MacGomery Law

A fascinating article in the Washington Post confirmed what family law practitioners in Montgomery County have known for some time now – that many people simply can not afford to get a divorce as a result of the current economic recession. For many couples, the downturn in the economy and in particular the fall in housing prices makes it almost impossible to afford to end an unhappy marriage. For most people, their home is their single largest financial holding. When there is no equity in the marital home, most couples have little or nothing available to them to start anew after the divorce. In the past, the home has been one of the items most fought over and now it is the debt owed on that home that is most troublesome.

But a more practical aspect of the economic recession is the effect it has on couples who can not afford to even separate. In Maryland, a couple must live separate and apart for one year in order to qualify for a divorce on the grounds of mutual and voluntary separation. If the parties can not afford to have one spouse move out and get their own separate place to live, then often times they are stuck in a failed marriage. In DC and Virginia, couples can live “separate and apart” while under the same roof if they go to the proper lengths to insure that the intent of the law is met i.e. separate bedrooms, living areas, entrances, etc. Unfortunately, that is not the case in Maryland – although at least one case (Ricketts v. Ricketts, 903 A.2d 857 (2006), 393 Md. 479) has questioned that in terms of a limited divorce.

So what are we seeing in our practices? In my firm, the majority of the clients who come to me seeking a divorce do not own their own home. They are usually renting. My sense is that those who do own their own homes can not afford right now to get a divorce. I think you may also see more couples willing to admit infidelity and seek divorce on adultery grounds since there is no one year waiting period under those circumstances.

Either way, as the Washington Post article points out, there is a backlog of divorces waiting for the economy to improve.

This is the first in a series of posts designed to discuss litigating a personal injury claim. It is intended primarily for other attorneys but will hopefully also prove valuable to those who might be contemplating a personal injury claim.

After the accident, and hopefully after the person involved has begun treatment for their medical injuries, a call comes into the attorney’s office asking whether or not the person has the grounds necessary to raise a personal injury claim. This is the first contact with the potential client and is therefore the first opportunity to market your firm and services. Screw this up and you most assuredly will not get a new client. Do well, and even if the client or you decides not to go forward with the claim, you have created a potential referral source that could pay dividends in the future.

First things first – capture all of the client contact information. Get everything you can (name, address, phone numbers, and email) to allow you to contact them now and in the future. Have a new client form that you can easily grab when the call comes in that prompts you for this information. Or better yet, have such an input form on your client database so you can easily fill it out and create the database records without additional data entry steps.

Next, capture the relevant facts regarding the case. You should concentrate on facts concerning liability, injuries, medical treatment, witnesses, statements, and defendant/insurance company information. The goal is to listen to the client and give them an assurance that their case is important to you while obtaining enough information to make a determination as to whether or not you want to accept the case. Ultimately, you will have to make that decision and usually before the conversation is ended.

If it is a case you would like to accept, the next step is to get the client to execute a retainer agreement (subject of the next post in the series). More and more, I am doing this next step via email by sending the agreement and other intake documents to the client and asking that they be completed and returned via email. This has an immediacy to it and also steers the client to using email as the primary form of communication going forward. If that is not reasonable, then have the client come in for a face-to-face meeting. This has its advantages as well as you begin to establish a personal relationship with the client and they become more comfortable with you as their attorney.

If you are not interested in taking the case, your goal is to have the potential client recognize you as a future resource. Often times I will go to great lengths to give them the contact information of other attorneys who may be able to help them. Somebody might see the case differently and by referring them out you give the client the sense that their well being is your objective even if you can not take their case. And I will even ask the potential client to call me back if they are unable to find an attorney to take their case and I will help them to further look for one.

I try not to give the client the “I’ll get back with you” response unless it is really necessary. If the case presents an issue of law that I am not as comfortable as I would like, I might ask to get back with the client after I research it. But that research has to be done quickly and you have to contact them right away else they will think you are just ignoring their case and blowing them off.

So my goal for new client calls is pretty simple. Gather enough information that will allow me to either accept the case as a new client or else create a sense in that person that they can call me back on this or any other matter and know that they will be heard and their needs addressed to the best of my ability. Over the course of time, it has proven to be the right strategy for me in both developing a client base but also in creating corporate goodwill.

This story has been told by judges and family division masters in Montgomery County many times but it bears repeating. A couple stands before the judge in a highly disputed child custody case. The judge turns to the mother and says, “Ma’am, do you love your child?” To which she replies, “Of course I do!” He then turns to the father and asks the same question. “But of course I love my child.” The judge turns to them both and says sternly, “Well I do not. Why in the world you would want someone like me making decisions for you and your child is beyond me. Now go outside and try to work this out between you like adults and parents or else I am going to make a decision that I guarantee you neither will be happy with.”

