweets serve as an informal autobiography. And because younger folks tend to spend so much time online, you may not have any other recorded reflections on your life.

So would you prefer for all that information to be decided on a whim, or would you prefer to direct someone in how to handle it.

Be aware of your social media presence. If you’re concerned, call us. We would love to discuss different options for making sure your digital presence is handled the way you want.

Be Aware of Your Estate Plan!

Today begins National Estate Planning Awareness Week. (Seriously—it’s a real thing.) So here’s our not-so-subtle nudge for you to become more aware about your estate plan. And then hire us to do help you!

But first, a story: There are four lawyers at Wilson & Haubert, and each of our practice areas are different.

Greg and I practice family law. (He does other stuff, too—namely, criminal defense.)


Dennis focuses on estate planning and elder law.

Brandon practices in estate planning and businesses transactions as well as the litigation in those areas.

Each of these practice areas is different—each has a different “feel” to it. Each of these areas confront people at different periods in their lives.

Estate planning stands out from the rest of the stuff we do. In fact, it really stands out from most other area of law because it’s something you do when times are good. That is, you’re free to put it off if you want. There’s usually not an emergency that would make you pay attention to your estate plan. (If you’re curious about what estate planning is, please take some time to poke around our website. Lots of good stuff here.)

Think about it: No one has to tell you to go hire a lawyer if your ex-spouse is trying to take your kids away. And no one has to twist your arm to hire a lawyer if you get accused of a crime. And if you’re a business and get sued and have a lot of money on the line, you never wonder about whether or not to handle it yourself.

But that’s not how estate planning works. Lightning will not strike you if you keep living without a will. Your life will continue to look pretty much the way it’s always looked. No one will single you out in a crowd for not having your estate in order.

No, estate planning is unique because, under most circumstances,  it won’t matter until you die. That’s when the emergency happens: Your heirs have to fix the mess you left them. And spend a year (or more) tied up in probate (sort of like purgatory for people who are alive.)

Estate planning is relatively inexpensive, relatively straightforward, and will make your heirs life much, much more pleasant when you’re gone. (As an aside, we’re quite good at estate planning. You should hire us to—you guessed it!—protect what matters to you).

Can You Serve Someone Through Facebook?

Apparently so—at least in New York.

Here’s the gist of the story from the Socially Aware blog:

In a little-noticed decision, Matter of Noel v. Maria, Support Magistrate Gregory L. Gliedman—a Staten Island, New York family court official—recently permitted a father seeking to modify his child support payments to serve process on the child’s mother by sending her a digital copy of the summons and petition through her Facebook account.


This seems to be a fairly novel move even by a New York court, so I wouldn’t expect this to fly in Arkansas any time soon.

The Arkansas Rules of Civil Procedure (Rule 5(b)(2)) do allow for service by email upon an attorney, but not a party. So the only time this would work is if the party is already represented by an attorney in the particular action, i.e. the rule makes service of motions and other papers more convenient, but it wouldn’t do much for the initial service of a complaint and summons.

As for how broadly a court might interpret “email,” I am not sure. Facebook messenger is not inherently less secure than email, and it serves about the same purpose. Normally rules about service are construed very strictly, but behind that strict construction is the all-important question: Did the person served understand that they are being sued and what to do about it?

As an aside, the ability to effect service on someone through Facebook would be incredibly helpful in my own family law practice—a game-changing, frustration-reducing boon. Figuring out how to serve someone is an issue in at least a third of my cases, but nearly everyone has Facebook, and you need not be friends with someone to send a message over Facebook.

A slightly related but earth-shatteringly important aside: If you think you might be facing a family law issue in court at any point in the near future, you should pay very close attention to what shows up on your social media outlets. Good: bible verses (unless they’re from Leviticus), cute kid pictures, memes involving sunshine, etc. Bad: posts about a crazy weekend or tequila or a new relationship—especially if those three happen to be related.

The One Question a Family Lawyer Must Ask

Questions are underrated. Whether in law or business or relationships or whatever, if you can ask really good questions, you have a lot of power. You’ll get the right information you need to make the right decision—and making the right decisions about the questions that matter most is pretty much the key to success in anything.


There are books on this (just scroll down; it’s a cottage industry). Socrates asked questions to make draw his listeners into dialogue and, hopefully, enlightenment (and embarrassment, of course). Jesus similarly used pointed questions to nail the religious leaders (among others) to the wall. (See, e.g., Jesus’ skill in Luke 10 at turning the “lawyer’s” question back on him. He should have brought his “A” game that day.)

