Here is an interesting link that dares to say something very politically incorrect: that maybe no fault divorce isn’t such a good thing. No fault divorce means anyone can walk away from their marital contract for any reason or no reason at all. There doesn’t have to be any “breach of contract” like infidelity or abuse. Now I don’t think anybody should be trapped in a bad marriage, but at the same time I think people shouldn’t be able to ditch their spouse and kids on a whim. I believe that the system of no fault, with it’s lack of accountability, goes too far.  If one spouse cheats and the other files for divorce, the innocent spouse, who happens to earn more money, shouldn’t have to pay alimony to the cheater, right? If you breach the marriage contract by cheating, why do you deserve income equalization? It’s more complicated than that, I know, and I am certainly not talking about not paying child support — kids are always the innocent ones in these situations — but I am committed to the idea that accountability should be part of the process.

Chris

I was recently asked the above question. The answer is… it depends. Every situation is different, so there is no one size fits all answer. Generally, though, SSDI is social security disability income.  It is directly tied to a person’s income and is considered income for the purpose of establishing a support order.  To the extent that the SSDI recipient’s children also receive benefits, there is a provision at DCF 150.03(5) that addresses giving the payer credit for those payments.  SSI, on the other hand, refers to supplemental security income.  It is a form of public assistance and is not income under Wis.Stats s.49.96.  As such, it is not considered income for the purpose of setting support. Other types of benefits (VA, State) have to be evaluated separately.

Even though there is no specific law for it, courts are starting to recognize and order “virtual visitation” in more and more child custody cases. Getting to chat with your child over web cam or on face book isn’t the same as being there, but it certainly is better than waiting until next weekend.

See the whole article in Wisconsin Law Journal.

A common misconception about the law is that it’s pretty simple. People think that when they have disputes, courts are there to hand down the fair and right answer. Unfortunately, that is far from the truth. Achieving a fair resolution in a legal battle is a lot more complicated than that. The reason brings me to the difference between procedure and substance.

All lawyers learn in law school the difference between procedural law and substantive law. Put simply, substantive law is about the substance of your case: the facts, the dispute, the “why” you believe you deserve to win. When most non-lawyers think about a legal case, they only think about the substance.

Procedural law, on the other hand, is what non-lawyers often call “technicalities”. Procedural law is the millions of rules that govern how a case can be presented to a court. Some of these rules are very important and make a lot of sense, others not so much. For example, one very important procedural rule is based on the 4th Amendment of the United States Constitution. That rule says that if evidence against you was gathered illegally by the police, then that evidence cannot be used at trial to prove your guilt. When you hear in the newspaper that a “criminal” got off on a “technicality”, very often that technicality is the most important legal document in the United States.

On the other end of the scale, there are procedural rules that seem patently unfair and counterintuitive. For example, if you are injured by the action of a government entity, in most cases, you must file a document called a Notice of Claim with that entity within 120 days of the date of your injury. If you don’t make that deadline, and if your Notice of Claim document itself doesn’t comply with the myriad of additional rules governing those claims, you lose your right to sue entirely. All too often, people are injured by the negligence of a government agency, but don’t realize that they have a very short amount of time in which to file their claim. Imagine if you were seriously injured due to government negligence and were hospitalized. You could easily spend weeks and months recuperating, healing, dealing with work loss, figuring out how to manage your life while incapacitated, and so on. Thinking about suing the government is not the top priority on your list. By the time you do think about it, you have probably missed your chance. That’s an example of a procedural rule that seems to serve no real purpose other than to cheat you, a citizen, out of your right to sue the people who make the rules.

Unfortunately, there are a lot of procedural rules which can result in your case being thrown out, no matter how good the substance of your case actually is. Successfully winning a court case is kind of like trying to walk across a balance beam with American Gladiators swinging at you to knock you off. It really doesn’t matter how good your case is if you get slapped down by a procedural rule. Dealing with procedure is an important reason why a lot of people decide to hire a lawyer. So if you do decide to go it alone, be very careful about making sure you understand all of the rules that you have to follow to get your case to a successful conclusion.

