Category Archives: Uncategorized

A Nod to our Outgoing President

As we get ready to change administrations, the one thing that has always bothered me about President Obama’s two terms in office was a feeling of being deceived into voting for him in 2008; mostly based on my buy-in to his platform for change.  On a recent Vice news special, President Obama spoke directly to my concerns, in answering candidly, the very question I would have asked of him if given the opportunity to do so myself.

Question:  When you announced your candidacy in Springfield, you said; “Washington must change.”  You talked about building consensus, ending petty politics, so,…. two terms later; where are we?

President Obama:   “Well, that didn’t work out, did it? (in jest, a bit)  You know, I could not be prouder of the work that my Administration has done.  But, there is no doubt that one of the central goals that I had had, which was to make the politics in Washington work better, to reduce the knee jerk partisanship, to elevate the debate; I haven’t accomplished that. This is a humbling job, and so, sometimes I say to myself… well, if I had the vision and humor of Lincoln, or, the charm and persuasiveness of FDR, maybe, things would have turned out differently here in Washington. So, I’m happy to own that I wasn’t able to change attitudes among politicians as well as I would have liked. If people aren’t looking to cooperate; if they are not rewarded politically for cooperation, then, things can grind to a halt.”

What is clear to me is that what has been and continues to occur in Washington D.C. is a sort of the natural order of things, in this case decay, of a base sort of selfishness and zealous advocacy of special and/or self-interest that has eviscerated, and for the most part eradicated, the notion that service, sacrifice and honor as manifestations of true statesmanship are essential for good governance that must be reflected in the leadership of our nation.

In his response to the question, President Obama hit it squarely on the head.  The systemic paralysis and dysfunction of Washington, that we all for the most part accept as normative, is not only the root of almost all problems in our government, but is also, shamefully, a refection of us as a society.  The value system in Washington is but a mirror for our own base, selfish and “what’s in it for me” value system that permeates most of American society in general these days.  We now live in an instant gratification society where the things that entertain us the most are things like zombies, and sex, and video games where stealing and killing and maiming others is how points are scored, and where, the bottom line is all that matters and so long as our consumerism driven avarice needs are met it matters not much that the means to get those selfish needs met are questionably ethical, or, downright fraudulent at times.  That begs the question, why should Washington be any different?

In my opinion, our next president was chosen out of a desperate knee jerk reaction to doing anything different to what had been occurring in the past.  Hillary Clinton represented the status quo of nasty American partisan politics probably more than any other human being on the planet, and almost half our country rejected her and the distribution of those voters fit the electorial college such that Donald Trump is our incoming president.  What is clear to me now is that his presidency will very probably be the clearest reflection of our present day society as a whole.  I think that is both sad and terribly scary.

President Barack Obama has left a very large pair of shoes to fill under the desk of the oval office.  I dislike sounding like Chicken Little in portending doom, however, as I see it, Donald Trump’s feet are not anywhere near large enough to fill those shoes to do the job well. Unfortunately, maybe, just maybe, President Obama will be the last true statesman to ever be the figurative leader of our county.  He tried, and for that I applaud his efforts and his legacy.

 

My Thoughts on Obergefell v. Hodges

On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell v. Hodges.  In my opinion, this decision is the most “landmark” opinion issued by the U.S. Supreme Court since I became a lawyer in 1994.  To most, this case might seem like just another important decision by our high court, but in time (I think many years hence from now), it will be looked upon as one of the greatest decisions ever made by the Supreme Court; ranking right up there with decisions like Brown v. Board of Education, Gideon v. Wainwright, and Roe v. Wade.

The majority of the Court in Obergefell held three points: One, that the right to marry is a fundamental right inherent in the liberty of the person, and therefore, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.  Two, that same-sex couples may exercise the fundamental right to marry, and therefore, any State laws that exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples are unconstitutional and invalid.  And lastly, that there is no lawful basis for any State to refuse to recognize a same-sex marriage performed in another State on the grounds of its same-sex character (in other words, each State must recognize any same sex marriage created in another State and give it “full faith and credit”).