Questions are obviously particularly important to lawyers. Law school itself is really just a series of questions. (For good or ill, depending on the teacher—again, it’s not enough just to ask questions. They have to be good questions.) Depositions, discovery, examination—it’s all built on questions.

But as a divorce lawyer, the most important question I will ever ask someone is simple:

“Is your marriage really dead?”

It’s a strange question, I’ll admit. I ask it of every person I interview before becoming a client, and people are invariably surprised.

It is pointed. It is direct. And I ask it not only for the answer, but to watch a person’s entire reaction. Is she defensive? Does he start talking about how terrible his wife has been? How long does she take to answer—has she really thought about it?

I often tell clients (and anyone who will listen) that it’s not a lawyer’s job to kill a marriage. (In fact, I think it’s probably an ethical violation—but that’s for another post.) A lawyer’s job is to fill out the death certificate and arrange the funeral once the marriage is already dead.

There are two reasons why it’s so important to ask this question—why this is the most important question a family lawyer should ask. First, people should stay married if they can. If I encourage someone to end a marriage before it’s really over, I have just made the world a more vulnerable place for both parties. I have made society less stable. Bad marriages are admittedly bad, but marriage is good—it’s good for everyone.

On another level, I’ve just taken on a client who won’t have the strength to get through the divorce. Sure, they may make it, but there won’t be much to move on with. Divorce is devastating even when it’s the right option; if it’s the wrong option (if the marriage isn’t dead), then it’s something akin to hell on earth.

A family lawyer need not phrase the question exactly like me, but you should beware any lawyer who doesn’t ask something similar. Family lawyers see a lot, so a good one should be able to help you know if a marriage is dead or not. That is, they can help you make that decision for yourself. But if he or she is more concerned about answering that question for you, you need to find another lawyer.

Every lawyer is obligated to act in his or her client’s best interest, and it is never in someone’s best interest to get a divorce unless absolutely necessary.

Arkansas Voters Are Not This Stupid

I tend to be unpolitical—not anti-political, because politics obviously matters, and not apolitical, as though I’m somehow above the fray and don’t have to pick sides. No, I just tend to struggle with most political questions and can only hope that years will make those questions clearer.

But I do know a little bit about what lawyers are supposed to do. (That’s my interest in the matter and why it’s acceptable fodder for this “unpolitical” blog—I am a lawyer and want people to understand why what I do is important). I also know a lot of people who are registered voters in Arkansas. So I think I am qualified enough to say this: Arkansas voters are too smart for these lawyer-bashing ads.

I’m referring, of course, to the latest lawyer-bashing mailer sent out against Clarke Tucker. He is running for state representative in my district, District 35:

tucker 1

This image is from the Arkansas Times blog post on the mailer, which can be found at

This is not the first time this tactic has been used in an Arkansas political race. A similarly stupid ad was put forth against Tim Cullen when he was running for Arkansas Supreme Court, and I seem to remember Patti James receiving one when she ran for Pulaski County Circuit Judge.

I have a lot of thoughts when I see the ad. It is stupid on many, many levels. The ransom-note typography is way over the top. The domestic battery imagery is more than over-the-top; it’s patently offensive for the front of a postcard. Tucker is running for State Representative, anyway: His relationship to violent crime is attenuated. And although I don’t know Tucker personally, I do know that he works at one of the whitest of Little Rock’s white-shoe firms; he does not practice criminal law. It’s absurd.

I think all that is pretty obvious on the mailer’s face. My issue is the question posed on the front of the mailer: “Why Would Clarke Tucker Defend A Violent Criminal for Free?”

I suppose the “writer’s” purpose was to create some doubt in the reader’s mind about Tucker’s stance on violent crime because there’s not a good answer to the question. I don’t really know what the person who sent this drivel was trying to do. But whatever aspersions he or she was trying to cast on Tucker, I think the mailer is a failure. There are many, many excellent reasons to defend someone who’s accused of a crime for free.

Now I don’t expect non-lawyers to buy into all the explanations we lawyers give for the things we do. Heck, sometimes I have my doubts. But when it comes to a private lawyer defending a criminal for free, I don’t think we’re dealing with some legal nuance or some cloudy platitudes about criminal justice. I don’t think it takes a law degree to understand that it’s a good thing for you to have someone on your side when the government comes after you.

This is, after all, the same big government (gub-ment?) that we all want to shrink. The police and prosecutors may look like your friends, but that’s only until they have some reason to take away your freedom. In that situation, you have one friend: your lawyer.

