f/k/a archives . . . real opinions & real haiku

December 20, 2005

clients who ruin christmas (and lawyers who let them)

Filed under: pre-06-2006 — David Giacalone @ 1:55 pm

A week ago, Slate‘s Dahlia Lithwick started a contest looking for tales 

of “the meanest thing you’ve ever done to an opponent on the holidays”

or other “stories of hideous pre-holiday lawyer shenanigans.”  (Slate,

Billable Horrors,” Dec. 13, 2005).  Naturally, Walter Olson used Dahlia’s

lark as an occasion to seriously condemn such malicious mischief (without

offering solutions) (Grinch, Esq) and Prof. Bainbridge fretted that he might

actually have to show up for Jury Duty this week — delaying his consumption

of duckling and vinous liquids. 

tiny check Before I get to my main points, please let me do a

bit of (nit)picking on Steve.  Writing on Monday, Dec. 19, Prof.

Bainbridge says “And I can’t help but think that nobody’s

really going to start a trial this late in the week before

Christmas.”  That makes me wonder just how much of

a buffer Prof. B. thinks is appropriate around the Holiday-

Christmas celebration?  As an academic, Steve has ap-

parently lost touch with the vast majority of his profession

— not to mention the rest of the population — who need to

be on call should their clients or bosses need them during

what teachers must think of as “off-peak” and inviolable hours

and weeks.


In addition, I can already hear Steve’s  complaints over     courthouseN

California taxes being wasted with empty court buildings the

weeks before and after Christmas, were it not his duckling get-

ting cold.   For most of us, many issues depend on whose oxen

are being gored, but Prof. B is — god bless him — more willing

than most of us to reveal his myopia on his website. (On the

other hand, you can’t say he has no sense of humor.)

In my many years serving as a Law Guardian — a lawyer appointed

to represent a child in NYS, usually in Family Court — I often had to

deal with Christmas Season visitation issues.   This was among the

topics most dreaded by the court and court staff.   As much as I

knock divorce lawyers, I can’t say that I’ve ever seen one who was

the instigator of such battles, but I can definitely say that many of

them made things much worse by going along with or feeding the

anger or paranoia of their clients. 




By their nature, Christmas and Christmas Eve and Christmas

Vacation issues often arise just before Christmas — often because

one estranged parent has unilaterally declared that he or she would

not follow their court-ordered arrangements, or wasn’t going to bring

the child(ren) back on schedule, or was leaving on vacation with them.

At that point, if a parent contacted me, as the Law Guardian, I would

attempt to “mediate” a solution that focused on the child’s welfare. 

That was often possible, when the parents were appearing pro se, but

at times the lawyers would get in the way of a resolution — usually

because they needed to show they were the client’s protector (which

just happened to run up a few billable hours).  At times, they threatened  

me with ethical sanctions for talking to their clients out of their presence

(a bogus threat in the context of Law Guardians, in my opinion, and a

risk I willingly took in hundreds of instances — at $25 per hour!).

tiny check One older lawyer, a former Family Court judge, made

such a threat, when I called to ask him to telephone

his client to calm her down and get her to follow the

Court order.  He screamed so loudly at me that I

said “call me back when you can hold a civilized

conversation” and I hung up.  He never called back.

He didn’t want to call his client, because she was

a factory worker who had a hard time paying his fees.


phone old  In the end, I got the couple to stick to the con-

sent order,  where one parent had the one-year-old child

Christmas Eve overnight and the other all day on Christ-

mas (with the roles switched the next year).

Earlier this year, f/k/a had a post discussing Valedictorian Litigation, 

(counsellor or mercenary?), in which I had the following reaction

to John Steele’s sayingisn’t this another case where people were

out of control before they called for lawyers?

I’d like to add these excerpts to my WISTful quotation —

Wish I Said That — collection .  They’re by Sol Linowitz  

(from DCBA Briefs, Betrayed Profession, June 1999):   

“Elihu Root . . . put the matter more simply: ‘About

half the practice of a decent lawyer,’ he once said,

‘consists in telling would-be clients that they are

damned fools and should stop.’


“Today there are too few lawyers who see it as

part of their function to tell clients (especially new

clients) that they are damned fools and should stop:

Any such statement would interfere with the marketing

program. The public pays, because the rule of law is




Later in the same chapter, titled “Living the Law,” Linowitz  


“The doctrine that professionalism means respect for

the client’s ‘autonomy’ and commands doing whatever

the client wants is, after all, most convenient. Nobody

ever lost a client by doing exactly what the fellow wanted,

but much lucrative legal work has been sacrificed by lawyers

who regretfully told prospective clients that this was some-

thing they were not willing to do.”

Thanks again, Lawyer Linowitz.

Many lawyers do try to serve that role as counsellor — especially when they

don’t want to upset their own Holiday plans.  As Law Guardian (and as a

divorce mediator), I often got to see just how unreasonable clients could be

— and I could also see how anger and distrust fed on itself.   My best story

of a “client” trying to ruin my Christmas goes like this:


                                                                                   snow pile

Before 8 AM the day after Christmas, the non- 

custodial Father of an 8-year-old called me at

my home-office saying that as Law Guardian

I had a duty to go get his daughter and bring

her to him.   He explained that he called the

Mother’s home that morning and was told the

child was not there.   I pointed out to him that

(1) we had two feet of snow overnight and there

was a snow emergency, with no driving allowed;

and (2) the Mother lived at the top of the highest

hill in town.


snowFlakeS “SnowFlakeS”


The Father continued angrily to insist that I

had a duty to make his visitation happen.  As

he babbled, I learned two more things: (1) the

girl was with her stepfather at a hospital,

because (2) her Mother went into labor over-

night and had delivered a baby that morning.

None of these facts seemed to help the Father

— an otherwise bright man — see just how

silly he was being.  I told him I’d call him in

a day or so to see what I could arrange, and

I requested that he not call my home before

9 AM ever again.  Because the Court was

virtually closed — for all but child abuse and

domestic violence cases — that week after

Christmas, I was relieved that the Father

would not be filing any violation petition that


Sometimes, going to court around Christmas cannot be

avoided.   Many courts have figured out ways to protect

themselves from Holiday shenanigans.   Lawyers acting

as true counsellors — telling their clients when they are

being unreasonable or acting crazy — is often the best

safeguard.   Until both clients and lawyers are perfect,

there will be new Holiday Horror Stories for Walter to

write about and Steve to fear.


from Mom’s to Dad’s

the clickity-clack

of suitcase wheels


       from New Resonance 3





waiting room–

the ex-wife

looks past me








custody hearing

seeing his arms cross

i uncross mine



         A New Resonance 2:; pocket change



my toddler

helps pack her travel bag —










piano practice

our scowling child plays

Ode to Joy


    Tom Painting    

        from his haiku chapbook piano practice 





Christmas Day

  the exchange

    of custody



     John Stevenson 

         from Some of the Silence


                                                              snowFlakeS    “wolf Dude negF”



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