Will Moredock, columnist for the Charleston City Paper has plugged my blog on the City Paper’s web site:  Gregory Forman – A Lawyer Who Understands More Than Law.  Thanks Will!

A few months ago I tried an initial custody case involving an eight-year old child on behalf of the father against a pro se mother.  Patel v. Patel, 359 S.C. 515, 533, 599 S.E.2d 114 (2004), stands for the proposition that “there is an assumption that custody will be awarded to the primary caretaker.” Aware of this, I attempted to create substantial evidence in support of father’s claim for custody by showing that he was the primary, and only stable, caretaker for the child.

During the child’s life there were three periods, each lasting approximately one year, that mother was largely absent: once due to medical incapacitation; once due to incarceration; and once due to a move to Louisiana.  At trial my cross examination of her attempted to elicit testimony that she was unable to “care” for the child during these periods.  She vehemently denied what, to me, appeared seemingly obvious, claiming that even while incarcerated or hospitalized or a thousand miles away, she had “cared” for her child.  Each time she would explain her “care” in what I perceived of as largely irrelevant details: she had sent the child a doll or a few articles of clothing.  In the heat of trial these answers seemed slightly loopy.  Meanwhile, she seemed to take great offense at my questions.  The whole experience was slight surreal but in family court one gets used to this feeling, even if the feeling never become wholly comfortable.

Long after the trial, I had an “a ha” moment:  Mother and I had differing definitions of “care.” Using the definition from Patel, I understood “care” as the actual work of handling the child’s day-to-day physical and emotional needs.  Mother saw “care” as being concerned about the child’s well being and wishing the child’s happiness.  From mother’s perspective, asking her if she “cared” about her child was offensive: how dare some attorney imply that didn’t wish her child well?

In any litigation, and especially at trial, an attorney needs to strive for clear communication.  Given the specialized training and typically higher level of education that attorneys have compared to the general population, there is always a concern about speaking over the audience’s or witness’ head.  Even when my questions don’t struggle against the mangled syntax that happens when your thoughts alter slightly in the midst of asking a question, I remain concerned that my questions may contain words not understood by the witness.  One benefit of a large vocabulary is that one has a better chance of selecting the “right” word for the particular thought one is trying to convey.  However if the word being used isn’t understood by the audience, using the “right” word is less effective than using a simpler word.  The balance between choosing the right word and the simpler word is a continuous struggle.

In the example above, however, even a simple word like “care” created tremendous misunderstanding.  With greater emotional intelligence I might have had that “a ha” moment during trial, been able to acknowledge my lack of dispute that mother was always concerned for her child’s well being, and been able to clarify my questioning to note that I was seeking information on mother’s day-to-day care for the child’s physical and emotional needs.  Instead mother and I locked-horns during a frustrating day.

In litigation clear communication remains the attorney’s responsibility.  The lesson–being learned slowly as I gain experience but never learned perfectly–is that even seemingly simple communication can lead to great misunderstand.

My materials for a February 9, 2010 National Business Institute lecture on Advance Family Law are available here:  Getting the Child Heard

Sometimes I think I have potential as a marriage counselor if and when I hang up my law license.  Sixteen years of practicing family law and, if you’re paying attention, you begin to learn why marriages work and why they go bad.  Typically they go bad not because one spouse or the other changed for the worse after the marriage but because they were on their best behavior prior to the marriage and weren’t on such great behavior thereafter.  Often one spouse didn’t see obvious warning signs prior to marrying.  It’s not really clear that living together before marrying remedies this potential ignorance.  This leads to my theory that there are three things one should see one’s intended through before tying the knot.

See your intended through one illness (and have your intended see you through one illness) Age brings increasing infirmity.  Most of us start out healthy and end up dead.  Middle age is a bitch and I presume that old age is only going to get worse.  Sticking with one’s spouse through “better or worse, sickness and health and ‘til death do you part” suggests seeing one’s spouse through a lot of illness.  It’s a good idea to learn how your intended handles illness before he or she becomes your spouse.  Some folks graciously accept assistance when ill and others become withdrawn or grouchy.  Some folks will complain more from a toothache than other folks will from a belly full of buckshot.   Some folks are empathetic to a spouse’s ills and others are less so.  If seeing one’s intended through the flu or a winter cold leaves you feeling ragged and angry, I would suggest that seeing them though a serious illness will have you wishing for a divorce.  If your intended has trouble comforting you (or if you have trouble accepting your intended’s comfort) when you have a mild illness, I suspect he or she will be cold comfort when you suffer a stroke or cancer.

