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Memoir of a Collaborative Lawyer: A Path to Wellness

JOURNEY

This is not a story of any single individual case or even any single client’s experience but instead of my own journey as a soul first and as an attorney somewhere way after that. It’s funny when you think about it because I vividly remember an almost transformative process unfolding as I made my journey into and through law school. I remember the days after law school when I seemed lost like a misplaced seed placed on a sidewalk just waiting for something to happen. Rain would come, bits of soil would be tossed my way but never the necessary nutrients to really thrive and grow. I think many of us like to think we write our own destinies. We like to think that we are in control but to be honest, as I hover over and really think about what has been and continues to transpire, even the most proactive of us have very little to do with where we find ourselves. There are just too many pieces in motion and too much time compared to the flash of our individual existence. Think for a second about how each of our individual neurons came to be. Did we take our hands and place each connection within our brain or have we actually placed none at all. I can’t help to think of what something said to me by a grandparent during my very early childhood may have effected something I later did that ultimately caused me to learn something which was later reinforced and hard set into what is now considered the hardware of my brain. To track each and every encounter and experience would simply be impossible. Instead, perhaps, I write this memoir recollecting some of those moments that I perceive may have had bearing and influence on my path to wellness and as a better collaborative professional.

It is actually with great pleasure that I give credit to the Jesuits. I was one of the privileged to have attended Tampa’s Jesuit High School. For those who are not familiar, it is a rather well respected organization more formally called the Society of Jesus. The Society of Jesus is a Roman Catholic order of priests and brothers founded half a millennium ago by the soldier-turned-mystic Ignatius Loyola. The Society is more commonly referred to as “the Jesuits.” [Unattributed]: The Jesuits: [http://jesuits.org/aboutus]: para. 1 and para 3: [Oct 11, 2016]. It was through my Jesuit education that I was taught and nurtured with the concept of “men and women for others.”

After high school I pursued a direction that many people would consider unlikely to lead to a path in a legal career. I pursued an education in the arts. I attended a liberal arts school, majored in studio fine art and minored in art history. What is interesting about a major in the fine arts is that there are many directions to choose from. Ultimately one finds an interest that coincides with a talent that ultimately leads to a direction. Looking back now, it is quite evident that each and every student eventually found his or her way through the program in a discipline that was influenced by his or her life experiences. It really didn’t matter whether it was painting or sculpture or in my case ceramics, everyones life experiences had some sort of direct bearing on what they eventually found themselves spending the majority of their time doing. During my time in the art program I vividly remember an intense period of discernment and introspective sole searching where I was calling on my inner self to surface.I was looking for meaning to my own existence.
After receiving my newly minted degree in the fine arts, I spent some time searching for my next direction by making art, teaching and by working various odd jobs. I also began volunteering for the Guardian Ad Litem (GAL) Program in Hillsborough County and got rather caught up in it. The GAL program is a program of professionals and volunteers who advocate for abused, abandoned and neglected children. It is hard not to be motivated by the needs of kids. They are all so wonderful and it is an honorable experience to advocate for these children who have so little and who have endured so much. During this time I received a full scholarship from the University of Notre Dame Fine arts department and decided to turn it down after my experience with the Guardian Ad Litem Program and I instead decided to apply to law school. I really wish I could just wrap this up by saying the rest was history but it just wouldn’t be so. To be honest, I thought law school to be mostly boring. Nonetheless there were some highlights and I graduated and passed the bar. Now this really seemed to be the moment when the rubber was about to hit the road.

Litigation: The Solution to Nowhere

Rubber hit the road when I found myself needing to pay more bills and not really having an income. To the lawyers, many of us share this experience or I should say many of us share this humbling lack of experience. When lawyers graduate and pass the bar we are just about qualified at best to change some lightbulbs in a law office. In the beginning of many lawyers legal careers they find themselves working for either the State Attorney’s Office, the Office of the Public Defender or another governmental introductory job. Young lawyers seek these jobs to learn how to litigate. It is in these offices that many habits are made and many legal personalities are formed. I eventually took a job with the Office of the Public Defender where I was asked on my first day to take a file into a certain room. Well, that room happened to be the chambers of a judge who had just started a restitution hearing against a defendant. I guess I could say I was the subject of a prank which, oh, by the way, happened to have bearing on the life of a real man. I lost.