Typically, no one is happy when the court has to decide who a child gets to live with and when the other parent can see the child and under what circumstances. It is almost always better for the parties to agree between them as to these matters rather than leaving it to the court. The system itself is set up to strongly encourage settlement between the parties. There are court facilitators available at no cost after the scheduling conference to try and assist the parties in coming to an agreement. The court often orders mediation as well to try and get the parties to agree. And the whole point of what’s known as collaborative law is to remove the court from the process and rely upon the parties to fashion their own parenting plan addressing custody and visitation.

I had a recent case in which both parties strongly felt that each should have custody of the minor child. They put all their eggs in one basket and relied on the findings of the court to make this terribly important decision that would affect their lives and that of their child for many years to come. Sadly, the court arrived at a solution that neither party was happy with – much like the story above. Each walked away blaming the system without stopping to consider that it was within their power to have fashioned an agreement of their own choosing. They may not have gotten all they wanted but much of what they would have gotten would have been better than what they ended up with.

For sure, car insurance and car insurance companies are a necessary evil. You would be foolish, and in this state illegal, to operate a motor vehicle without insurance. In the event of an accident, and in particular a major accident, you need the insurance coverage to pay for your property damage to your car and to compensate you for your injuries and lost time from work. But make no mistake about it, insurance companies exist to make money, a profit. And the primary way of doing so is to take in premiums and limit how much they have to pay out. This means that at the very time you need them, you may find yourself fighting with them to get what you deserve.
I recently had a client who was struck by another driver. It was very clear that the other driver was responsible. But a few days after the accident, the adverse driver’s insurance company sent my client a very small check for what she understood was to replace her child’s car seat. On the bottom of the check they included the phrase “Payment in Full for Bodily Injury Claim”. Now, my client had not even filed a bodily injury claim at that point. Nevertheless, when she did hire an attorney to file such a claim, the insurance company pointed to that first check and told her that in cashing the check she was relinquishing all further claims. In other words, they were trying to take advantage of her. Unfortunately, her first lawyer did not understand this and dropped the case. I was able to restart the claim and succeeded in getting her the full value of her claim.
So the next time you hear you are in good hands with…, or we’re on your side…, remember, they are in the business of making money. Hopefully your interests will align with theirs and everyone will be happy. If not, that’s when you need an attorney.

The question is obviously highly political. But it is about to come to a head here in Maryland as we await a legal opinion from Attorney General Doug Gansler as to whether or not under Maryland law same sex marriages that are legal in other states can be recognized here in Maryland. Same sex marriages themselves are not permitted in Maryland but are in several other states (currently Massachusetts, Connecticut, Iowa, Vermont, and Maine, as well as the roughly 18,000 same-sex marriages that are legally recognized in California). Governor Martin O’Malley (D) is apparently leaning towards recognizing such marriages. The District of Columbia already recognizes out-of-state same sex marriages while Virginia has yet to weigh in on the issue.

Regardless of how you feel personally, it is a fascinating legal argument full of due process and equal protection issues as well as the obvious argument concerning full faith and credit.

For the record, not that anyone cares, I support both same-sex marriage and recognition of out-of-state same sex marriages. I wrote on the subject in law school and have followed the debate closely as various states struggle with the question. What I have determined, and you may come to a different opinion, is that when all is said and done, the real reason for reserving the institution of marriage to the heterosexual community is because they/we want the word and it’s meaning to themselves/ourselves. You can have the same thing, just call it by a different name – civil union. Governor O’Malley supports civil unions in this state rather than same-sex marriages. Even the state’s highest court, in the seminal case of Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (Md. App., 2007) articulated that belief in the final sentence of their conclusion in the 4-3 decision upholding the ban on same-sex marriages by saying “In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.”

So what we are fighting over is the interest in fostering procreation and encouraging family values. It seems to me that we in the heterosexual community are doing a pretty good job of screwing those objectives up without any help from the state. When more than half of the marriages in this state end up in divorce, when a vast number of folks are divorced multiple times, when many chose to marry and not have children, or have children outside of marriage, or end up spending years screwing up their kids lives in broken marriages – I ask just exactly what are we holding onto?

If you are interested in sending a message to Attorney General Doug Gansler in support of the recognition of out-of-state same sex marriages, go to can sign a petition here and view a sample letter.

