My journey towards this award began on April 28, 1999, when I
had a minor rear end collision on the Maine Turnpike. Unknown to me, lymphoma
cells had some time before chosen my body for a safe harbor. The rear end
collision sent me to my osteopath, who, while manipulating my neck, detected an
enlarged lymph node, which was later diagnosed as Non-Hodgkin’s lymphoma. I
learned it was a slow growing malignancy. Meaning, there was time. I knew I
wanted to leave a mark in this life, but I knew I would have to make some
changes if I was going to be able to take advantage of the time I had. I needed
to stop what I was doing (general trial practice) and figure out what to do with
that time remaining.
Kids! I could apply my trial skills advocating for kids.
Luckily, the State Courts of Maine were simultaneously professionalizing the
practice of Guardians Ad Litem, so I took the first course offered to become a
"rostered" guardian, confident in my knowledge having practiced
domestic relations law in small practices for over 25 years. The first thing I
learned was how much I still had to learn. I have completed five years of
"on the job" training as a Guardian Ad Litem and I’ve never had a
better job. I want to thank the ABA Standing Committee on Pro Bono and Public
Service for choosing me this year to receive the Ann Liechty Award. It somehow
doesn’t seem right to receive and honor for something I love doing so much. I
have done pro bono work in the past in the recognition that everyone deserves
representation in Court. This is even truer of the children of poor families,
whose resources are becoming scarcer and scarcer in this age of budget cutbacks
and deficits. Now, more than ever they need an extra ear to bend, an extra voice
in their corner.
Those who know me, know I relish a soapbox, and I figure I’ll
never get a chance like this again. I want to challenge my professional
colleagues in the Family Bar to take steps as lawyers within their power to
reduce conflict between parents in child custody cases. I can almost hear a
collective "riiiight…" As a guardian I have had a real opportunity
to see how WE behave in custody battles very much effects the ability of parents
to come to an agreement on how best to raise their children. We need to
understand the long term effect of how we practice upon children. Kelly and
Wallerstein have done an extensive longitudinal study of the effects of
long-term parental conflict on children and have shown that children subject to
this kind of conflict are at greater risk for juvenile delinquency, substance
abuse, mental health issues, suicide, difficulty establishing trusting
relationships, and later criminal behavior. Our behavior in litigation is making
this worse, and we need to change. I will give some examples:
- Many states
have enacted mandatory mediation in family matters. The lawyers and their
clients meet with a neutral to try to reach an agreement. Way too often I have
seen lawyers, trying to impress their clients, address the other party
personally and disrespectfully. They may not realize it (because we are used to
behaving this way towards each other), but we often inflict pain and generate
on-going anger and bitterness which is injected into the case or intensified. We
need be more careful about what we say in those circumstances and avoid
inflammatory language. It often can’t be taken back (as we are fond of saying,
"the bell cannot be unrung") and inflicts serious harm on the long
term prospects for cooperation between the parties.
- The same is true when we
write inflammatory letters to opposing counsel, often for the purpose of looking
active and vigorously defending the honor and interests of our clients, and not
to achieve any sort of agreement, and knowing they will be passed along to the
other party. These communications have the ability to wreak havoc upon the
parents’ emotions and thereby, their children. I cannot count the number of
times that I have interviewed parents who complain to me not about their soon to
be ex-spouse but rather his or her lawyer!
- The same zealotry applies to
closing arguments in trials. True we are not bound only to talk about the facts,
but it is important to remember that what we say in these arguments are heard by
the parties and remembered. So it is even more important not to go overboard at
the end of the case, as often this really is the last thing the parties will
remember. Zealous advocacy need not mean we should gratuitously inflict pain
that will leave a lasting emotional scar. In this way, we can all contribute to
the well being of children going through the trauma of their parents’ divorce.
We might even improve our reputation as a profession.