Chris

Okay, so that’s a common question, and a tough one to answer. If you ask a lawyer at the beginning of a case how much it will cost, he will hem and haw and talk and theorize, but usually he won’t answer the question directly. People sometimes think lawyers are being evasive, but the truth is they just don’t know the answer. Trying to put a price tag on a legal case is like trying to predict the weather. You can guesstimate, but you just can’t predict everything the other side in a case is going to do, and when the other side fights more, it costs more.

Putting a price tag on a legal case is like asking “How much does a car cost?” Well, it depends. What kind of car? New or Used? Basic transportation or status symbol? Environmentally friendly or sporty? Utility or family? And on and on.

The reality is you can spend $500 on a car, and you can spend $500,000 on a car. How much car you get depends on what you want and what you need and what you can afford. You know that you get what you pay for, so you spend more even though that $500 clunker turns over. And, you’re financially responsible, so you don’t go out and buy a Beemer when a Ford or a Honda will do just fine.

It is the same with legal services. How much it costs depends on the case, depends on what you want to accomplish, and depends on how extravagantly you want it done. You don’t want to hire a bargain basement lawyer anymore than you want to buy a too-cheap car. It’s just gonna let you down. And you don’t need to hire a high end lawyer who will spend a ton of your money to accomplish the same thing as a good, reasonably priced lawyer can. What you have to do is first find a good lawyer who you feel will get the job done for you, and then work out a price. It may be that you accidentally walked into a BMW dealership when you were looking for a Toyota, or stumbled onto a used car lot when you really want new. You may not find the right lawyer at the right price on the first try. And you may find that you still can’t get a straight answer on what the case will cost. Lawyers don’t like guesswork, and some of them just refuse to try.

At BadgerLawyer, we believe in giving a customer a price tag up front. Once we evaluate your case and your goals, we will be glad to give you a quote on a one time, discounted up front payment that will carry you through the whole case. That gives you the peace of mind knowing that the business end of the arrangement is taken care of, so all you have to do is sit back and let us take care of the law for you.

Chris

And no, trial skills isn’t number one.

Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.

Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.

Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.

Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.

Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.

Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.

No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.

Let me know what you think. What skills do you think a good trial lawyer needs to have?

Check out this article in the Wall Street Journal about how the economy is impacting people who want to get divorced, but can’t sell their house.

What God Has Joined Together, Recession Makes Hard to Put Asunder

What do you think about this? For marriages that need to end, obviously it’s another casualty of our economic crisis. But what about for people who are wanting a divorce without thinking it through too well? Will this forced living together lead to reconciliations?

Chris


Here is a reprint from my recent article in La Crosse Magazine.

One thing I’ve noticed in recent years is that the law has undergone an enormous, but unnoticed, change. When I was a kid, a lawyer was somebody you hoped you’d never need, and you probably wouldn’t. Lawyers lived in high rise offices and “handled” “situations” for rich clients. The only time we common folk might need to visit a lawyer would be to see the local guy about a will.
My how that has changed. The skyrocketing rise in divorce rates has driven more than half of everyone who gets married into a long-term, expensive relationship with a litigation attorney. Decades of “toughness” on crime has lead to the criminalization of conduct that used to be legal, and now hardly a family hasn’t had a brush with the law. The growth in home-based and small businesses has led to literally millions of Mom & Pop LLCs that have a need for legal counsel, whether it’s just to make sure the papers are in order, or to defend the lawsuit if they aren’t.

Being a lawyer nowadays is a lot more like being a doctor or a dentist. Pretty much everybody is going to need a lawyer in a significant and ongoing way some time, probably several times, in his or her life. Given this fundamental shift in who needs legal services, you might think that law firms have drastically switched their approaches to how legal services are provided.

You’d be wrong.

If there’s one thing the law is, it’s traditional. To give you an idea, community property law – the law that divides assets in divorce – was invented by the Visigoths. For those who missed that history lesson, they’re the ones who brought Ancient Rome to its knees. So, change happens slowly.