See your intended through one major crisis Few of us show the same poise and courage during crisis that we show when things are going well.  Learning how one’s intended handles a crisis is indicative of the type of support you should expect when a crisis hits the marriage.  When your intended loses a job, has a major health problem, or suffers the death of a loved one, how does he or she react?   Most of us will not be our best but will muddle through with some combination of anger, denial and time.  A few will stop functioning, freak-out or go into attack mode.  Marry them and expect each crisis to be increasingly destructive.  Even fewer will handle the crisis graciously and use it as an opportunity for growth or productive change.  If your intended is one of these rare individuals, marry him or her and consider yourself blessed: you will always have an ally in a crisis.

Take a one week road trip with your intended Poor hygiene, extreme fastidiousness and obsessive-compulsive behaviors have ruined many a marriage.  All are extremely hard to hide during a week-long road trip.  If you and your intended can find an acceptable balance on issues like where to eat, where to sleep, how rigid or flexible to stick to the itinerary, and where and when to detour from said itinerary, you and your intended will probably be able to finesse the many small disagreements that arise whenever two adults share a life.  If, however, you find your betrothed boring or annoying after the week, don’t marry. If your betrothed is inflexible, high maintenance and treats every setback as a major disaster, you’d best prefer a life of utmost stability and minimal spontaneity and enjoy sharing your bedroom with an angry stressed-out person.

I suspect, though I could never prove, that these three tests are better methods of evaluating a potential mate than the advice from any self-help guru I have read.  Having a mate who provides and accepts comfort during life’s troubles, who keeps calm in a crisis, and who shares your general temperament can provide bountiful joy.  And having a mate who can’t leads to a miserable marriage or divorce.

Recently I fussed at a guardian of whom I am quite fond.  It’s never comfortable to fuss at folks one likes but I come from a culture where it’s considered better form to let others know one’s expectations than to remain silent and not allow others to meet these expectations or explain why they are unrealistic.  My experience is that when folks allow unspoken expectations to remain unmet it eventually leads to a breach in the relationship.   Better to confront than to slowly drift apart.

The blog on how to draft an affidavit was inspired by a two-hour phone conference that devolved into an increasingly frustrating attempt to get a counselor I am fond of to draft a coherent affidavit and was written as a form of penitence/apology to the fussed-at counselor.  This blog is penitence/apology to the fussed-at guardian but is directed to all of the guardians out there who work on my clients’ custody cases.

I have four expectations for a guardian in my custody cases and there is one expectation that other attorneys sometimes have that I never have.  The four expectations are: 1) the guardian will undertake the investigation I suggest or provide me a written explanation as to why that investigation does not need to be undertaken; 2) the guardian will present an honest evaluation of what her or his investigation uncovers, eventually in writing, and that this evaluation will acknowledge the good and the bad that the guardian has discovered about each parent (rather than simply focusing on the good aspects of one parent and the bad aspects of  the other parent); 3) the guardian’s oral and written reports to the court will focus on factual analysis (and not merely state opinion, make credibility determinations or regurgitate hearsay) and will comply with the code regarding guardian reports; and 4) the guardian will be adequately prepared to address the contested issues at any hearing involving the children’s custody or visitation.

The one thing I never expect a guardian to do is support the position that I advocate.  So long as the guardian does the four things I expect above I will never fuss as the guardian.  This does not mean that if I believe the guardian is failing to apprehend or acknowledge some important fact or issue I will not point that out to the guardian, but merely because the guardian does not advocate a position my client would have hoped she or he would advocate is not a reason for me to get upset at a guardian and I will continue to use and respect a guardian who routinely advocates a position contrary to my clients’ wishes if that guardian meets my four expectations above.  The only reasons I stop using guardians is that either they fail to meet those four expectations above or that I find their judgment or analysis to be routinely so flawed that the court routinely rejects their conclusions.

