Friday, August 14, 2015

Brady Federal Deflategate Appeal: A Mediator's View

Tom Brady along with the National Football League Player's Association are currently in a federal lawsuit in a U.S. District Court against the National Football League.  The case centers on the appropriate use of power by the NFL commissioner to act as labor arbitrator, but is that really what it is about?

How did the loss of a small amount of air in a few footballs balloon into a federal case?  

Attorney James M. Lynch of Stevenson, Lynch & Owens, P.C. recently wrote an excellent post outlining the legal arguments that both sides have, and why, in his opinion, Brady has the stronger case: Brady Federal Deflategate Appeal: A Lawyer’s View.   As a lawyer, I found the analysis intriguing, but as a mediator, I wonder if the legal analysis of this case misses the point.

Tom Brady isn't in court to stand up for labor unions.  The fans and the public don't care that much about whether Roger Goodell's decision was consistent with the "practices of industry" or the collective bargaining agreement.  The settlement conference on August 12th outlined this disconnect because very little of the discussion was actually about the case law, yet that case law might control the outcome of the case.  So why even schedule two settlement conferences if they don't help decide the case?  Mediators know the answer: What someone is asking for is not always what they actually want.

Mediators are trained to actively listen in order to get to the interests that are underneath positions, to help figure out what both sides really want.  While the settlement conference was run by a Judge, and not a mediator, there were many similarities to mediation.

Courtroom Sketch of Settlement Conference by
Jane Rosenberg, Reuters/Deadspin
The lawyers for Tom Brady and the NFLPA at the August 12 settlement conference made small concessions in their arguments, for instance, allowing that maybe Brady should have cooperated more.  Why would they make any concession that could hurt their case?  It shows they're willing to settle, which is an invitation to the other side and also a signal to the Judge that they're trying to do what he wants them to do.  A willingness to settle is not a sign of weakness, but rather a recognition of the risks of fighting longer and the benefits of ending the dispute.

The NFL on the other hand, continued to point to the letter of the law in the CBA, refusing to acknowledge any of the weaknesses in their case that Judge Berman was pointing out.  This is not just a hard negotiating tactic.  It shows us something else about the NFL's interests in taking this matter to court.  For some reason the NFL wants to make an example of this particular case.  One possible reason is that Tom Brady is a high profile player, a chance for the league to show no-one is above "the law".  Another possible reason for the NFL fighting this case is a reaction (or over-reaction) to the significant amount of criticism the league has received in the past year over suspensions in other cases.

Recognizing that the NFL is more interested in the public relations battle than a court case is something the Patriots and the NFLPA seem to be missing or misinterpreting.   The Patriots have continued to release e-mails, and essentially fight the PR battle in an attempt to discredit the NFL.  From a lawyer's perspective that might make sense.  If the NFL loses then you win, right?

However, if what you really want is a settlement, that hopefully involves no games lost for your star quarterback, then fighting the PR battle is actually a bad move.  Every ding in the NFL's shield means they have to fight back harder.  It doesn't give them a reason to settle; it does exactly the opposite.

Mediators are trained to help parties find solutions where both parties can meet some or all of their goals.  There a solution here where the NFL and Tom Brady and the NFLPA all get what they want. In fact, there are multiple solutions that would be better for everyone involved than a lengthy trial.  The reason Judge Berman would schedule two settlement conferences right away is because he understands that possibility.  Now we will see if the NFL and Tom Brady understand that as well.


Monday, August 10, 2015

The Future of 'The Night Circus' is a Marital Asset

In Massachusetts, the asset division statute (M.G.L. c. 208 s 34), grants the court significant discretion and authority to assign assets owned by one spouse to the other in a divorce case in order to reach an "equitable" division.  The trial court has broad discretion as to the treatment of all types of assets owned by either spouse, but before the court can determine an equitable division, the assets themselves must first be defined and valued.  With many assets the value is straightforward, and there are accepted ways of valuing real estate, personal property and business interests.  But some assets, such as stock options, are very difficult to value reliably.

What happens when the value of a marital asset is uncertain?