My experience continued to be both humbling and frustrating as I was given a case load with absolutely no instruction or guidance and really not even anything said at all as to what I was to do. I received about three hundred real clients of which I had full and ultimate control over their cases. My experience as a public defender was in a circuit where the Office of the State Attorney was never really what most people would expect from the “good side.” Coincidentally we commonly referred to the State Attorney’s office as the “dark side.” So my job was essentially to litigate against them. During this period in my life I met many wonderful souls. People who never had a chance in life. People who had everything happen to them which forbade them to have any success in life. People whom the state of Florida considered garbage and systematically were driven out of the county by either pressure from harassment or by jail and imprisonment. I was asked to move from misdemeanor after about one year which meant my case load switched from handling misdemeanor batteries, DUI’s and petit thefts to just about all felonies unless the state was seeking death. Oh and my case load did go down from about 500 cases of my own to around 150 or so. The one thing I quickly realized was that I was not qualified to do the work that I was asked to do. To be honest I wondered if anyone in the office was with the exception of a couple lead attorneys. and of course there is always the common question of how can one handle so many cases? I’m not sure if there is a good answer to that question. My clients continued to be the indigent and unlucky souls. These people were broken. We were supposed to give them hope and we tried. The reality was that we were outnumbered and we as an office were the targets of systematic bullying. It was disheartening to say the least. I had one particular client who spent four years in the county jail. The system was designed to move cases and either force or allow a plea deal or to bring a case to trial for resolution by a judge or jury. Four years in jail! They forgot him. He was a soul who happened to have mental health conditions and whose crime was committed during a period of insanity. This meant he did not appreciate the difference between right from wrong when he committed the crime. I met the man after finding him on my case load and after realizing that he had over 1400 days in the county jail. He had read every book in the jail. The jail knew he was there because he was administered daily medications but yet no one stopped to say why hasn’t he been seen by an attorney.

The reality of the matter is that I was in litigation every day. It was at times casual litigation where plea bargains were formed and settled in the middle of court. Other times the litigation was brutal with heavy discovery and jury trials. There was an immense disparity of power as the State had all the cards. Their entire case was fully prepared by the time a public defender was appointed. The State had pretty much any resource at its fingertips and oh by the way, they had the power to agree to a deal or to file more charges whether new charges were justified or not. The majority of the prosecutors followed the direction of one senior prosecutor in their office and as a result, prosecuted in a harsh and at times unprofessional manner. Other prosecutors, the minority, followed the direction of the other senior prosecutor and conducted themselves in a mostly professional manner with the direction to move the cases and to seek justice properly.

My experience as a public defender taught me that litigation almost always hurt. There was very little opportunity to discuss the charges, the requests of the victims or the possible rehabilitation of the defendant. The State routinely refused to return calls, return letters or to discuss any case. It was all or nothing and it wasn’t nice. To loose ensured that your client was punished and frequently received the maximum sentence for taking the case to trial. The harsher sentence was not only intended to teach the defendant a lesson for challenging the state but it was also meant to teach the public defender that he or she should not challenge the state or else the defendant would be punished. For those who were interested in their clients wellbeing, this was a tough lesson. To be honest it was the tax payers that paid since loosing at trial meant more jail or prison time. The more the entire office was afraid to try cases, the more the State became entitled to do whatever they wanted including making up charges. Prosecutors were told that it wasn’t their job to drop charges that were not legitimate or could not be proven. I specifically remember taking a case to jury trial and winning and later learning that my client was harassed by the deputy on his way back to the holding cell after the jury found him not guilty. My existence was consumed by the stories of countless innocent souls and stories of why they only did one thing but found themselves being charged with three or four additional charges that were false. I vividly remember meeting a man who was tazered 13 times for no reason other than the officer wanted to teach him a lesson. One of my dear colleges at the office decided to run for judge and actually had to put up with a negative campaign by an assistant prosecutor who took it upon himself to post negative and hateful propaganda throughout the Court house. He was later spoken to and my friend was elected to the circuit court bench. I began feeling pressure in my chest on the way to the office in the morning and in my carotid arteries and knew that there needed to be a change. So that was the first three years of my life as a practicing and litigating lawyer. What I learned from the experience was that the environment of pure litigation was detrimental to everyone. There were very few success stories and it bred distrust and animosity. Though this is a tale of my experience in criminal court it none the less is an account of litigation where many lawyer receive their first training.

