“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.

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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.)

cliff

Dennis focuses on estate planning and elder law.

Brandon helps Dennis with his stuff and also handles a lot of business formation and business litigation stuff.

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.

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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.

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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 http://www.arktimes.com/ArkansasBlog/archives/2014/10/02/clarke-tucker-slimed-by-anonymous-mailer.

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.

lionel-hutz-iphone

 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.

My First Pro Bono Case

This is the second installment of my first-year lawyer “firsts.” My goal is *to deliberately set* aside some time to look back over my first year as a lawyer. I’m hoping to learn; I’m hoping to be encouraged; and I’m hoping to encourage some other folks. It has been hard and scary, but it’s been wonderful, too. These posts are helping me to remember that, because between the daily grind and the terror of the urgent, the good things will be lost if I don’t make an effort to keep them around.

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(**Asterisks will henceforth let you know that I have intentionally split an infinitive. And when I say I’ve split it, I’ve split it wide open like any of the following things:

1. A ripe, Hope watermelon in August.

2. The kind of spaces the Dixie Chicks like to sing about.

3. The way Scott Stapp of Creed likes to hold his arms.

That is, it was no accident.)

Lawyers help people solve problems, but there’s a lot more problems going around than there is money to pay lawyers. This is the so-called “justice gap”: You can’t get help without money, and it’s often the people without money that need the most help. I have found this to be especially true with family-law clients—when it rains, it pours.

This is why lawyers should feel burdened to handle particularly needful cases without charging for our services. I feel this burden, and I only wish that I could do more. There are also several completely self-serving reasons to volunteer to take a pro bono case, which I have articulated elsewhere. So, that’s why I took this case and will take more in the future: I both unselfishly want to help other people and also selfishly want to be a better lawyer.

My first pro bono client was wonderful—a model client. He listened to me and was always responsive. He wanted to understand the law. He didn’t care about making someone pay for past sins; he just wanted relief. All he wanted is some legal protection as he proceeded to raise his child (and raise him/her particularly well, I might add.)

This is the first lesson I learned from this case. Or, I guess you could call it an exception to a rule. Generally, I have found that people value the things that they pay for more than things that they get for free. I have seen this tendency born out in my law practice, too—if someone hires me on the cheap, they don’t value me or my time. Now, my client may have just been a wonderful person, but I actually think that his appreciation for me, despite the fact that he didn’t pay me anything, reflects another reality: There is a distinct difference between working for cheap and working for free. Working for cheap makes you look less valuable. Working for free makes you look gracious. I am now much more likely to give away my time than I am to work for less than I’m worth. After all, I don’t want people going around telling all their friends about how cheap their lawyer is, but I do want people going around telling people about how kind and empathetic I am.

And then I proceeded to set a hearing for this wonderful client, where I then proceeded to lose to a frenetic, shrieking, false-crying, illiterate, unemployed, pro-se baby-momma in leopard-print leggings and bejeweled stilettos. (I couldn’t find a picture of said stilettos, but you can get a general idea from the picture I found.) Well, I say I lost, but the judge actually appointed an attorney ad litem to represent the child. But it felt like a loss for obvious reasons.

I guess this prompts another lesson: Strange things happen. I would have thought that above-mentioned baby-momma dropping young child off at dad’s house for months on end would constitute a material change of circumstances, but I was wrong. Family law is weird, y’all.

Thankfully, the ad litem was wonderful and completely changed the “landscape” of this “litigation.” (It makes me feel better to think that this “litigation” had a “landscape,” but that’s open for debate.) I like to fancy myself something of a shalom-broker, but that role is often limited because I’ve also got to be an advocate. But that’s exactly what the ad litem was able to do in this situation—she brought peace where there was none (and little chance of finding any.) The fabric of this child’s life was tearing at the seams, but the ad litem stitched it up.

The case could not have ended any better. My client got custody and successfully enrolled the child in an outstanding school. (The child had previously attended one of the worst schools in the state.) I got a picture from my client on the first day of school with the child beaming from ear to ear, donning an obviously freshly pressed school uniform and new haircut. This kid might grow up to be President.

