Sunday, June 20, 2010

Mistress Sued - Wife Gets 9 Million Dollars

Cynthia Shackelford's nine million dollar marriage and the Alienation of Affections Debate

continued from September 2009
Cynthia Shackelford, the last big winner of the alienation of affections lottery, has stirred it up once again. One of the favorite pastimes of the North Carolinians -- the Alienation of Affections Debate. Should the law be abolished? Or should every state have it?

The proponents of alienation of affections law typically scream “protect the children,” sue the mistress. They never demystify quite how dragging the man’s mistress in the mud and slapping her with a multi-million-dollar verdict helps his children.

Proponents of the law also believe that alienation of affections law “sends a message” and “home wreckers stay away.” I do not know if anybody ever figured out if home-wreckers do get the message. Are there fewer home-wreckers in North Carolina, where the law is still well than, say, in New York, where the law is abolished? Has anybody sent a SurveyMonkey question around the state of North Carolina, asking: “If it were not for the alienation of affections law, would you be more likely to sleep with your married boss? Please mark only one of the following boxes: “agree completely,” “agree somewhat,” “disagree completely,” or “what law? I have been screwing the boss for the past ten years. Now you telling me there’s a law?!” I do not actually know if there is a statistical study, but I do know that all my friends who wanted to raise families, moved to Charlotte, and all my friends who wanted to raise hell are still in New York -- so there may be some adverse selection here. And it has nothing to do with the legal system -- it is all about the nightlife in Soho versus the nightlife in Ballentine.

Shackelford’s victory also stirred up the opposition, which generally shouts that “the law is immoral” and “needs to me removed.” Rosen, one of the most vocal (and generally sensible) divorce commentators in the state, was quoted years ago, saying that “the law just polarizes everyone and devastates everything in its path including the children and both spouses.” P-uh-lease. We are not talking about an unnecessary drunken debauch at a White House reception. We are talking about a law suit which typically comes up as part of a divorce action. It is not like everybody was warm, fuzzy and happy just before -- and now comes the alienation of affections lawsuit, and destroys the spirit. This people were divorcing each other. My money is, they do not like each other all that much.

Of course, the opposition also deplores the high awards issued in the alienation cases. A million or two is not uncommon if the jury does not like the paramour. That is not the sharpest argument, either. Is alienation of affections the only cause of action that ignites a jury to astronomical verdict? Of course not! The juries get carried away in every type of the case. Tobacco, Asbestus, wrongful death, personal injury, contract. You name it -- there is a suit where the jury got bothered and over-reacted. Nobody argues to abolish those causes of action.

Here’s how I see it. Some people are to blame for destroying a perfectly good marriage, which maybe would have screeched its way through a rough patch, and then lasted till death did them part. And then again, some people are doing a couple a favor by ending the union that made both spouses miserable, anyhow. And some people were just in the wrong place, at the wrong time. As any law, alienation of affections law gets misused, abused, and used for blackmail (we call it negotiations). And it gets used to punish the bad and make whole the good. It just all depends.
Copyright (c) 2010 Aylward all rights reserved

Thursday, June 17, 2010

Sex in the Park or Ode to Proper Procedure.

I read this story somewhere. Maugham maybe? An eighty-year old spinster looks under her bed every night, making sure that nobody is hiding in the dark, ready to attack her in her sleep. She has been doing this for the past sixty years, but have not lost hope. One day, she finally discovers a man hiding there!

Today I feel just like that old bird. For a decade, I have instructed clients to take the 5th, and have obtained non-prosecution letters from the DA, every time adultery was an issue. Proper procedure or waste of time and money, I wondered, doing my obligatory check for the villain under the bed. What do you know -- New York is prosecuting a woman caught having sex in the park with a gentleman friend. Turns out, she is married -- and not to the gentleman friend. It is all true -- including the reported 90 days in jail or $500 fine. If only they have thought to secure a non-prosecution letter.
Copyright (c) 2010 Aylward

Wednesday, December 30, 2009

How to hire a lawyer -- BS busting by numbers

If you do not do that sort of thing regularly,
interviewing an attorney can be one of the most frustrating, nerve-wracking and, in the end, futile experiences.

