Don’t Accept 80% of What Anyone Tells You

The title of this blog post is purposely a teaser, hopefully getting you to take a moment to read it. But, on a serious note, this title goes to a theme I believe we all should follow; a theme I also express consistently to my daughters to help them chart their way in life more successfully, more powerfully, with greater happiness, and with fewer hurdles and stumbling blocks created by others.

I express these same points often to clients as a preventive recommendation in an effort to help them avoid problems and issues (legal and non-legal) that otherwise occur from merely responding to life with a “go along to get along” attitude. I also refer further below to a related book I just finished yesterday about the Vietnam war: “The Things They Carried” (1990), by Tim O-Brien.

The key point is that we all should not simply, and without question, accept 80 percent of what anyone tells us.  Yes, from anyone. My reasoning is not that others are necessarily dishonest or purposely trying to mislead us with misinformation. But, rather, that we all communicate with inevitable limited information, bias, partiality, dogma, etc. We most often communicate only within the limited sphere of our own experience. This is normal. We also shade our communications frequently in a way to try and trigger a certain feeling in the listener (or reader). It is extremely difficult, and ineffective, to communicate only with unbiased, objective, neutral facts. This might sound possible in theory, but, in my view, it is fundamentally unrealistic.

Therefore, resting on the notion that there can be no (or very little) unbiased, objectively neutral discourse, we should discount most of what we hear from others, until we thereafter run it through our own framework. In other words, stop and view the information through your own perspective before simply accepting the information someone else places before you. You will be much happier in life, and (because this is a legal blog) likely end up with fewer unintended, or blindsided, problems that require you to seek costly legal counsel.

Now, my last point. Feelings? Seriously? Why do I refer to our wanting to convey a certain feeling to others in the context of our communications? What I am trying to say is that our communications are much more effective if we can trigger a desired feeling in the context of what we are trying to communicate. Whether we are consciously aware of it, we are bombarded every day with communications, arguments, platitudes, dogma, advertising, all designed to influence how we feel about the information.

This idea of purposely triggering feelings really jumped out to me in the book The Things They Carried, by Tim O’Brien. Click here for more info about this book. It is about O’Brien’s late-1960s infantry stint in Vietnam. It is one of the most powerful Vietnam books I have ever read. O’Brien discusses along the way in this book how he purposely augments and fictionally shades certain of his war stories in order best to convey the feeling he trying to express to the reader.

In other words, without O’Brien augmenting his war stories with these shadings, a reader might become aware only of the objective, factual nature of the war event, but will not feel the experience. I have never prior to reading The Things They Carried had anyone better than O’Brien express this “feeling” distinction about the art of writing. I also have never felt a war experience from any book more powerfully than from The Things They Carried. I highly recommend this book for anyone who is interested in further refining the art of writing, or who simply wants to envision and feel what it was like to have fought in the Vietnam war.

Finally, and as to my legal work, I am not suggesting we shade or fictionalize facts when we are required to present those facts ethically, truthfully, and honestly. But, we need to be aware (and be on alert) that even a recitation of ostensibly truthful facts can be presented in a manner (with inflection, rhythm, adjectives, related metaphors, etc.) substantially coloring how one might feel or react to those facts.

Really? Gone with the Wind

 

I am working with a lawyer who grew up, and lives, in California, virtually her entire life in LA, and who attended undergrad at UC Berkeley as an English literature major.  She has never lived in the South. Over lunch recently in LA we were talking about our favorite books, etc.  To my great surprise, she said Gone with the Wind (by Margaret Mitchell) is one of the books she most frequently has re-read over the years.

I was shocked.  I asked “why”?  I told her I had never read it, and candidly never had an interest in reading it.  I thought Gone with the Wind was just a simple, overly-long, southern romantic novel. To the contrary, her response was that Gone with the Wind conveys more powerfully than most any other book she has read the difference between those who survive and those who do not survive, and the dimensions of that distinction.

I am now one-third into reading Gone with the Wind, and admit I was greatly mistaken, narrow-minded, and uninformed about this brilliant Margaret Mitchell novel.

This blog is merely to convey my recent reaction to one extremely powerful passage from Gone with the Wind, as I state further below. [Mitchell was a phenomenal writer;  there are dozens of other such passages that struck me very powerfully.]

But, let me first clear the air in stating Gone with the Wind very effectively conveys the broader, tragic, and costly narrow-minded ignorance of the South in its Civil War opposition to the abolition of slavery.  Also, Gone with the Wind is the only portrayal of the horror of war that took place in the geographic area I know so well, Atlanta. No doubt, wars that have taken place elsewhere are no less tragic, but reading Gone with the Wind as it took place in Atlanta, with Americans killing other Americans, gives me a powerfully vicarious extra-dimension, that I have never previously experienced.