The Appeals Court, in Canisius v. Morgenstern, addressed this question in regards to potential royalties and movie rights for the author of The Night Circus.  The trial court Judge had excluded future income from the sale of the wife's book from the asset division because "the present value of future income of intellectual property is too speculative to consider."  The husband appealed, and the appeals court disagreed with the trial Judge:
"With respect to the possibility of current valuation referenced in S.L. v. R.L., supra, case law indicates that the uncertainty of value of a party's interest does not necessarily require its exclusion from the marital estate."
The Court goes on to point out that previous cases have clearly outlined a preference for present division of all assets, but "where a present valuation of [an asset] is uncertain or impractical, the better practice is to order that any future recovery or payment be divided, if and when received, according to a formula fixed in the property assignment." 

The court distinguishes the royalties form the existing book in this case from "future earning potential", which would be more like income she might receive from writing a second book.  The wife argued that the unknown nature of the royalties were similar to patents, which have been excluded from division in other cases.  However, the Appeals Court disagreed, characterizing the book royalties as more similar to a pension.

The Appeals Court went on to point out, though, that there may be good reasons why the division of those future earnings might no be equal.
"Among other things, the future book sales, upon which the royalties are based, may be enhanced by the postdivorce efforts of the writer-spouse through promotion, marketing, brand building, and the creation of subsequent works (which may generate interest in an earlier work)... The point we make here is, with the passage of time, the respective contributions of the parties to the marital partnership, which allowed for the creation of the work, may become attenuated. A judge properly may consider such factors, in conjunction with all of the G. L. c. 208, § 34, factors, in determining the percentages of any future payments to be allocated between the parties. "  
Given the significantly long-term upon which royalties might be received on this work, this seems like an excellent opportunity for the parties to revisit their settlement options before retrying this issue in the lower court.



Sunday, August 9, 2015

Collaborative Kayaking

Collaborative Law is a practice that requires finding the right balance in many different ways.  The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court.  Clients and their counsel must find a balance between individual advocacy and shared goals in order to reach solutions.  Finding this balance can sometimes be difficult and challenging, but also rewarding.

Kayaking is a great metaphor for collaborative practice, because it also requires balance and work in order to have a rewarding experience.  On Thursday, July 23, 2014 some members of the Massachusetts Collaborative Law Council decided to bring the metaphor to life by joining each other for a summer afternoon of kayaking at Lake Cochituate in Natick.  Here are some pictures from the event:










If you have a dispute, ask yourself if you want professionals handling your case that can't get along?  Choosing one attorney to represent you in a traditional litigation or negotiation, leaves completely to chance who the other side hires.  Why take that risk?  If you choose a process like Collaborative Law, you increase the chances significantly that the professionals assisting you will know each other and know how to work together efficiently.

See more at: http://skylarkmediation.com/collaborative



Wednesday, August 5, 2015

How Long is a Marriage? It Depends why you are asking!

The Massachusetts Appeals Court has decided another case interpreting  the Alimony Reform Act, that I will likely refer to as that "length of the marriage" case rather than trying to pronounce the actual name.  In Valaskatgis v. Valaskatgis, the Appeals Court was faced with the question of whether the Alimony Reform Act's definition for "length of the marriage" also applied to property division questions.

Question: Does Length of the Marriage (for Alimony)  =  
Length of the Marriage (for Property Division)?

Answer:  No.

Why does it matter?

The Alimony Reform Act defines length of the marriage as:
"the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage; provided, however, that the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage." M.G.L. c. 208 § 48
The Property Division statute lists "length of the marriage" as one of the numerous factors that the court shall consider "in fixing the nature and value of the property, if any, to be so assigned" from one party to the other.  See M.G.L. c. 208 § 34 

If these are the same, then property acquired after the date of filing a divorce complaint would not be part of the property division discussion.  That was the argument the husband was making in Valaksagtis Valaskagis Vakaslagis Valaskatgis, because he received $96,000 in overtime income after the divorce filing but before the date of the divorce.

The Appeals Court disagreed and even though the name of the case is not simple, the court's theory is pretty straightforward:  "Nothing in the language of § 48 (or for that matter, in the language of the Alimony Reform Act more generally) indicates or suggests that its definitions are to be exported beyond §§ 49 through 55."  Which essentially means that longstanding case law regarding property acquired after the Complaint for Divorce filing still stands, and the Judge has discretion to divide that property in consideration of all the § 34 factors.



