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January 01, 2018

From the Editor in Chief

By: Kathleen A. Hogan

A number of popular reality shows provide contestants with a series of obstacles to be overcome between the starting line and successful completion of the challenge. Whether the particular contest involves cooking ability, physical strength, or some other skill set, a hallmark of the contests is that not every challenge can be successfully overcome by using the same approach. From the lawyer’s perspective, handling a domestic relations case from start to finish could be likened to a reality show contest that involves traversing an obstacle course in which it is necessary to navigate over, around, or through a series of roadblocks. While there are no celebrity judges or call-in votes, what we do as practitioners also requires the ability to identify the nature of the various roadblocks and devise strategies for overcoming them. Unlike the situation faced by the reality show contestants, in our practice, there are some roadblocks that can be overcome and others where the wisest course of action may be to avoid beating a dead horse and acknowledge that certain barriers are insurmountable. The trick is to know which is which.

Louise Truax has addressed “Roadblocks to Representing the Client or Taking the Case.” As she points out, no client is the perfect client. Each case presents its own set of difficulties, which may stem from finances, the client him- or herself, the novelty or difficulty of the issues presented, client expectations, outside sources and influences, or co-counsel. The ability to recognize and confront such issues will enable the practitioner to manage these roadblocks. The author identifies helpful considerations to be weighed when deciding whether take a case.

Sometimes the roadblocks come from the court. In “Tactful Tactics: How to Find Your Way around Court-Imposed Roadblocks,” Brad Geiger has addressed strategies for dealing with court-created roadblocks. As he points out, a particular level of finesse may be required because challenges to the directives or procedures run the risk of prejudicing the client’s case or undermining the lawyer’s effectiveness in future cases. Nevertheless, measures may be available to effectively present the client’s case within the constraints imposed by the court.

The lawyer will face a unique set of challenges when the opposing party is unrepresented. Amy Talvo MacNamara has provided an article called "Pro Se Roadblocks: How to Get Around Them.” While lawyers must zealously advocate for their clients, they must also treat self-represented parties with respect and courtesy. For those who represent themselves, the legal process is confusing, and they often feel powerless in a system designed for specialists. Moreover, for many people, self-representation is not a choice—it is a necessity. This article provides tips for working proactively with self-represented individuals to avoid roadblocks to settlement and trial.

On occasion the roadblocks may spring from “The Court’s Jurisdiction or Authority to Act,” as I titled my article for this issue. When a court’s lack of jurisdiction is the roadblock to resolution, attempting to avoid or ignore the roadblock will not be successful and may ultimately raise professional liability concerns. If a jurisdictional roadblock is suspected, it will first be imperative to identify whether the concern relates to personal jurisdiction or subject matter jurisdiction of the court. Personal jurisdiction problems may be solvable, but a lack of subject matter jurisdiction is not subject to waiver. Standing and venue issues may also crop up to create roadblocks. Local statutes, rules, and cases typically provide guidance as to if or when such defects may be waived. Nancy Schneider has addressed the instances where “The Difficult Client” represents the source of the roadblock. Understanding the difficult client can produce more effective representation and better decision-making about whether to represent in the first place. The difficult client’s problematic interactions can be understood as a response to: 1) personality (character) disorders; 2) a major mental illness; 3) behavioral disorders such as lack of impulse control and addiction; and 4) trauma and incapacitating symptoms arising out of extreme external events. Managing difficult clients starts with treating them, like all clients, with dignity, civility, responsiveness, respect, and clarity about the process. Set realistic expectations. Do what you say you will do, or explain why you cannot. Avoid exacerbating the difficult client’s behavior by unconsciously responding to it in some equally problematic manner. Continue to do the necessary and timely work. Finally, determine which clients to represent, as that is key to maintaining professional sanity.

Lisa Tucker has provided an article addressing “Ways Around Roadblocks for Attorneys and Clients with Physical Disabilities.” Both attorneys and clients with disabilities value common-sense solutions for dealing with the kinds of challenges they face. Any individual with vision, hearing, or mobility impairments seeks respect, understanding, and flexibility. Attorneys whose clients have disabilities will benefit from a bit of research, communication, and planning in advance of clients’ visits. It is also important to remember that clients and employees with disabilities may be limited in small ways but incredibly gifted in others.

James Mahood has updated an article by the late Joanne Ross Wilder titled “The Right Man’s Burden and Other Disorders of the Profession.” This article offers a (tongue-in- cheek) diagnostic tool for identifying some of the more common lawyerly afflictions that create roadblocks to case resolution, including “phonophobia,” “rambosis,” “the slipped disk,” and others.

John Lande has provided an article titled “Overcoming Roadblocks to Reaching Settlement in Family Law Cases.” Although most cases eventually settle, the negotiation process is usually not pretty. Adversarial posturing escalates the original conflict; relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways of overcoming them to reach good settlements in family law cases.

Raymond Goldstein has written “The Curvy Road of Enforcement: Keep Driving and Avoid the Roadblocks.” He addresses ways of dealing with enforcement roadblocks and examines when a roadblock might better be regarded as either a rest stop or the end of the road.

Christina Owen Miller raises the question “Could Your Divorce Fees Be Impacted by Your Client’s Bankruptcy Filing?” It is not uncommon for debt-ridden spouses to be advised to commence a joint Chapter 7 liquidating bankruptcy case prior to obtaining a divorce and thereby wipe out their unsecured, dischargeable debt before their remaining property and debt obligations are allocated in a final dissolution decree. While a bankruptcy filing might be in your client’s best interests, it might bring unwanted scrutiny to your own fees. This article informs practitioners about the practical and legal effects of a bankruptcy filing on their fees, regardless of whether such funds have been recently earned or are still being held in trust.

Mary Bower Sheats addresses “The Bankruptcy Stay as a Roadblock, and How to Overcome It.” If a divorce action is pending at the time of a bankruptcy filing, the bankruptcy will stay the divorce to the extent that the divorce proceeding seeks to determine the division of property that is property of the bankruptcy estate. This article discusses the ramifications of bankruptcy for divorce proceedings and ways to manage them, to the extent possible, for your clients. fa

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Kathleen A. Hogan

Editor in Chief

Kathleen A. Hogan ([email protected]) is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and editor in chief of Family Advocate.