Why? Lot’s of reasons. Lawyer regulations discourage change – we couldn’t take credit cards for most services two years ago. Lawyers by nature are a conservative lot – we’re afraid you won’t come to us if we don’t have expensive, traditional offices. Lawyers aren’t risk takers – it’s our job to worry about what would happen if everything went wrong, and that gets to you after awhile. Lawyers just don’t do change – our whole system is based on the law of stare decisis, legalese for “if it ain’t broke.”

But, the world is changing, and somebody has to be the first to jump. There ought to be ways to offer legal services with fee structures more friendly to the everyday person. If you, the prospective client, can accept a non-traditional (read: cheaper) office, the savings can be passed along. If lawyers could find a way to do what doctors already do – charge for specific services (e.g., an x-ray, a strep test) – instead of signing on for the whole case or not at all, you could buy only the legal services you needed.

In fairness, law is different from medicine or other professions. The law can ruin lives, like illness, but the law will let you represent yourself – try asking a surgeon to pass the scalpel. The law rarely offers a clear answer – “gray area” is our favorite word. It makes sense to have a lawyer for the whole case, most of the time, but it also makes sense, to me at least, to have a lawyer for just part of your case if that’s all you can afford. Isn’t some better than none? I don’t pretend to have all the answers, but I think we should start the discussion. Please join me and weigh in with your thoughts.

Okay, that’s a misleading title. This is not a post by some old guy ranting about how all you young folks are too loud all the time. No, the Badger is just fine with that.

What I hate is the disorderly conduct statute. The law that makes it a crime to engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to provoke a disturbance.

Perhaps you read this and wonder, what’s not to like?

Lots of things. This is a criminal statute. There are a lot of serious ramifications. Upon conviction, you can go to jail for 90 days and get a $1000 fine. If you get three of them, the penalties for most any additional criminal charge go through the roof (think, two years for a noise disturbance). If you get convicted, you’re a criminal and you’ll have to explain that on every job and professional license application for the rest of your life. Your name will appear on CCAP and everyone can read all about it. If you are going through a divorce or child custody issue, you’re a criminal, and also irresponsible, right? Couldn’t control your behavior and got all disorderly? And heaven help you if it was a domestic DC. Even a minor conviction for disorderly can haunt you in many ways.

But disorderly is also the least serious crime out there. If you represent yourself, very likely you went to visit the DA and were offered a fine if you pled guilty. That probably sounded good. After all, you did do what they said, and your behavior certainly fit into list above .. boisterous, profane, or if nothing else “otherwise disorderly conduct.”

And there’s why I hate this statute. Anything, and I mean just about anything, can fit within the definition of disorderly conduct. If you yell at someone, or grab something out of their hand, or whoop it up, or drop an F bomb in the wrong place, you could catch this charge. That gives an awful lot of power to the police — power they aren’t supposed to have — to pick on certain people they don’t like. And the statute to me makes it really hard to figure out what you can and can’t do. Maybe you want to stand outside the courthouse and yell about the bad job you think some judge is doing. That’s called protesting, but it’s also disorderly conduct. Knowing you might get arrested, are you still going to go tell the world what you think, or maybe are you going to let it ride?

I think the DC statute is unconstitutional, and I am sad that the Wisconsin Supreme Court disagrees with me. I believe in our right to free speech, press and association, and I don’t think we should be arrested for speaking our mind, even if there is an F-bomb in there. And I also believe the police should not have the subtle power to single out groups or individuals they don’t like and arrest them at random on some “otherwise disorderly conduct.” And the thing is, the Wisconsin Supreme Court agrees with me. They say well, people in prosecutor’s offices are sensitive to the Bill of Rights, so certainly those cases where the disorderly conduct is actually an exercise of free speech won’t be charged.

If only that were true. I see case after case where someone should not be charged with a crime but the DA and the police don’t want to let him go. So they throw a DC on him. And worse than that, I see lots of cases where people, including some with lawyers, plead out to the charges without ever challenging the constitutionality of their particular case. After all, it’s only a DC, right?