Now my primary blog point. And, this is a spoiler if you plan for the first time to read Gone with the Wind.  The excerpt below from Gone with the Wind is after Scarlett O’Hara returns to her home “Tara”, in Jonesboro, Georgia, after General Sherman overtook Atlanta. She is 19.  Her mother Ellen died the day before Scarlett makes her arduous journey back from Atlanta to Tara.  I purposely, so as not to expand this spoiler, do not detail what events lead Scarlett up to her following internal dialogue, as she pondered her horrific, changed world:

Nothing her mother [Ellen] had taught her [Scarlett] was of any value whatsoever now and Scarlett’s heart was sore and puzzled. It did not occur to her that Ellen could not have foreseen the collapse of the civilization in which she raised her daughters, could not have anticipated the disappearing of the places in society for which she trained them so well. It did not occur to her that Ellen had looked down a vista of placid future years, all like the uneventful years of her own life, when she had taught her to be gentle and gracious, honorable and kind, modest and truthful. Life treated women well when they had learned those lessons, said Ellen. Scarlett thought in despair: “Nothing, no, nothing, she taught me is of any help to me! What good will kindness do me now? What value is gentleness? Better that I’d learned to plow .   .   .    .

Oh, Mother, you were wrong!” She did not stop to think that Ellen’s ordered world was gone and a brutal world had taken its place, a world wherein every standard, every value had changed. She only saw, or thought she saw, that her mother had been wrong, and she changed swiftly to meet this new world for which she was not prepared.

Excerpt from Gone with the Wind (Chapter 25) [I added the bolding].

So, why do I like the above excerpt enough to include it in this blog post? I will not bore you with a long-winded explanation. But, I state two reasons.  One, in my view Scarlett arrives at the correct realization that the world is not simply some nice, loving, everyone-should-be-good, kumbaya platitude. This platitude in my view, generally from parents, schools, religious organizations, those already holding the upper hand, is too frequently and easily expressed, with a silent denial of the other side of life (which Scarlett is forced to observe and accept). As a father of daughters, I also believe girls — to their longer-term detriment — are expected to buy-into this little nice, neat platitude as an unfortunate goal so as to “go-along to get-along”.

Two.  This point goes to why I enjoy being a lawyer. With a realistic acknowledgment that the world is not simply made up of positive, mutually loving, lack-of-self-interest elements, my primary goal is to help level the playing field for my clients as to the other negative side of the coin, especially when the other party greatly overextends its own self-interest, power, advantage, etc.  Also, from a preventive perspective, I find many clients end up with costly litigation or other legal problems simply because they signed documents, or agreed to inequitable terms or circumstances, or failed to object to situations, on the notion that they did not want the other side to get mad, or they assumed the other side was being fair and equitable, etc.

Finally, the more-balanced conclusion Scarlett expresses above, in my view, will add to her longer-term happiness and response to life, even though she has to dismiss the fairy-tale notion of a kumbaya world. A more realistic, and balanced, acceptance of both the good and bad elements of life is akin to the comfort of knowing you have on your seatbelt.  Realistically take into account the worst, but hope for the best.

Subpoenas and the Executive Branch

Back in 2016, I wrote a blog post, captioned “Deju Vu. The 1974 NIXON Subpoena”;  Click here for my earlier post. This post today is merely to restate one of the most interesting, unanswered constitutional law questions that has remained in the forefront of my mind all these years after my earlier days at Emory Law School.

This is not a political blog post, but it does center on how a President can, or might, respond to subpoenas.  Here is this question’s relationship to the 1974 Nixon subpoena.

In short, in 1974 special prosecutor Leon Jaworski, while conducting the Nixon Watergate investigation, obtained a subpoena ordering President Nixon to release certain tapes and papers as to meetings between Nixon and others who had been indicted by a grand jury. Nixon refused. The US Supreme Court, in a unanimous opinion, concluded Nixon could not rely on executive privilege as immunity from complying with the subpoena. The Supreme Court ordered Nixon to turn over the tapes in response to the subpoena. Nixon ultimately agreed to comply with the subpoena.

Here is the constitutional question we discussed (and that hooked me all these years) in my constitutional law school class in response to the Nixon Supreme Court opinion. That is, how would Jaworski’s subpoena have been enforced if Nixon had snubbed the Supreme Court and taken the position he did not have to comply with the subpoena?

Because Nixon’s own executive branch was (and is) the only enforcement branch of government, what would have happened if Nixon did not allow his executive branch to enforce the subpoena? Remember, the judicial and legislative branches have no enforcement capability. Also, you and I would likely be jailed quickly by the executive branch for our failure to comply with a court order.  [Nixon ended up voluntarily complying with the subpoena, without anyone having to deal with its enforcement.]

So, would the military have stepped in to enforce the Nixon subpoena?  Would we have seen military tanks in front of the White House?  Would there be an attempted coup? Would there be vigilante enforcement, etc.? We simply have no answer.