Frequently clients ask if they can change their name back to their maiden name or even that of a previous marriage when they get divorced. The short answer is most likely yes. Under the Family Law article of the Maryland Code §7-105, if you are seeking a divorce you may change your name back to either your name given at birth or any previous former name as long as 1) the party took the name on in marriage and no longer wants to use it; 2) the party asks for the name change; and 3) the purpose of the name change is not for illegal, fraudulent or immoral purposes. This means that the name you are changing must have been taken on by the marriage you now seek to dissolve. Further, you (or your lawyer) must ask the court to change your name in your Complaint for Absolute Divorce – which is the document that initiates the divorce action. And finally, you must certify to the court, usually through your testimony, that your reason for changing your name is not for purposes of committing an illegal act, or fraud, or for immoral purposes. Although changing one’s name during a divorce is relatively uncomplicated, it is often one aspect of the divorce that carries a lot of emotional baggage.

For more information on changing your name at the time of your divorce, contact a qualified family law attorney. If you need help finding one, the local county bar association can assist you.

I am struck by the fact that the two most recent appointments to the judicial bench, at least to me and my little practice, have been powerful women. At the national level, Judge Sonia Sotomayor will be sworn in this Saturday as the Supreme Court’s 111th justice, third woman and first nominee by a Democrat in 15 years. I was not practicing law when the previous two women were appointed to the Supreme Court so it has been interesting for me now to follow the nomination and confirmation of Judge Sotomayor. More locally, Judge Cynthia (Cindy) Callahan was sworn in on June 29th as the newest member of the bench of the Montgomery County Circuit Court.

For Judge Sotomayor, it was Princeton, Yale, NY County District Attorney’s office, private civil practice, informal solo practice, lots of public service, and then the federal bench. Judge Callahan started at St. Mary’s College, Columbus School of Law Catholic University (my alma mater), private practice, partner in ten years, solo practice, managing partner for Dragga, Callahan, Hannon, Hessler & Wills, LLP, and lots of public service.

Two very powerful women. Two very interesting careers. Two intriguing stories to follow…

I’m sure it will come at some point. Listening to all of my esteemed colleagues, who have been practicing far longer than I have, moan and groan about the system and about judges in particular, makes me wonder when I will become equally jaded. Because to date, I have been remarkably surprised about how accommodating the court has been towards me and my clients. There have been times when my clients have been late for court, or unprepared, or disrespectful (despite my efforts to make sure they are not) and still the court affords them a level of dignity that perhaps some might not think they deserve. And certainly I have demonstrated my ignorance on more than one occasion before the court only to have most judges take the time to explain to me the error of my ways.
I think bottom line, if you are polite and respectful to the court, it returns the favor. It only stands to reason that that would be the case. I have only really had a problem with two judges. One who ruled against me because he was mad at my boss (only to be overturned on appeal) and one who I think made an error regarding evidence (see my earlier post). But in general, my experience has been a good one marked by respect and civility. Maybe things will change, maybe I’ll become more jaded and cynical at some point. But I am not there, yet…

Like most legal questions, the answer is generally it depends. My practice concentrates on two primary areas of law: family law (divorces, child custody) and personal injury law (automobile accidents, slip & falls). Settling the case means different things in each discipline but generally it refers to resolving the issue without have the court make the ultimate decision. The court may help along the way by steering the parties to mediation or other forms of alternative dispute resolution. But if the parties can reach an agreement without the judge having to issue a binding court order, then it is usually in their best interests to do so.

I settled several personal injury cases this week alone. In each situation the key to getting a fair offer is to work the case up as if you were prepared to go to trial. In doing so, you can be assured that the opposing party and/or their representative is well aware of that preparation and can make an honest representation to their client. I also take an extremely professional and courteous approach with the opposing attorney or adjuster because you are going to do business with these folks down the road again for sure. While I may not get the best deal in this case, I am laying the foundation for getting a better deal in the next because they know and can trust me.

But in the end, it has to make sense for the client. Take the time to educate them and really explain the tradeoffs in detail. They understand far more than many attorneys give them credit. And frankly, at this point it is not rocket science. Settling their case now might not get them all they want, but it does get them some or most of what they want sooner, with less emotional trauma, and in a more dignified setting. And they control the terms rather than being at the whim of the court. For many personal injury victims or family law disputes, this sense of control is a liberating experience that can work to resolve the case quicker, cheaper, and more efficiently.

Jeff Richardson publishes a great blog on the intersection of two of my favorite themes: the iPhone and lawyering. While I disagree with his position on the use of Twitter by attorneys, it is easy to understand why he feels that way. One can easily be distracted by the pull of these social networks. But I think the potential can outweigh the downside if used properly and judiciously. Jeff’s most recent post also references a review of all of the current Twitter platforms for the iPhone. Check it out!