In my estimation the majority opinion in Obergefell is one of the most masterful pieces of precision writing I have read in quite some time.  Many critical commentators (including the dissenting justices) have criticized the majority decision as “legislating from the bench.”  Frankly, this is an old, tired, and hackneyed whine, usually made by conservatives that would rather see the Supreme Court be an inept and powerless entity of our governmental structure.  Anyone who believes that clearly never understood the importance and significance of Marbury v. Madison (an early U.S. Supreme Court decision that basically empowered the U.S. Supreme Court as our third branch of government).  Those same commentators might even think Marbury was wrongly decided, but anyone who thinks that really thinks there should only be two branches of government and not three.

Getting back on point, the majority of the Court in Obergefell did not make same sex marriage “legal;” it ruled that laws having the effect of prohibiting same sex marriage were unconstitutional as violating equal protection.  I think that is a huge and frequently underestimated distinction.  The former would be legislating from the bench, while the latter is actually fulfilling the role of the highest court in the land; that is… evaluating a law to see if it meets constitutional muster.

Same sex marriage was already “legal” in many of the States and it was not legal in others.  Here however is where I think this case becomes “landmark” territory… the majority of the Court basically found there is no “new” right or entitlement to same sex marriage; it was always there, just unrecognized up and until that point in time.  The decision simply is an evolution of thought, made manifest, that has finally caught up to the reality of natural human rights!

Frankly, it was shameful that it took until 1967 for the U.S. Supreme Court to decide Loving v. Virginia (the decision ruling anti-miscegenation laws [laws that enforced racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage and sometimes also sex between members of different races] unconstitutional), when in reality that decision should have been decided shortly after the 14th Amendment was ratified, but for society and the ever slow moving legal process to catch up.  Likewise, it is somewhat shameful that it took this long for our high court to find laws prohibiting same sex marriage illegal as well.

What is right is right, and what is wrong is wrong.  When people (and our courts) finally get around to realizing what is truly right or wrong… well, that’s an altogether different issue entirely.

 

 

 

A Scalpel to the Knee?

In my consultations with potential clients, I often use analogies with the medical profession and the legal profession because it seems to me that for whatever reason people can easily relate to what doctors do for their patients much more so than what attorneys do for their clients.

My habit of analogizing law and medicine started when I found myself frequently trying to explain to prospective clients how the seriousness of their legal matters would equate to a medical concern, if they had one.  For instance, when discussing a child custody matter I might say to a potential client that if their legal case was a medical issue it might be tantamount to the need for a knee surgery.   Sure, we are not talking cancer or open heart surgery here, but nonetheless, it was not something to be taken lightly.

Now the curious fact is that unlike hospitals, which absolutely do not allow people to just come in and operate on themselves, our court system does just that!  Our courts permit people to come in and represent themselves in their legal matters, and in doing so, our courts essentially allow people to “legally operate on themselves.”  In my many years of being a family law attorney it has been my experience, especially in handling “post-operative” repair work on various client’s past self-representation legal matters, that the results were just about the same as someone without any medical training taking a scalpel to their own knee.  As you can guess, in most cases the results were not pretty, and oftentimes, they were worse off than if they did nothing at all!

Now I can appreciate that this particular blog might sound self-serving and perhaps a little arrogant, and I certainly don’t wish to come across that way.  But I also struggle with my observations of how much injustice is done when our court system holds out that their doors are open to everyone and anyone who wants to represent themselves in their legal matters?

Hospitals don’t lease out their operating rooms for people to hack up their knees for a reason.

 

 

 

Relationship Pathology

Sometime back I was asked by a potential client… “What differentiates you from other divorce lawyers; what makes you special over some other attorney who says he practices family law?”  In response I said  that I felt that I was an excellent “relationship pathologist.”  I didn’t think much about my answer at the time, but the more I thought about it, the more I realized it was spot on.    At first, my quick response caught me by surprise.  Upon reflection though, I came to understand that my answer was perhaps the most honest one I could come up with for myself at the time.  