And I guess that’s the most important lesson: I helped alter the course of this kid’s life simply by showing up at court in a suit and asking the judge for help. All I had to do was show up.

It’s days like that that I’ve got to remember or else I’ll forget that people need me. They don’t necessarily need my ten years of college or carefully articulated legal arguments; they just need someone with a bar number to stand with them and humbly ask for stuff. And even a new lawyer can do that.

My First Day in Court

first-day-in-court

I don’t think there was anything this dramatic, but it sure felt that way.

This is the first in what I hope to be a series of posts on new-lawyer “firsts.” I’ve been doing this lawyering thing a year now, and I haven’t had a chance to do any formal introspection. Today, then, is the first “first”: My first day in court. I’m hoping these “firsts” will give me an excuse to look back on my first-year ups-and-downs and make sure I learned all that I could.

Note: Self-indulgent rant about “authenticity.” If blogs allowed footnotes, that’s where this would go. Skip this section for the meaty stuff.

I’m frankly a little torn on these kinds of blog posts. On one hand, I think there is tremendous value in the process of laying oneself bare, even as a professional. I find that people—whether clients or potential clients or whomever—respond far more favorably to real-person lawyer than untouchable-person-lawyer. And there is much that I need to learn through evaluating myself; that process is all the more helpful when I do that evaluation before, say, the internet. Lawyers are changing, for sure, but in my experience, there’s a whole lot more genuflection (whether to self or to others) in the legal community than true reflection, which means that many attorneys simply don’t get any better. I don’t want to do that.

But I’m also getting tired of the cult of authenticity/vulnerability/transparency/genuineness/etc. Some things really are better left unsaid and unshared.

There must be, however, some achievable balance between these two extremes. Yes, my name is Stefan and I am a real person with real person-like qualities. No, you don’t need to know what I had for breakfast or what I’m insecure about. I hope that posts like this one are able to thread that needle.

There.

Courtrooms are intimidating, and they are particularly intimidating for a new lawyer. I’m thankful, therefore, that I got my first day in court in the comforting flexibility of a small town. This is important because as a general rule, these folks allow you to make up for actual competence with sincerity and kindness. I asked a ton of questions and got a lot of really helpful answers simply because I was nice and looked (and was, mostly) lost.

The courtroom was large and packed with people, which only compounded my anxiety. The thought of having to examine a witness in front of 40 people was terrible, even though I’ve got a fair amount of public speaking experience. That’s another good takeaway: No matter what you’ve done, you haven’t been to court until you’ve been to court. It’s different. There’s a strange rhythm that’s unlike any other context I’ve seen.

Back up: when I arrived at court, I decided to go meet the judge’s case coordinator and see if I could extract anything useful. One thing led to another, and I ended up sitting in the judge’s chambers drinking coffee and discussing the vagaries of law practice. I explained to the judge that this was my first day in court, which I think was probably the most helpful thing I did throughout the entire process. I received a lot of grace that day, and when I say grace, I mean grace. I got a lot more than I deserved.

This brings home another crucial takeaway: Be humble. The value of my advocacy that day had nothing to do with my skills or knowledge of the law. As it turned out, I knew the law better than anyone, and it didn’t really matter. My excellent pleadings (Bryan-Garner-approved; wide margins; tasteful font; pinpoint citations; signal words, etc.) didn’t matter, either. The judge liked me because I wasn’t too proud, and I received a better result because of it.

Given the nature of my client’s case, she was ordered to submit to a drug test. She failed said drug test, which produced a cacophony of her wailing, baby-daddy cussing, and mother-in-law threatening to sue the state. (She did not identify a particular cause-of-action under which this lawsuit might proceed.)

I had no idea what to do. So I went back to the judge’s chambers (he was now out of court) and begged him to give my client another drug test. He reluctantly agreed, so client and baby-daddy loaded up in my truck (seriously), and we drove down to the police station, which also served as criminal circuit court. I ordered them to sit down in the hallway while I interrupted open court (This was the day of the month, oh by the way, when all the criminals with felonies had their hearings.) to talk to someone named “Jessica.” She just happened to be seated at the very front of the room next to a judge who was speaking loudly.