Maybe you were having a tiff with your business partner, and he sued you; maybe your wife left you with your business partner; or perhaps your son turned up in the wrong room at the wrong party, and is all of a sudden charged with possession of 200 grams of something unpronounceable but clearly nasty. Either way, you need the best, you need him quickly, and – you realize that they all look the same. Yellow pages will make you feel as though you are forking the proverbial hay stack, wondering if the needle was ever in that hay in it in the first place.
Attorneys are like barbers – the right one will open you the doors to the parties to which you were never invited. But hire the wrong one – and you will find yourself trapped, unable to show your face to the world for weeks.
But take heart. While you are sifting through that hay we can look after you. There are – for lack of a more polite word – “bullshit tests.”

“We have Experience”

Reality check: making the same mistake for twenty years, while technically, should be considered “experience” is not exactly the experience you need. Or is it?

For an average American the word “attorney” conjures an image of a white male, dressed in a suit, posing against the background of built-in bookshelves , holding a somewhat aloof expression and a book. The older and the more “experienced” the attorney, the higher the fee. Selecting counsel by counting his grey hairs has its advantages, simplicity being the most salient. There are additional advantages to retaining the oldest attorney you can afford.
First, intimidation. Especially if your opponent is unrepresented, do not underestimate the power of a grey-haired suit intoning “objection,” or “home state is here, Your Honor” or “this is in the best interests of the child,” or “You Honor, in all 41 years of my practice….” In fact, it is rare to encounter a divorce lawyer admitted to the bar for more than ten years, who will not start most motion presentations with assuring the Court that he has not seen an opponent more devious and untruthful in all his years of experience.
There is an old saying: the guy who has been changing light bulbs in Pentagon for the last twenty years does not qualify to be a Secretary of Defense. Attorney equivalents of the elderly Pentagon janitor are the ones whose sole credential is “experience.”
Whatever such Pentagon Janitor Attorney’s cognitive abilities, educational background or work habits, there is one thing you can count on. Every day for the last ten (or twenty or forty) years, the Pentagon Janitor Attorney was listening to the pertinent terminology. The less he understood it, the less he questioned it. To him, “it is in the best interests of this child to decrease my client’s support obligations” is not a statement of the law, it is a magic incantation, like “open sesame.” And incantations work more often than one expects. Make no mistake about it, an attorney of this kind may be of value to you even though he never opens your file, is unaware of the facts and incapable of understanding the law in your case.
If your case is at all complicated, however, or if you just do not like working with conceited morons, you will do well to ask what sort of experiences constituted your prospective attorney’s “twenty years of experience.” What was his educational experience? One of the top schools or a correspondence course? Law review or bottom five percent of his class? What was his employment experience? Working for a top law firm in the field or working in a shop under the neon sign “uncontested divorces -- $300?” Was he involved on complex litigation or in changing names on the pleadings. Twenty years of the latter technically is “experience,” but it may not be quite the “experience” you want. If your guy never received proper education and guidance in the first place, his “experience” might just be repeating the same mistakes for twenty years. So then – when you interview a prospective and hear that he has “years of experience,” ask if it was good experience.
And whatever you do, do not fall for the favorite trick of the young but aspiring: “we have a collective experience of fifty years.” Ask. You might find out that the fifty seven years includes the ten years of paralegal’s military duty and the forty five years of the now senile founder of the firm. The old guy surely has an experience. He would tell you all about it, if only he could shake the belief that you are his dead butler.