Prior to that conversation, I hadn’t put much thought into whether there was anything particularly special about me as a domestic relations attorney in comparison to other family law attorneys.  I hold myself as being scrupulously honest, but I also know many other fine attorneys who are honest.  I like to say I’m hardworking, but to be honest I know quite a few other attorneys who, frankly, need to get a life other than the practice of law.  I also like to say I am quite knowledgeable, and I pride myself with my constant search for learning more about my craft (Kaizen), yet I know some other lawyers who are “goofy smart.”  Uniquely however, I just know I am an excellent relationship pathologist, and having that skill has made my family law practice both interesting and successful.

It is a sad occasion anytime a couple divorces; it is a death, a death of a marriage and their relationship as they know it to be.  To be of best service to my clients in a divorce I often feel compelled to examine the cause of death in the marriage.  The reason why I feel this is important is that I feel I really need to know and understand the dynamics between the parties to help them get to the end of their marriage in the best fashion possible; one that is both expeditious and economical and also with the least amount of acrimony, if that can be had given their circumstances.

I must admit there have been times when conducting a “marital autopsy” that I can’t help but look at the struggles in my own marriage.  For the most part, I have an absolutely wonderful marriage to my wife of 14+ years, and yet, there is hardly a day that goes by without some sort of struggle or extension of effort to compromise for the betterment of the union.

I admire people willing to commit to what it takes to make a marriage work.  Unfortunately, I also know from my work that many marriages end, if not most marriages end, for a variety of reasons. Just as each marriage is unique; as unique as the individuals in it, each divorce is unique.  I find the study of how any relationship has died to be fascinating, and I think it helps to make me a better domestic relations attorney.  I hope it makes me a better husband too.

 

Why such beautiful courthouses?

No one has ever asked me the question: “how come government spends so much money building such beautiful and elaborate courthouses?”  I’m not sure I could have ever given a good answer to that question if asked, and since I am both a lawyer and a taxpayer too, I feel I should have an answer.  I certainly would think about that question from time to time whenever I happened to be in a newly constructed court building, especially federal court, and marveled at the well appointed surroundings.  By the way, if you haven’t had the opportunity to visit the Bruce Thompson Federal Courthouse on the corner of Virginia and Liberty Streets in Reno, or the Lloyd George Federal Courthouse in Las Vegas, you should take a stroll around.  Suffice it to say, they are beautiful works of architecture with granite exteriors, marble floors and mahogany wood walls that would duly impress anyone.

I tried looking up how much it cost to construct these buildings (I figure they cost quite a bit), but I got tired of searching.  I know the info is out there somewhere in the internet, but knowing how many millions of tax dollars it took to build the various state and federal courthouses might just make me upset, so I abandoned my search.  But it still has me thinking, why so beautiful?  Why so ornate?  Why so much?

Well after thinking about it a bit here is my answer; not “the” answer… just mine.  I often tell clients and friends that the legal system wouldn’t exist if people didn’t do three things: one, lie and be dishonest; two, fail to keep their promises and agreements that they make to others; and three, harm others physically or take from others that which does not belong to them.  Simple as that.  In essence, those three “human failings” are the cause of most disputes between people and courthouses simply exist to provide a forum for dispute resolution.

Okay, so then why not have an open public square, like a park?  Hash things out there?  Why the big, beautiful and expensive buildings?  Well, I suspect its because of the notions we all say we would like to aspire to, or at least hold out as virtuous, that speak to those three concerns.  We seek out and search for those notions when “wrongs” are done, and it’s in our human nature to want them materialized in the face of “wrongs” done.  To address dishonesty, we seek truth.  To address failures to keep promises, we seek accountability and honor.  To address taking and harm, we seek justice.

Truth, honor, and justice.  Three principles that should survive us if our species is to survive beyond us.  Principles that we should pass on to our progeny.  Perhaps these beautiful buildings are made to last as symbols for principles that transcend our every existence (or, at least from an ethical or moralistic philosophical perspective should)?  Perhaps they should last, and they should out live us and stand for as long as possible.  I guess that makes sense to me now, because as important as principles of truth, honor and justice are to our very existence, the umbrella over those three, in my opinion, is hope.  Those beautiful courthouses are symbols of hope; built to last.

Hope for truth.  Hope for honor.  Hope for justice.