The point of this blog post is to remind each of us of, and elevate, the sanctity and design of our US three-branch system of government. In my view, especially as a lawyer, this three-branch system is the only reason we have been able to maintain our breadth of freedoms and rights against the historical backdrop of disputes, crises, disagreements, differing political and social views, and so forth.

The crucial question, at present, of another potential subpoena stand-off should not focus only on the substance or information of what the subpoena is seeking, but rather on how does the subpoena and its compliance fit with the need of continuing the essential and crucial balance of our three-system government? My imponderable constitutional question still remains unanswered and untested. Let’s keep it that way.

 

Whoops. The No-Contest Clause Backfired!

This blog post is in response to a recent April 2019 California case dealing with disgruntled siblings and an “in terrorem” (or no-contest) clause in their late mother’s revocable trust document.  I use the California case to make the following broader comments for this blog post and tie my comments to a Georgia point.

An in terrorem clause (no-contest clause) in a Will or trust document is to prevent beneficiaries from raising issues as to the Will or trust in order, in most cases, to try and increase their share. The provisions under Georgia law for no-contest clauses are under O.C.G.A. Section 53-4-68 (for Wills) and Section 53-12-22 (for trusts).

An example of a no-contest clause in a Will is:

“If any beneficiary, alone or along with any other person or persons, directly or indirectly, contests or initiates proceedings to contest this Will in any court with a challenge to its validity of all or any part of my Will or in any manner, attacks or seeks to impair or invalidate any of the provisions of my Will or prevent any provision of my Will from being carried out in accordance with its terms, that contesting beneficiary shall be deemed to have predeceased me and as a result shall forfeit his or her interest under this Will in its entirety with his or her forfeited share passing to my other children, per stripes, as though the contesting beneficiary and his or her descendants all predeceased me.”

This blog post is not for the purpose of an extensive discussion about the design and use of a no-contest clause.  But, rather, it helps illustrate that no-contest clauses are not just simply boilerplate provisions that one can, or should, without careful thought merely cut-and-paste into a Will or trust.

Below are a couple broader comments as to no-contest clauses:

I start with reference to a recent 2019 California court opinion dealing with a no-contest clause. This case has an extremely interesting and surprising twist that one of the litigious sisters likely never expected, to her detriment. This case is Key v. Tyler, 2019 Cal. App. LEXIS 358 (April 19, 2019).  Click here for a copy.  The core facts are that three adult sisters are beneficiaries of their deceased parents’ 1999 family trust.  The family trust essentially provides for an equal split among the three sisters after their parents’ deaths. As of January 2006, the family trust was worth over $72 million.  Lawyer-sister Tyler was the trustee.

A 2007 amendment to the 1999 family trust surfaced after the mother’s 2011 death (the mother was the second parent to die). After their mother’s death, sister Key asserted that her lawyer-sister Tyler had unduly influenced their mother in 2007 to amend the 1999 family trust. The 2007 trust amendment was apparently orchestrated by Tyler and resulted in Tyler increasing her own trust share substantially in excess of her other two sisters (including Key). The 1999 family trust and 2007 amendment each included a no-contest clause.

Sister Key, after the mother’s death, filed a California court action and asserted the 2007 trust amendment was the result of undue influence over their mother by lawyer-sister Tyler . The California court agreed with sister Key, with the result that the 2007 trust amendment was essentially disregarded. Although this California opinion is rich with an abundance of procedural details, factors, concepts, and other elements in this sister- v.-sister litigation, I make only the following three comments stemming from this California case (my knowledge of the facts in this case are based solely on information in the court opinion):

One. This point centers on the 1999 family trust and the 2007 trust amendment, each having a no-contest clause.  One might reasonably ask:  With the trust document having a no-contest clause, how was sister Key (the non-lawyer sister) able to attack the 2007 trust amendment, without triggering the clause against herself (Key)?

The reason is that California law, as with some other states (but not Georgia), has an exception to the challenge to a Will or trust with a no-contest clause, if the person making the challenge can show probable cause at the time of filing the challenge, such as probable cause of undue influence, or mental incapacity, etc.

In other words, without probable cause a person cannot simply file a challenge to a no-contest clause Will or trust and hope during the discovery phase of the litigation to luck-up or stumble across evidence of undue influence, or mental incapacity, etc.  Probable cause up front reduces fishing-game litigation. Absent probable cause, the person making the challenge to the Will or trust also risks losing, with the result of being penalized by the no-contest clause.

Two. This next move in this litigation by sister Key is what greatly sparked my interest in this California case.  Here it is:  After sister Key successfully challenged and obtained the set-aside of their mother’s 2007 trust amendment, Key then filed a petition to enforce — against her lawyer-sister Tyler — the no-contest clause as to the 1999 family trust. This is the backfire.