"We have Expertise"
On your prospect’s website, push the "areas of practice" button. Does the website announce that your prospect will solve all problems caused by your wife, your business partner, your last fender-bender, the employee who is suing you for religious discrimination and the SEC? Unless you are hiring a firm of 80, your prospect is exaggerating his expertise. Think of doctors. Would you engage somebody who claimed that they could performa laporoscopic appendectomy, root canal, neo-natal surgery and give your wife a facelift? Didn't think so.
If you are hiring a solo or a boutique firm, it helps to make sure that the attorneys whom you hire spend time practicing whatever troubles you. If your son’s problems were largely caused by driving while impaired, do not call the firm that advises your boss on employment issues. Find a guy that is in the business of license reinstatement. If it is the wife that troubles you, your guy or a boutique should be in the divorce business. Not real estate. Not “personal injury with 10% of divorce.” Not “criminal with some divorce.” Seriously. If you needed your root canal, you would not go see a podiatrist with some teeth cleaning experience, would you? By the way, “boutique” means a law firm of a modest size, concentrating on a particular practice area. You actually have to click the “practice areas” button on the website, though. I saw a website once announcing a “boutique law firm” specializing … in personal injury, family law, corporate law and immigration." Seriously. That is like protesting that you have a monogamous relationship with your wife, your secretary and the Starbucks girl.

Signs that a law firm may be -- ahem -- exaggerating its significance
(BS busting by numbers)

1. Number of "specialties" divided by number of lawyers is greater than 1.5

2. Number of positions a lawyer claims to have held divided by his years in practice is greater than 2

3. Number of lawyers divided by number of "locations" is less than 3 (unless your lawyer is a solo -- in which case the office he has in his garage counts as the same location as his kitchen)

Signs that a law firm might be --ahem -- really exaggerating

A firm under 15 lawyers claims to do work in the areas of M&A and Antitrust

A firm without a tax department claims to do work in "corporate"
Any firm or lawyer calling themselves "prestigious," "excellent," "worldwide," and "unsurpassed," unless you are dealing with Boies Schiller, Cravath Swaine & Moore, Sullivan & Cromwell or Skadden Arps. Which I know is not your choice of counsel, because you would not be reading this.
Also, any firm calling itself "global." Unless you are hiring Linklaters. But then again, you would not be reading this either.
Just in case: if you are, in fact, interviewing somebody from these firms rightly calling themselves 'prestigious,' or 'excellent', stop reading this and sign the contract. Here is a list of top 5 law firms in the country.

Also of notice

Pinch yourself if you find:
A firm claims to practice "international law." Anybody in the firm claims to hold a J.D. from Princeton. Easter bunny. None of these actually exist.
Copyright (c) 2009 Aylward

Saturday, October 31, 2009

Dating Potential of the Closed Files

Every third Thursday at 8:30, Vicky and I share a bottle of Kinzmarauli and our unfailing disappointment with the Charlotte dating pool. Vicky, a beautiful skinny shiny wedding photographer has never been married and enjoys a sanguine view on the recently divorced. To her, my growing collection of closed files is a land of walks on the beach, rainbows and Tiffany rings, all turned into stone by a misguided witch. Every Thursday, by 9:15, Vicky tries to convert me.
“Your clients,” she starts again, “are rich and beautiful?”
“I have some of each.”
“Instead of destroying the sacred institution and bringing loneliness and despair into the world, you could…”
“Arrange that you have a date this weekend?”
“And didn’t you say that you divorced a handsome, kind and brilliant doctor called Kevin?”
“I divorced a doctor called Kevin.”
If you date a recently divorced guy between 35 and 45, you must not mind that 1. all his money goes to the ex-wife, while you have to eat in. You might have to occasionally buy the groceries; 2. the only time he stops talking about his ex is when he is on the phone screaming at her, on the phone screaming at his divorce lawyer, or when you are having sex; 3. he is either scoping every girl around or having sex with every girl around (Vicky says, it’s not a problem, she can share and I make a note to buy glass tags). I am told that all these problems go away after several years, but only if you do not notice them. Although, one might wonder if striving to not notice one’s date for several years is habit forming? Nah.
Copyright (c) 2009 Aylward