The Transition to Family Law

When I made the decision to leave the Office of the Public Defender I chose a job that was close to my house. To be honest I was busy healing some wounds, searching for options and trying to breath. It was at this second job that I was asked to practice family law. I actually knew nothing about family law at the time and later learned that neither did my employer or anyone else at the office. We hear the term “baptism by fire” all the time which means learning by jumping in. Well I had just experienced that approach with my prior employer and now it was getting ready to start again. I began taking divorce work and working hard to catch myself up so as to represent my client’s the best that I could. I began feeling a sense of freedom as I started helping people without the interference from governmental bureaucracy and politics and judges who were sometimes aligned with the wishes of the State. But, as you can imagine, things were not perfect. I signed in on a dependency case representing a young pregnant women. Dependency is an area of civil law where the State of Florida petitions the court on behalf of children who are either the victims of abuse and or neglect. In this particular case my client had improperly made a 911 call during an argument with her fiancé and alleged that he battered her. He was arrested based upon her allegations though there was no proof of any battery. The women appeared before the criminal court for his first court date and testified that she lied and that there was no risk of harm and asked the state to drop the charges which they did. Mind you the soon to be Father was in jail this entire time and had no influence on the Mother’s decision to drop the charges. Though the state dropped his criminal charges they decided that they were going to shelter the new baby when it was born due to the fact that they determined that domestic violence had occurred. Essentially the new allegations were that the Mother had failed to shelter her child from the man who battered her since she dropped the charges against him. even though there was no proof of the crime. Upon learning that my client was in labor, I rushed to Court on Christmas morning and was able to secure an order preventing the state from taking the child. The following week the head prosecutor of the dependency division called me cursing me out after she had scheduled a hearing with the Judge in the case and told me that if I wanted to be part of the hearing that I had better show up for court which was about to start in 20 minutes. My office was 40 minutes away. Mind you, the state had engaged in an x-parte communication with the judges office and had secured a hearing without any coordination with my office. I arrived at court and the Judge took the new born child who was obviously nursing out of my client’s hands and sheltered the child in foster care. Again, I wasn’t getting a warm and fuzzy yet in this new area of the law.

Though this early experience wasn’t pure family law it was however a first formative experience where I realized the best interest of children were not always being considered when the undoubtedly should have been. Whatever happened to least restrictive options! Oh but I forgot, we challenged the government and we, including an infant baby, were punished. My experience with divorce work was a little different though. Again, I didn’t have quite the same negative experiences with the Judges in the family law divisions and there really seemed to be a best interest of the children component to the statute. What I found to be challenging were the practices, behaviors and attitudes of my opposing counsels and of the parties involved. One interesting component about family law was that there existed a perfectly good opportunity to settle cases. The problem was that cases that should be settling were not. I began to realize that the attorney’s and the parties were getting in the way. They were actually sabotaging the ability to settle. Most of the time the facts were not difficult but there were still variables that created a road block. Some law offices understood that the longer the case lasted and the more work that they had to do, the more money they would make. Lawyers had the ability to amp up the drama and the litigation during private conversations with their clients with the intent to instill fear. Parties acted out of emotion and spite and they were easily persuaded to do what they wanted regardless of the cost.

I Found Collaborative

Later that year I got a phone call from a good friend of mine. Remember my friend who became a judge? She wanted me to look up something and she handed me a paper with the word Collaborative. I looked it up and made a few phone calls to the one phone number I found on the internet at the time. I received no call back and life continued. I continued practicing family law and just felt that something was missing. If only the parties could receive neutral input about their finances and about the needs of their children. The years continued to go by and my feelings remained the same until I found an organization called Next Generation Divorce. I found a forum for collaborative professionals that was new. People were coming and it was really exciting to hear many people expressing the same concerns. We all wanted to help people and to provide an option that didn’t include litigation. Collaborative was being discussed as an option that leveled the imbalance of power. It created transparency and ensured that the parties efforts and resources were focused on settling their case in the best manner possible. This was to be accomplished by utilizing a team approach consisting of neutral professionals best suited to develop neutral options. My, what a feeling of relief! I for the first time felt not only that I would now be able to serve families without the interference of bullies, without the inherent conflict between the attorney and the client which drives costs and litigation and with the ability to manage appropriately the high emotions of the parties going through the most difficult times in their lives. So now that we have it and it is accessible I knew I was ready. So now what?