Here the reader might say “Wait a minute, it was sister Key who challenged the 2007 trust amendment.  Lawyer-sister Tyler never asserted any challenge.  So, why now is lawyer-sister Tyler facing loss of her inheritance based on her (Tyler’s) violation of the no-contest clause? “

There are two primary reasons.  First, the California court concluded sister Key had sufficient probable cause of undue influence to file her challenge to the 2007 amendment, even with the no-contest clause.  The probable cause exception under California law provided an exception for Key to the trust amendment’s no-contest clause.  Second, and this is the part of the California court opinion that really grabs my interest.  The court, in concluding sister Key can seek to enforce the no-contest clause against Tyler, states:

“By [lawyer-sister] Tyler obtaining the 2007 Amendment through undue influence and then defending that amendment in court, Tyler sought to ‘impair’ and ‘invalidate’ the provisions of the original Trust that the 2007 Amendment purported to replace.  The No-Contest Clause therefore disinherits Tyler if it is enforceable against her.”

2019 Cal. App. LEXIS, *29.

I assume lawyer-sister Tyler was completely blindsided by now finding herself the subject of a possible no-contest clause violation, and never for a moment considered that her court fight as trustee to defend and uphold the 2007 trust amendment would (or could) be the basis of Tyler herself violating the no-contest clause. Tyler now stands to lose her share of the trust if the court ultimately concludes Tyler violated the no-contest clause [the court has not yet arrived at a conclusion].

Three. This final point ties my Georgia discussion to the above California case. Georgia does not have a probable cause exception that allows a beneficiary with probable cause to challenge a no-contest clause Will or trust. My view is that Georgia (and all other states) needs a probable cause exception.  This is up to the legislature.

Here also is my concern, merely as an example, of there being no probable cause exception in Georgia.  Assume a family friend, business associate, or even a lawyer, becomes a close friend of an elderly widow or widower.  And that person persuades the elderly person to change his or her Will to include him or her as a substantial beneficiary (or gets the elderly person to add his or her church or other charitable institution as a substantial beneficiary). Assume also that person persuades the elderly person to include a strong, no-contest clause in their Will or trust.

This could be a tragedy and, in my view, would prevent another beneficiary or family member from challenging a Will or trust that now benefits the family friend, business associate, or lawyer, even if the challenging beneficiary has probable cause. The person influencing the elderly person, therefore, shields himself or herself by influencing the person to include the no-contest clause.

My final general point is to make sure you know what documents your elderly parents have in place, and whether they are making changes, influenced by others, etc. Don’t end up with no options to challenge their situation where someone influences your parents to include him or her in the Will or trust, and also influences your parents to include a strong no-contest clause.  This person may likely end up with your inheritance,  unscathed.

One last comment for readers who wish to read the attached California court opinion.  That is, the court opinion provides a great deal of discussion about this California sister case being a SLAPP case [“Strategic Litigation Against Public Participation”]. SLAPP is essentially a procedural speed-up option available for certain litigation cases, that I also find is an extremely interesting, evolving court development.  I will write a blog post soon about what SLAPP is and why I find it a compelling and positive development in litigation.  [California has a much broader range of SLAPP options compared to Georgia.]

RE-POST: “In 48 Hours, I Had to Practice What I Preach”

My July 2008 blog still ranks as the most popular of all my blog posts (in terms of responses from readers and the blog click data, etc.). My 2008 blog post was in response to my personal situation at that time where a preliminary medical diagnosis – fortunately – was wrong.  But, at the urgent time I thought I could possibly die in a couple days.  I also had two children under age 10 at that time. Thus, my title of the July 2008 blog was: “In 48 Hours, I Had to Practice What I Preach”.

I am re-posting below my earlier 2008 blog, in its entirety.  The post includes ten related take-away “lesson” references. Also, as an important aside, as we and our parents, etc., all get older, the Thomas Mann excerpt in the post below from his novel The Magic Mountain remains one of the most comforting and satisfying responses to life and aging that I have found.

Here is my July 2008 post:

“Many of us in the service industry are like the proverbial cobbler (yes, including lawyers): we provide shoes with the best fit and finish for our clients, but we leave ourselves and our families poorly shod, or worse yet, barefoot.

This is an unusually personal newsletter about a recent 48-hour period in my life; it began with the complete blindside of a Friday night hospital ER diagnosis (tentatively very chilling) and a much more optimistic Monday morning follow-up.  During this long 48-hour period, my wife and I were suspended within vast uncertainty.

At that time, we believed the 48 hour-period could potentially have been my last chance to get my affairs in order. The situation caught us completely off-guard, with many loose ends in my own personal “I’ll-get-to-it-later” family matters.

I now am back in full swing and the 48-hour period is behind me; my sense of urgency no longer exists. This 48-hour period, however, strongly impressed upon me the need to stop procrastinating and get my own family affairs in order.