Friday, July 24, 2015

Are Divorce Lawyers regularly violating the Civility Guidelines?

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council, one of it's founders, Rita Pollak, spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over.

The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all family law attorneys and we should refer back to them whenever we're unsure about our plan of action in a case.  Even small failures in a divorce case can have lasting impact on families and children.  Consider the following typical example:

A wife gets an e-mail from her husband asking her why her attorney hasn't responded to his attorney about the financial information they are supposed to exchange.  She calls her attorney upset that her husband is bugging her about this and complains that she doesn't want to talk to him about the divorce.  That's why she's paying the attorney.  What should the wife's attorney do?  

"A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable."


As a litigator, the wife's attorney sees it as her responsibility to solve all of these problems for her client.  So she writes a letter to opposing counsel with the requested financial information, and a demand that the husband "cease and desist" all communication with the wife except in reference to the child.

This might be an appropriate response to protect the wife, if the husband's e-mails were aggressive or threatening.  But if the husband simply happens to be in more of a hurry to get divorced than the wife, the lawyer's demand that they cease all communication will do more harm than good.  That demand takes a small discomfort by the wife and turns it into a highly contentious issue, pretty much guaranteed to make the husband defensive.  It also models a communication style for the wife that encourages all further disputes be stunted or go through the lawyers.  While that is advantageous for the lawyer's financially, it is detrimental to the family, financially and emotionally.

The civility guidelines point out:
"Domestic relations cases are unique in that they center primarily around children, family members and interpersonal relationships. Divorce is often a painful and stressful process. Clients and other family members may be in crisis and emotions often run high when a couple separates or parties are involved in a court case. Lawyers, however, set the tone for their clients. A lawyer’s incivility may unwittingly fuel already volatile circumstances or encourage a client to become hostile and unreasonable. The best domestic relations practitioners are holistic in their approach and focus on their role as a counselor as well as zealous advocate for the client. Lack of civility may have devastating, lifelong personal consequences for the client, the client’s children and the client’s most important relationships." (emphasis added)
The wife's lawyer in this example violated the civility guidelines, by setting a tone of hostility between the clients.  That lawyer had an opportunity to help her client by having a conversation about the best way to communicate with the husband and how she might respond in a way that encourages more productive future communication.  The wife's lawyer also could have picked up the phone and spoken with the husband's lawyer, expressing how her client was feeling and encouraging the husband's lawyer to have a constructive conversation with his client about being patient in the process and how he can best communicate with the wife.

All divorce lawyers need to be thoughtful about how every part of their practice models good or bad behavior for clients in an emotional crisis.  When choosing a plan of action, practitioners should ask "Does this help my client and her family long-term?"  Answering that question will seldom result in sending an aggressive letter or e-mail.  As long as lawyers fail to model effective communication, more and more people will turn to mediation and collaborative practitioners to find a divorce process that respects families, instead of destroying them.


Monday, July 20, 2015

Parenting Time, not Visitation

As of July 15, 2015, the Massachusetts Family Court's website and forms have been updated to use the term "parenting time" in lieu of the outdated term "visitation."  Chief Justice Angela OrdoƱez has made this long overdue change recognizing the national trend away from the pejorative term "visitation", which implies that one parent has less of a role than the other.

This was simply the right thing to do and we applaud the move.

Thursday, July 2, 2015

Collaborative Law Training with Justin Kelsey

Currently, four of the attorneys at Skylark Law & Mediation are trained in Collaborative Law, an out-of-court dispute resolution process.  The Collaborative Law process may be used to resolve conflict in all types of matters, including family, business, and probate disputes.  The Collaborative Law training is an excellent opportunity to add valuable skills to your conflict resolution toolbox.

Justin Kelsey, the owner of Skylark Law & Mediation, PC, will be one of the trainers at the upcoming 2015 Introductory Collaborative Training presented by the Massachusetts Collaborative Law Council.

This training meets the standards set forth by the International Academy of Collaborative Professionals (“IACP”), and those completing this training are eligible for membership in the Massachusetts Collaborative Law Council and the IACP.  More importantly, by participating in this training you would immediately become part of a growing, cutting-edge international community of Collaborative Law practitioners.

For more information or to register click here.


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