You are probably guessing that it can’t be over, the search can’t end. There must be more. And that is accurate. Now that we have it, where are the collaborative cases? We all realized that we still don’t have the luxury to just say here is what we are doing now. There are two important variables. The opposing counsel and the opposing party. With everything that we all have experienced and with every well intentioned wish for our clients, the cases can’t be collaborative unless the other party and the other attorney agree to it.

Grass Roots and Wellbeing; Making the Switch

Just like any monumental change the collaborative movement also requires a plan and an organized and concerted effort. The thought that we can assist individuals so that they can resolve their differences in a much better manner where their lives are much more functional and their children are stronger is fascinating. This literally involves taking conflict and turning it into peace, strength and understanding. The thought that starting with a problem and addressing it so that people are less likely to divorce again and so that the children of divorcees are less likely to experience divorce is huge. This concept stands to have enormous impacts on our communities, our nation and our world. Remember, what are the things that impact divorced and divorcing couples? Most will agree that divorce creates a financial fallout as well as a direct impact on children. People who suddenly have less have less ability to be productive contributors and participants in our economy. They have less ability to weather and cope with their personal financial situations. The sometime experience bankruptcy and foreclosure. They have less time and are squeezed for resources to raise their families. Children are caught in the arguments of their parents and the dysfunction of their parents inability or their lack of desire to coparent. Parents sabotage each other at the expense of the children. So with so much at stake and so much to loose, who would be interested in experiencing such hardships? What would people choose if they were presented with a new option that is custom tailored to help them part in a better manner that minimized their risk and provided strength for their children?
The grass roots efforts in my opinion has to be there. Not only do we need the people to know collaborative law exists and for them to ask for it, we need them to not want the alternative. Collaborative has to be a common phrase. It has to be first in the minds of people when they need it. What if couples stopped telling each other that they were going to get a divorce but instead agreed to see a collaborative professional? The reality is that people don’t always know whether their lawyer knows about collaborative. I always warn people, if you meet a lawyer that speaks negatively about collaborative it is quite possible that they have not been trained or that they don’t know how it works or what it is about. The transformation in our communities must take place on several different levels. We must have transformation in the people within the communities, with the lawyers, the judges and the lawmakers.
During my training as a collaborative professional we learned about making the switch. The switch for me began before I even thought of law school. I remember vividly undergoing a process of discernment and self inspection during my formative years. Essentially “the switch” in the context of collaborative training asks an individual to give up their dedication to zealous blind advocacy void of consideration for the greater good. Through my journey, I came to realize many things. Some of which are that people are important, children are important, our communities are important, our economy is important and so is our individual wellbeing.

Personally, I think wellness and wellbeing is overlooked. Ignoring wellbeing is like treating the problem but never addressing the symptom. Litigation is like putting someone through intense chemo with many many side effects but never addressing whether a less intrusive treatment can be equally or more effective. Through attention to wellbeing we open our abilities to see the truth and to collaborate for the better of our families, our children and ultimately everyone else that we touch. People achieve wellbeing in many ways, from daily exercise to practicing a healthy prayer life. Paying attention to what your body needs is critical to managing stress. By proper stress management, one may begin to focus and to focus on making important and good decisions. As a collaborative professional, my objective in seeking wellbeing is to maintain good health, to be able to be present for my friends and family in a manner that they deserve and to be the best collaborative professional that I can be. Being a collaborative professional includes being creative and being resourceful which are both things that I bring from my past as an artist. As an assistant public defender I learned the need and importance of ethics and professionalism. I also learned the lesson that an environment of litigation breeds negativity and bad results and that there are never any winners.

Being a collaborative professional means being able to find the good in people no matter what they are experiencing. Being a collaborative professional means being a positive example and role model for people. My transformation began with my education from the Jesuits where I learned the importance of mind, body and soul and the concept of men and women for others. I pursued and gained the ability to pull from within and to introspectively search for meaning in my actions and beliefs during my formative years in the art studio. I learned the value of creativity and the need to see the beauty in the rough uncut rock. I looked in the face of despair and was humbled by lost and unjust odds. I was introduced to families that hurt and who hurt each other by the existence of their own unmanaged devices. And I saw the light in the collaborative process to help the individual, the family and the community at large. Lastly, I found peace in helping people and letting them know that our team has no intention to make it worse and that we can help them make it better. My journey leaves off here and I look forward to what is in store tomorrow. I pray for wellbeing and for wellbeing for others and I search for the tools to teach others. I welcome the day where I realize that the chain of dysfunction has been broken by someone I one day meet.

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