Although we lawyers like to believe we are the unshakeable rock of Gibraltar for our clients, I was in near-panic during this 48-hour period as I organized various topics and notes of final instructions for my life. This, quite frankly, was due to a level of worry and concern over my unfinished family business that I hope never to experience again, especially when facing my own mortality.

I share the following relevant aspects of my recent experience so as to motivate you, if you are by chance a procrastinator, to avoid a similar 48-hour surprise, or in the worst case, a situation with zero lead time.

Your Current Estate Planning Documents are Your Final Versions

As a trust and estate lawyer, I experienced briefly during the 48 hours an imagined level of after-death embarrassment; embarrassment that my wife might end up with problematic documents.  Even though I insist on updated estate planning documents for my clients, my personal estate planning documents were much more out-of-date than they should be.

Lesson No. 1 — The 48-hour period made me experience first-hand the reality of a completely unexpected event, that can effectively freeze the status of whatever estate planning documents we have in place — or fail to have in place.

No Guardian Designation for My Children

During the 48-hour period, my wife and I also discovered we did not have the updated guardian provisions that we desired for our children. This omission could potentially have been much worse than that kitchen faucet I kept promising to replace but never got around to.

Insurance Records

The permanent and term life insurance I have on my life for my family’s benefit includes certain options to allow additional payments beyond my normal premium amount without additional insurability underwriting (thus, a related increase in death benefits at my original preferred premium rate), a conversion option to a universal policy, a disability waiver if I am disabled, and the ability to extend the coverage beyond the guaranteed term.

Lesson No. 2 — I have all these excellent insurance policy options, but had failed to inform my wife about them and about the circumstances where she and my children could benefit from triggering the various options.

During the 48-hour period, I made sure my wife had the name and phone number of our insurance advisor, and made her promise that she would rely on our advisor‘s advice for assistance with our insurance situation, if needed.

Internet Access Information

The simplicity of this next point belies its importance.  My wife and I both handle a great deal of our affairs by internet. I really had to scurry around during the 48 hours to provide my wife with all of my known internet accounts: all access passwords, and other relevant information about automatic bill-pay schedules, etc.

Lesson No. 3 — My wife’s potential ability to step in and seamlessly handle all of my online business matters (banking, internet bill-pay, renewals, etc.) would have been seriously hampered, if not impossible, without the knowledge of what family business I handle over the internet, the corresponding URLs and, most importantly, the passwords.  I now keep this data in a safe place for my wife’s access, if ever necessary.

As an aside, to my wife’s credit she handles the bulk of our family bill-paying, banking, insurance, and so forth.  She is much less the procrastinator than I (but come to think of it, I don’t know where she goes online, nor what her passwords are).

Lesson No. 4 — Find out about your family’s internet business access.

Social Security Benefit Information

From a bundle of non-specific files, I dug up a copy of my latest annual Social Security earnings statement in order to remind my wife that she and my children would be entitled to survivor benefits.

Lesson No. 5 — The Social Security Administration can provide you with an annual statement of your earnings history and the projected benefits your survivors will receive.

Read the earnings statement carefully and make sure the annual earnings information is correct, as federal law applies a 3-year statute of limitations for making corrections.

Misc. Loose Ends

This seems humorous now that I am out of harm’s way, but during the 48 hours I also noted various important items for my wife’s attention, such as making sure the air filters in our furnaces are replaced every two months; making sure the homeowners and property tax payments are made on time for our small cabin in rural NC;  and making sure our annual LLC registrations are current (that I had been handling by internet).

Lesson No. 6 — Jot down this small-but-still-important stuff.

Names of Our Team Members

In the past my wife and I alone handled virtually all of our family legal and business affairs. Over the years, however, I have become smarter on this point and put into practice the benefit of having a quality team of advisors who are available to assist my family in my absence (such as for tax return preparation, investments, insurance, etc.).

Lesson No. 7 — I made sure my wife had the names and contact information for all the members of our  team.

Last But Not Least: the Name of a Good Lawyer

This next point, due to my ability over the years to be my own family’s lawyer for most matters, was a very important discussion with my wife during the 48-hour period.

Lesson No. 8 — The variation in lawyers’ judgment and expertise is as wide-ranging as is human nature; lawyers are not fungible.  I wanted to make sure my wife would have a successor lawyer in whom she has complete confidence and can feel comfortable asking questions or seeking assistance.  Because my situation is now back to normal, I can keep this name filed-away in with my personal records (to which my wife now has access).

No More Ill-Fitting Shoes

I now have made great progress in mending my cobbler ways and providing my family with the best shoes possible (figuratively speaking), sooner rather than later.  I never want to experience this 48-hour scramble again in such ill-fitted shoes.

Finally, a Comforting Consolation

Until this 48-hour incident I had not been in a hospital since my teenage years for wisdom teeth removal; I had virtually no first-hand experience with illness and hospitals.

Lesson No. 9 — Even though the 48-hour period was difficult due to my lack of preparedness for the above matters, I found my mind and spirit both adapted well – much better than I expected — to this emergency medical experience.