And that’s where I think the Wisconsin Supreme Court ought to reconsider the issue. While it is true that the courts are there to weed out the bad cases, the reality is that people can’t usually afford to hire some big gun lawyer to fight a lowly disorderly conduct. So people plead and get a fine. And prosecutors know that. And cops know that. So the fact is, it doesn’t matter what the learned Supreme Court has said about the way the law ought to be used, because that’s not the way it is used in practice. You can’t have a law so broad that anyone is a criminal and leave it up to the enforcers to decide. The law has to set the limits itself. Otherwise, we might all be too afraid to raise or voices in protest. And that’s why I hate disorderly conduct. The law needs to be re-written to make it clear what is criminal disorderly conduct, and what is us acting free.

At BadgerLawyer, we’re all about empowerment. Making available to you information about the law that you can use to help yourself in the event you have to go it alone. That does not mean we advocate representing yourself. Far from it. The information on this website is only a tiny fraction of what a good lawyer knows, and your skill in the courtroom, no insult intended, isn’t close to that of an experienced trial attorney.

But doing your own divorce is easy, right? You just go to court, file some forms, fill out financial statements, and then four months later voila, you’re divorced. Why pay someone to do that? Well, kind of the same reason you pay someone to cut your hair. Sure, you can do it yourself (the Badger confesses he cut his own hair frequently in middle school to irritate his mother). And yep, it’s going to look terrible. But it will be out of your eyes, off your neck, and over your ears. Functional, but don’t go on any job interviews. It’s the same with DIY law, except that given a little time, hair grows back. Mistakes made in court — and there’s lots of room for error — often can’t be fixed. Not to mention that bad court rulings tend to hurt a lot more than a bad haircut.

So here are a couple specific, good reasons to hire an attorney to help with your divorce. What’s going to surprise you is a good divorce lawyer can pay for himself.

Ongoing Financial Obligations
In all likelihood there will be continuing financial obligations between you and your spouse after the divorce, whether in the form or child support or spousal maintenance. You will either be receiving payments or paying them. The decision about who, and how much, will be decided by a judge. The judge may be fair, but he is not going to research and investigate your case for you. The decision is really going to be made based on what is presented to the court and how the case is argued.

You are up against your ex. Someone who obviously does not have your best interests at heart anymore. Someone who may be thinking very selfish thoughts about the money divisions right about now.

You don’t know the law. You don’t know everything you are entitled to. You don’t know all the things that might be exceptions to your obligations. The chances of you not getting the best result for you are pretty significant. If your ex hires a lawyer, the chances are close to 100%.

If you hire a lawyer, you get the best result possible for you and your children. Think of it this way. If a lawyer gets you even $100 per month better result, that extra cash is going to pay for the lawyer within a few short years. And that’s just $100.

The Wise Man Builds His House on a Rock
Not all court orders can be changed. Those that can be changed sometimes have long waiting periods before changes can be made. That the law. There’s also reality. Judges are human, and once they have reviewed a case and rendered a decision, they aren’t going to want to revisit it. They are trained legal specialists with confidence in their ability. The very first thing they will think is “If I made the right decision three months ago, why would I make a different decision now?”

What I’m getting it, is once an order is issued, it becomes the king of the hill, and if you want it changed, you have to come up with a pretty good reason for changing it.

The DIY problem is that you aren’t trained to think about all the little legal issues that could come up later, and you may agree to something now that sounds fine, only to realize that you signed a custody sharing agreement that has the kids with your ex for your mom’s next four birthdays, and she’s not happy with you. Or that you need to change jobs but your support payments have you so cash strapped you can’t get on with your life. Or your ex is getting remarried and the new spouse wants to go to a different church, and that isn’t mentioned in the decree.

If you do it yourself, you are going to end up back in court more often, fighting more, and get less of what you want. It may cost more up front to hire a lawyer, but it will save you money, headaches and time in the long run.