After explaining to her my situation through the struggle of hushed voices v. angry-judge-who-is-rebuking-hardened-criminal, she took my client and I down to see some well-armed deputies. These were the kind of deputies who don’t share my sentiment on why lawyers are important. We made small talk (very small, actually) while client took the drug test and, miraculously, passed.

Here’s another important takeaway from the story that I have found to be nearly universally true (especially in family law): You have not because you ask not. There is no reason whatsoever that I should have asked the judge for another test, that he should have given it to me, that I should have loaded these people into my car, that I should have interrupted open court, or that my client should have passed her drug test. This wasn’t a logical decision; I was just willing to do the silly thing on behalf of my client because her interests are more important than my pride. It was another valuable lesson.

For lunch, I decided to walk to a local café to drown my stresses in chicken-fried-steak and peach cobbler. This was unwise. I don’t care how you eat on a normal day, I would keep court-day meals light and easy to digest. There are few things more likely to produce a malpractice claim than a suit jacket that’s suddenly too small or audible indigestion. I actually don’t have any statistics on that, but the advice is good: Don’t overeat if you’re going to be in court.

We didn’t get started in earnest until about 1:30 in the afternoon, at which point the witness examination began. (By the way, I had asked the judge for an opportunity to deliver an opening statement before we began. His answer: “No.” The whole “you have not because you ask not” thing is a principle, not a promise.)

Most of this examination was pretty straightforward, but one episode in particular bears special emphasis: Baby-daddy. Baby-daddy was indignant about court and indignant about the judge and indignant about the cops and seemed to be even indignant about my tie As a delightful complement to this aspect of his personality, he was also unable to understand that his opinions were any less persuasive than, say, the actual law or the actual facts.

He was arrogant and made for a terrible, terrible witness. And as much as I’d like to blame him, it was ultimately my fault for not preparing him. I don’t really know if it would have made much of a difference, but it might have. So here’s another takeaway: Never assume that a witness is going to be anything but incomparably bad. Some people truly have no idea what they’re supposed to do.

After he got off the stand and I regained my composure, it became clear that things were not going well for us. Sensing our impending doom, I suggested that the parties “try to work something out” or something along those lines. I am sure that my request sounded like a drowning man coming up for a last desperate gasp of air. The parties went into separate rooms and the lawyers proceeded to shuffle back and forth trying to reach a workable solution. There wasn’t one, but it did give everyone—including the judge—a better chance to understand the situation.

I didn’t know it that day, but I think my inclination was right to step outside the heat (or what I perceived as heat) of litigation. I now think of this as the “litigation-negotiation spiral.” When you can’t litigate, negotiate to strengthen your position. Then, perhaps, you have something to litigate. If you can’t negotiate, litigate until you corner someone enough to agree on something. Then, perhaps, you can litigate a little more. And then negotiate. Rinse and repeat.

The day wore on and everyone could pretty much see the writing on the wall: No settlement was going to happen. As we all prepared for the judge’s ruling, the bailiff suggested that we should do a background check on the parties for good measure. Everyone agreed it seemed like a good idea.

Lo and behold, one of the people seeking guardianship was a felon. And you can’t be a guardian if you’re a convicted felon. No one had even thought to ask. This prompts my last first-day takeaway: Read the statute. Since that day, there have been several occasions where I have had a decisive advantage over another attorney simply because I knew what the law said and pointed it out in a coherent way. Thankfully, even a new lawyer can manage that.

It was an outstanding first day to have spent in court, really. I’m not sure that I would recommend anyone else’s first day be one that lasts from 9:00 a.m. to 6:15p.m. (I’m not kidding), but I guess if it had been easy or predictable, I would be talking about something else.

July 2014 Arkansas Bar Exam Results

Congratulations to all those who passed the July 2014 Arkansas Bar Exam!

It has already been an entire year, but I vividly remember the visceral feeling of relief after getting those results. What a day it was! If you worked to pass, you should be proud of yourself. If you didn’t work hard to pass, then you should clean up your act before you start lawyering.

But seriously—we are pleased to have you all as colleagues. Do well.

 

2014 July Bar Exam Results