This adaptation is a surprising consolation and, I believe fortunately, is the way our minds self-protect us in these moments of unexpected urgency. This positive note reminds me of the following passage from Thomas Mann’s novel The Magic Mountain, that goes to the heart of this consolation:

The pity the well person felt for the sick – a pity that almost amounted to awe, because the well person could not imagine how he himself could possibly bear such suffering – was very greatly exaggerated. The sick person had no real right to it. It was, in fact, the result of an error in thinking, a sort of hallucination; in that the well man attributed to the sick his own emotional equipment, and imagined that the sick man was, as it were, a well man who had to bear the agonies of his state. Illness so adjusted its man that it and he could come to terms; there were sensory appeasements, short circuits, a merciful narcosis; nature came to the rescue with measures of spiritual and moral adaptation and relief, which the sound person  .   .   .  failed to take into account.

Excerpt  from  Thomas  Mann, The Magic Mountain 466-67 (H. T. Lowe-Porter, trans., The Modern Library Edition 1992)(1927).

Lesson No. 10 —  This is an important point.  Sufficient advance planning can help us more easily not have to contemplate or worry as much about the future. We have the future covered, so to speak. And, with the future covered, we can enjoy our lives, family, work, hobbies, much more freely in a relaxed, present state of mind.

Thank you for your indulgence.  And, finally, thank you for allowing me to share my personal experience.  I hope it might be of value to you.”

 

2018 Father’s Day; WWII; 1942; Courage

I assume it is universal that every son who is now a father contemplates what he both learned and did not learn from his own father, and what he (the son) will pass on to his children. This post is for my two daughters (I have no son).

My late father, while in 1942 a law partner with the then-Atlanta law firm Sutherland, Tuttle & Brennan, was drafted to serve in WWII. Shortly after his induction into Ft. Bragg (N.C.) boot camp, my father received the officer’s commission he had sought prior to his induction; but, he decidedly and purposely turned down the commission.

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The image above is the 1942 letter from my father’s then-law partner Bill Sutherland to the Army Signal Corps passing along my father’s non-acceptance of the commission   

My father later told me and my brothers that while at Ft. Bragg he concluded it was inequitable that he could avoid the hardship of WWII simply because he was a lawyer and entitled to the safehaven of a stateside lawyer-officer position.

He remained in the U.S. Army 78th infantry division and rose among the non-commissioned ranks to a captain in his field artillery battalion. His 78th infantry division was among the first allied divisions to cross east into Germany over the Rhine River. He received a Bronze Star and Purple Heart. My father in 1946 returned to Atlanta and practiced law for the remainder of his career.

My father rarely spoke of his war days; however, relevant to my post today, he did mention a 1945 Germany battlefield incident in which the commanding officer began to “run scared” and who informed his group of soldiers (including my father who was a Lieutenant at the time) that they needed to surrender. My father had the officer restrained and commanded the soldiers to a successful standoff. No surrender.

In a journal he maintained for several years after his return from WWII, my father in 1950 wrote:

“Aggressiveness! Somehow I feel that the great problem [in life] centers around aggressiveness. To start with we were animals and had to fight for survival. And we may still have to fight – – that is I don’t mind so much as if it is a fight for life or death. But not this petty pushing, this daily gnawing uneasiness lest someone pass us on the road [etc.]  .   .   . In the Army I should have known better than ever to push or fret about little things like a wait in line for chow, but I should have been ready – – as I was – – to take [I delete this name purposely for this blog post] place with the infantry when the chips were down.   .   .   .”

 

I use the above example for this Father’s Day post as an illustration of what, I conclude, was the most important characteristic my father sought to pass along to me and my brothers. That is, courage. And, not just simple courage such as if scared in the dark, etc.

But more specifically, the courage to accept where the chips ultimately fall, as to work, family, money, health, what others may think about you, etc. This also is not merely stoic, passive courage.

Rather, it means responding as honestly, directly, aggressively, and as fully as may be warranted in a situation. But, without fretting or over-worrying about the resulting outcome. Accept with courage that the chips will fall where they fall, with each of us possessing the strength and capacity to handle and deal with whatever that outcome produces. Good or bad.

Happy Father’s Day to each of you.

The Rule of Law; Your Elder Years.

The title to this post is partially a teaser.  My post ultimately centers below on the horrible abuse of some court-imposed guardianships / conservatorships, as a chilling reminder of how everyone should avoid getting into this court-oversight snare. Adequate trust and estate planning — purposely designed to avoid a guardianship / conservatorship  — is imperative.

My concern — as a lawyer — about the above snare also appropriately fuels my persistent opposition to those who narrowly overemphasize application of the “rule of law” doctrine, to the exclusion of equitable and other balancing considerations.

Merriam-Webster defines rule of law as “a situation in which the laws of a country are obeyed by everyone”.