My clients pay substantial fees to the guardian and place trust that a guardian will properly advocate their children’s “best interests.”  A guardian’s failure to properly do his or her job can be devastating to my clients’ relationships with their children.  Unless my expectations are unreasonable,  a guardian who fails to meet them deserves to be fussed at.

My wife, Karen Klickstein-Forman, LISW-CP, and I co-mediated our first cases today, mediating three abuse and neglect cases in the Charleston County Family Court, completely settling two and settling the treatment plan, but not the merits finding, in the third case.

Social worker-attorney teams are considered quite effective in co-mediating family law issues, as are husband-wife teams.  Karen and I might be the first husband-wife, attorney-social worker team to become certified family court mediators in South Carolina.

Of course, until one does it, one cannot tell if one will be able to work with one’s spouse in a professional setting.  Even though both of us have worked in the family court system for over a decade, our work has always been on different cases.  Degenerating into marital bickering, though not expected, is always a possibility until one actually tries to co-mediate with one’s spouse.

Yet it worked out fine.  It’s probably lacks propriety to call abuse and neglect mediation “fun” so let’s just call it satisfying, and it is always nice to see one’s spouse shine in a professional setting.  A tip of my hat to Karen, who proves yet again that she can make almost anyone comfortable and can tolerate almost any personality type, even mine.

80° sunny day in Charleston and my morning calendar fell apart…so I decided to do lunch at my second grader’s school.  After lunch I organized an impromptu game of basketball for her and her classmates.

Going to lunch at her school communicates love and care.  It is largely the privilege of the unemployed (many “stay-at-home” mothers), the self-employed, and higher management.

Children grow up fast and by their teens they deign to spend time with us.  If this country was as “family values” oriented as we claimed, every parent would have the right to do lunch at his or her child’s elementary school monthly.

Last week Thomas L. Friedman, three-time Pulitzer Prize winner and New York Times columnist, wrote a piece describing the current recession as largely caused by “an education breakdown on Main Street.”  He singled out the legal profession, noting:

A Washington lawyer friend recently told me about layoffs at his firm. I asked him who was getting axed. He said it was interesting: lawyers who were used to just showing up and having work handed to them were the first to go because with the bursting of the credit bubble, that flow of work just isn’t there. But those who have the ability to imagine new services, new opportunities and new ways to recruit work were being retained. They are the new untouchables.

Before concluding:

Just being an average accountant, lawyer, contractor or assembly-line worker is not the ticket it used to be. As Daniel Pink, the author of “A Whole New Mind,” puts it: In a world in which more and more average work can be done by a computer, robot or talented foreigner faster, cheaper “and just as well,” vanilla doesn’t cut it anymore. It’s all about what chocolate sauce, whipped cream and cherry you can put on top. So our schools have a doubly hard task now — not just improving reading, writing and arithmetic but entrepreneurship, innovation and creativity.

Entrepreneurship is not something that is taught in professional school (other than business school) but as someone who has been self-employed for all but the first two years of my eighteen-year legal career, and as the spouse of a professional who has had frequent bouts of underemployment/self-employment, I regard it as an extremely valuable skill and mindset that our professional schools should be teaching.  Thinking about one’s profession as not just a service being offered but as a relationship with customers that need to be “satisfied,” learning how to “market” one’s professional skills, and recognizing that creativity as well as knowledge is a vital component of professional practice are attributes that frequently distinguish the “successful” professional from the “unsuccessful” one.  Professional schools assume that such skills will be developed through on-the-job training but this is an often-incorrect assumption.

Friday, the South Carolina Judicial Department posted the results of the July 2009 bar examination, with three hundred and seven Juris Doctorates passing the examination, one hundred and seven from the local law school.  After the November 16, 2009 swearing-in ceremony, these newly minted attorneys will join our profession, many in the Charleston area, all seeking fulfilling and remunerative employment.

My experiences from both formally and informally mentoring their recently admitted colleagues is that many will need to develop their own business to earn a living or develop professionally.  I empathize with their plight: forced to be entrepreneurs when they have only been trained to be professionals.  However, the proper response isn’t to divorce professionalism from entrepreneurship but to make entrepreneurship part of professional training.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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