Everyone in District 35 has needed a friend, someone to speak for you when you can’t speak for yourself. This is not hard to understand, and I think that the people who received this mailer can understand it.

I can only hope that the people who come up with these inane tactics will catch on at some point. Again, I think most voters can recognize this as a particularly ugly form of deceit, the kind that appears to be protecting the helpless but is actually intended to distort the truth for political gain. They are trying to sell us all a bill-of-goods because they think we’ll buy into their baseless, anti-lawyer rhetoric. But I don’t think we will.

As I’ve said before, there are many good reasons to dislike lawyers. But defending a criminal for free isn’t one of them; this is why we should all like lawyers.

Re: Your Crappy Lawyer Bio

Lee Rosen has a read-worthy post this morning about lawyer biographies (Spoiler: They’re crappy).

tired dog

(Most of what Rosen writes is worth reading, actually. His website is outstanding, and I particularly appreciate his (bifurcated?) approach to family law, where he has focused on the ends of the financial spectrum. He services either wealthy clients whose divorces are contested or low-income clients with relatively simple issues through automation and unbundling. In this way, he leverages his experience, makes a ton of passive money, and provides a viable market solution to the so-called “justice gap,” i.e., the undeniable reality that most people can’t afford the legal services they need.)

So lawyer biographies are terrible, chock full of information that all other lawyers probably already know or assume and no client cares about. This could reveal either (or both, I suppose) of these two depressing realities about lawyers: 1) They mindlessly do exactly what everyone else does, and/or 2) They actually think that clients care about that stuff. I shudder at the latter.

The usual offenders I see are as follows:

1. Law Review. (“Yes, please tell me about your expert analysis of an arcane legal issue you performed during your second year of law school, which culminated in you being made the Dwight Schrute (in a non-cool way) of your law review. You know, something like Co-Assistant to the Executive Editor for Formatting.”)

2. Licensure. (“You’re licensed in BOTH the Eastern and Western Districts of Arkansas?!? Phew! You had me worried about that one.”)

3. Notable cases. (“So, like, did you win them? Did you do a good job? Oh wait, that’s right, I’ll just go take a gander at the Arkansas Reports to determine whether you’ll be the right lawyer for me.”)

Clients don’t care about this stuff. Actually, I don’t think I would care about most of this stuff if I was going to hire a lawyer. This may have been different at some point in the past (I have my doubts, actually), but that ship has sailed: People hire people, not details. A lawyer bio (on a website or elsewhere) is often a lawyer’s first and only chance to connect with someone. And law review does not a connection make. (Save it for your C.V., available on request. If they care about it, they’ll ask.)

The better course (if the voluminous literature and personal anecdotes have merit) is to show clients that you’re a real person. I don’t think this has to be (or even should be, necessarily) strange hobbies or your favorite ice cream flavor. Instead, your lawyer bio needs to convey who you are and why you’re doing what you’re doing. If you’re proud of some of the aforementioned “usual offenders,” list them later and try to work them into a larger narrative about who you are. (Ex: “I wrote this law review article because I am passionate about riparian water rights because my dad took me duck hunting when I was a kid,” or “I argued and won (or lost) this case before the Arkansas Supreme Court to protect every Arkansan’s God-given right to fly a kite during a thunderstorm.”)

The grim reality about a good lawyer bio is that we don’t write them because we often don’t have anything to say. (A struggle for all of us.) We talk about law review and top-papers because it’s easy and we don’t have to answer hard questions like “Why am I doing this? or “What kind of lawyer do I want to be?” Sadly, I fear our answers to those questions would often be even worse than the drudgery of dry, bullet-pointed legal accolades: “Please call me because I went to school for seven years and need money!” or “Hire me and I’ll make sure that small conflict you have over that contract turns into a knock-down, drag-out fight, with billable hours to boot!”

Perhaps that’s a good goal for us: Practice in a way where writing a good lawyer bio would be as easy as walking someone through our day.

The First Time I Actually Felt Like a Lawyer

This is the third installment in my series of “Lawyer Firsts.” The first two have been overtly deprecating and, therefore (I hope), entertaining to anyone. (Not that I had to try too hard to make myself look foolish—I was just giving you a Joe-Friday-level recitation of the facts.)

 With this post, there’s actually less to point a finger at and laugh, but please don’t think it boastful. I spoke in one post about the negotiation-litigation “spiral;” well, that’s not the only spiral. I have also found there to be a distinct confidence-insecurity spiral. As a new lawyer trying to figure things out (basically) on my own, I often find myself caught in the tension between success and failure, or confidence and insecurity.

lawyer is in

 So, when I talk about a good day, it’s only because I know what a bad day is. Likewise, it’s only because I’ve had bad days that I am hungry for better ones.