Legal, political, social media, etc., often in my view, overplay the rule of law doctrine.  With sanctimonious rhetoric, the loudest adherents preach that we are a nation of laws, and those laws — under the rule of law — must be strictly applied to and followed invariably by each of us.

My recommendation is that you take a few moments and read this October 9, 2017 The New Yorker magazine chronicle, captioned “How the Elderly Lost Their Rights”.  It is about the abuse of certain court-imposed guardianships and conservatorships.  Even with the durability of my many years of lawyering, I found this piece frightening and symbolic of a great threat to each of us and our families.  Click here for the link to this piece.

Read this The New Yorker piece, and then ask yourself how you feel about the rule of law.  As we all age, the next rule of law victim might be one of us.

Also, I am not suggesting in any manner we abandon the rule of law.  It is a crucial element for society, and so forth;  but, as with any area of law, I firmly believe all laws should be subjected to constant challenge and refinement for our collective good.  Blind faith as to any law poses a threat to each of us.

 

What a Great Line

I am currently reading the novel A Thousand Acres (1991), by Jane Smiley.  This is essentially a modern-day version of Shakespeare’s King Lear involving a father’s disinheritance of a daughter from the family farm (a 1,000 acre farm) and the destructive effects of deeply rooted, and long denied, family issues. This novel also is a powerful depiction of estate planning discord. [There are certain tragic elements in the novel that I fortunately do not see often in estate disputes.]

One line in this novel notably jumped out at me the other evening.  It refers to one of the farmer-neighbors named Harold who, often to the humorous and bemused talk of the other neighbors, marches to the beat of his own drummer, but who also is one of the most successful farmers in the community:

Here is the line referring to Harold:

It’s just that he’s [Harold] cannier and smarter than he lets on, and in the slippage between what he looks like and what he is, there’s a lot of freedom.

This line is powerful.  In contrast to Harold, many people are much too concerned about what others think about them. These people stifle their own freedom.

A tie between the above line and this blog post is that my great joy in lawyering is helping clients respond to the currents of life from a position of strength, power, and independence. Independence particularly in terms of having control over their lives, including preventing legal issues, disputes, litigation, not bowing easily to the expectations or judgment of others, and avoiding the time- and emotionally-draining interference and overreach by others.

In one of my earlier blog posts, captioned “Helping Clients Have Power;  Blog Post 2 of 3” (click here for this earlier post), I referred to two of the saddest characters in literature: Willy Loman in the play Death of a Salesman (Arthur Miller) and George Babbitt in the novel Babbitt (Sinclair Lewis). Each of these characters demonstrates so powerfully the sad, unhappy mistake of maintaining such a persistent, engulfing concern about what others think about them. The complete antithesis of power.

Finally, one ancillary legal point.  Liberty is the environment that (fortunately) allows us to be free;  Actually exercising our freedom in the above context is our own responsibility.

A Belated Fathers’ Day Post to Lawyers Who Are Fathers

My wife and kids are out of town for the summer, which has given me a great deal of time alone with our two dogs to ponder the ideas leading up to this belated Fathers’ Day post. This post is directed primarily to fathers who are lawyers. But, it has universal application for all fathers.

This is a philosophical post. And, I realize it may not be of interest to some readers; if so, simply stop reading here. Another reason for this post is that I am purposely adding it digitally to the perpetual web for my wife and kids, for their access now and later.

Here is the point of this blog. Lawyers are called upon to be the Rock of Gibraltar for handling important matters that affect clients’ lives and well-being. Lawyers are often the last resort with a responsibility that allows the buck to pass to no one else. The responsibility lies fully with the lawyer. Success or failure.

A lawyer when called upon to act or protect the interests of his or her clients cannot take on that important responsibility with an “I can’t”, “yes-man”, doubtful, or weak mindset. The lawyer – in the midst of the uncertainty with any disputed issue — must stand firm and resolute, reacting to the inevitable ebb and flow of the task that includes at times hope, doubt, praise, criticism, wins, losses, elation, disappointment, diversions and fatigue.

Here is my belated Father’s Day point:

My guess is that most lawyers (including me) pass along to their children the notion of being at all times strong, at all times resolute, at all times independent, at all times possessing a strength of mind and presence to handle any situation. All beneficial characteristics that can enable a child to chart life as he or she so chooses for any situation, no matter how difficult.

But, this heavy emphasis on strength and self-reliance also carries with it a strongly unspoken denial of our children’s feelings and emotions. Ask the children or spouse of a lawyer if my above summary is off point. My guess is it accurately fits most lawyers (both mothers and fathers who are lawyers).

On the flip side, which is an epiphany for me during this summer solitude, is what we lawyers fail to give our children.

That is, blinded by wanting our children to possess lawyer-like strength and fortitude, we lawyers do not allow our children to experience more fully their own development and metabolism of how to deal with their vulnerabilities.

We effectively thwart and constrict our children’s emotional bandwidth in response to how they otherwise can (and will) evolve when faced with struggles, disappointment, emotional-pain, periodic feelings of weakness, doubt, etc. Merely expecting our children to act like junior-lawyers in response to life and their circumstances is a kind of parental fundamentalism. Not much different than parents who believe religious fundamentalism gives their children an upper edge.

So, fathers; by all means continue to help your children develop strength and fortitude. These are gifts you are giving them. However, the change I recommend (that applies to me as a father) also is to allow room for your children to experience and develop their own response to the vast array of feelings and emotions that life presents. Against the backdrop of strength and fortitude, do not expect or require a sobriety of emotion for your children.

To Your Lawyer: “Would You Buy Your Own Legal Services?”

The theme of this post is for the legal services consumer simply to ask his or her lawyer the following question: “Would you buy your own legal services from your law firm, and why?”  And, I am not suggesting there cannot be a suitable, good reply to this question. I am saying the question helps consumers consider relevant factors in assessing legal services, including my recommendations below.

Among my persistent attempts to try and compel clients to consider preventive legal and tax planning to avoid down-the-road costly disputes and legal fees, I harp on the point that a legal services consumer faces the following economic conundrum when obtaining legal services, whether preventive or litigation, etc.:

  • There is realistically no way the consumer can gauge the quality of the legal services he or she receives; and

  • Without being able to assess the quality, the consumer has no idea of what the market cost is (or should be) for the legal services.

Considering the above two factors, and because law firms typically measure lawyer performance primarily on a lawyer’s billable hours, the consumer absolutely must keep a close eye on the efficiency of how his or her lawyer provides legal services.

Among the factors you, as a client, can consider are:

(1) Does your lawyer care about your situation or case? This might sound trite, but I believe most clients are able to perceive this important factor.  In other words, you do not want to be merely a cog in the wheel of your lawyer’s busy workload.

(2) Does your lawyer push down most of the work to lower level members of the law firm? This arises when your invoice shows 3 or 4 (or more) different billing lawyers, and in most cases newer lawyers, who are charging time to your file. Essentially, you are helping pay to train these other lawyers.

There is no doubt that some work can be handled well by newer lawyers in the firm; but keep an eye on whether these other lawyers are predominantly on the steep side of the learning curve. Require a balance by limiting this push-down approach. Let someone else pay the bulk of their training. Don’t just leave this factor open-ended.

Accordingly, and especially during the what-if, strategic, and developmental stage of your legal work, ask your lawyer to handle the bulk of your work himself or herself, without merely passing it down to a multitude of lesser-experienced lawyers. The judgment and experience of a more seasoned lawyer provide the greater value for legal services, compared merely to the lower hourly-rates of newer lawyers.

(3) Does your lawyer bring other lawyers to his or her meetings and telephone conferences, essentially as the note takers? How many meetings have you attended where the note-taking lawyers essentially say or contribute nothing during the meeting? Discuss this set-up with your lawyer and ask if (and why) this is necessary for your situation.

(4) Does your lawyer use email and other modern digital technology to enhance his or her efficiency? This may possibly reflect where your lawyer falls on the scale of creative openness to change and progressive ideas. [Some lawyers still refuse to use email and have their assistants print hard copies of their emails.]

(5) Do you get trailing U.S. mail hard copies of letters and memos from your lawyer 2 or 3 days after the matter has already been addressed or completed with earlier emails, phone calls, etc.? Tell your lawyer you do not need these hard-copy mailings to the extent of the related additional time charge and expense.

(6) Ask your lawyer, as part of his or her work, to provide you with short, bulleted, talking-point emails, letters, and memos. This suggestion goes to how much of your invoice reflects the time-consuming, law-review mentality among most lawyers (including me).

That is, by our nature and competitive law school training, we lawyers prefer that every single communication we provide to clients (and to anyone) be law-review perfect.  An A+ grade product.  This A+ approach is, no doubt, a necessary and essential goal for final court papers, briefs, legal documents, contracts, trusts, etc. And, a lawyer’s mindset and thought-process at all times must be at an A+ quality level.

But, for every email, memo, or draft document, if your lawyer clocks you for final, law-review perfection you will end up with a much larger legal bill than necessary.  Tell your lawyer on the front end: “For letters, emails, memos, etc., give me only a rough outline of ideas first and we can discuss them as we progress along, etc.” Then, as necessary, your lawyer can polish to law-review perfection the final communications or other documents. This recommendation goes directly to the time-efficiency and cost-effectiveness of your legal services.

(7) Finally, my late father was a lawyer. I am a lawyer. The point here is that most lawyers handle the bulk of their own legal needs.  Few lawyers (including me) face — as a consumer — the burden of paying a legal invoice. Lawyers can, however, be empathic and place themselves in the clients’ shoes so as to help better address how a client more effectively can obtain legal services.