 This was a (mostly) good day, but there have been many bad ones since. And that’s okay because success can’t be linear. As a new lawyer, I will simply have to fail to get better. The goal is to make the good and bad days more like a dance than a fight. When one (either bad or good) leads, the other has to follow and try to make something beautiful. Or at least something that makes sense.

 The first day I felt like a lawyer was another full-day hearing in a rural court. I had bad (or at least less-than-compelling) facts and tried to jettison most of these facts, seize on the few details that were favorable to my client, and then make a somewhat novel legal argument based on these few facts.

 That is, my pleadings were good—which is pretty rare in family law. Honestly, I still haven’t decided whether quality pleadings are an asset or liability in family law. Family law is so dang informal and, frankly, vacuous you don’t want to look too cute with fancy posturing. (What is a material change of circumstances, anyway?) But I had it on good information and belief that this particular judge would notice good work. And he or she did, in fact, notice.

 I like to think that the written work I did before the hearing inclined the judge to be a little more patient with me. If I wasn’t (and I’m not) Daniel Webster in court, it wasn’t because I hadn’t put in some real time on the back-end. Inexperience is excusable at some level, but lack of preparation isn’t, so I tried hard to make my writing make up for my performance in court.

 I noticed several times throughout the day that the judge was reading my briefs. This has to be a good thing.

 My opposing counsel was courteous and competent. I have since found out that he’s actually something of a baller when it comes to insurance defense. Why in the world he spent an entire day on this thing is beyond me, but I was glad to have gotten the experience.

 When they tell you in law school that evidence is the most important thing you have to know, I think they’re wrong. It’s most important to know civil procedure. But evidence is a close second, and unfortunately, you can’t look up the right answer when you don’t know.

 This was the first day that I’ve done any of my own substantial objecting-to and received any substantial objecting-to by another lawyer. It is very fast and very demanding. (And it makes me a little more gracious with lawyers when I read a transcript from court. It is difficult to be articulate in the heat of battle.) It is also exhilarating.

 Of particular note: Opposing counsel kept laughing at my client’s responses, to which I objected (Without any specific rule in mind, of course. It just seemed wrong.) The judge agreed and offered the following stinging legal erudition :“That is just about enough of that.” Well played, judge. Well played.


 On another occasion I was eliciting testimony about how cooperative my client had been and about his numerous efforts to settle the issues with mediation. The other lawyer objected because we were putting in evidence about settlement offers, which is, in fact, objectionable. The funny thing is that it’s supposed to protect the person who made the settlement offers, not the person who rejected them.

 That is, it should have been okay for my client to show the court how willing he has been to settle. It was his right to protect, but if he wanted to waive that right and make the court aware of his offers, that should have been fair game.

 I point this out to stress the importance of anticipating objections beforehand. My defense of this testimony was a ridiculous string of half-thoughts and convoluted legal reasoning. By the time I finished, even I had changed my mind because my explanation was so confusing. Lost that one, dang it.

 Here’s the first-time-as-a-lawyer part: Later I was able to exclude a particularly damaging witness simply because he or she had not been properly disclosed. This was very helpful to us, and it taught (or reaffirmed, I’m not sure) something that is important. It is no small thing to stand up, open your mouth, and tell a seasoned attorney that he or she can’t do something. And for someone who would always prefer that everyone simply got along, it’s always going to be uncomfortable.

 So what? If I don’t stand up and say something, who will? This is really basic, I’ll admit, but it gripped me that day. And I think that’s why I remember feeling like it was the first time I really felt like a lawyer. Certain things about lawyering are intuitive to me: I like dressing up, I like writing, and I like meeting new people. I love helping people.

 But I don’t like uncertainty, and I don’t like taking a risk in open court, and I don’t like going up against someone who was a lawyer before I was born. At that moment, however, (and thankfully), Stefan-as-Stefan faded away and Stefan-as-Advocate came through.

 I had behaved like a lawyer deliberately, not naturally. For me, conflict-laden advocacy is a habit, not intuition—it has to be cultivated through discipline. At that moment, I saw something objectionable and said something despite an overwhelming desire to stay seated.

 A modest victory from a legal standpoint, but it was incredibly helpful for me to see that lawyering isn’t about innate scrappiness. I don’t have to love the fight; instead, I just have to discipline myself to act a certain way when a fight is needed. And that will take me much further as a lawyer than natural scrappiness will. So that’s why I felt like it was my first day as a lawyer.