Tuesday, November 04, 2008

The Decline of Litigation and the Paradoxical Increase in the Need for Witness Preparation

Even before the economic climate turned stormy, family law litigation has been on a trend toward less litigation and more mediation and collaborative law. This trend is very beneficial for both children and divorcing families, and I expect the trend to continue. As with any significant change in the legal system, this one has consequences for lawyers and their clients that may not be obvious, because the cause and effect are so distant in time and challenging to discern.

In short, the fewer the number of hearings or deposition appearances by the parties, the more important each appearance becomes in determining the final outcome of the case. In the old days, lengthy litigation meant multiple hearings, sometimes repeated depositions, and then a final trial with a full day on the stand for each party. Generally, that meant a terrible performance by a party at a temporary hearing would be separated by a year or more from the final trial, giving the judge plenty of time to forget the first performance or to explain it away to "nervousness" or "stress". Those days are gone.

Today, a temporary hearing may be the only court appearance a party makes during a divorce or custody case. Depositions are unlikely to be seen by the judge or jury, leaving the temporary hearing performance of the parties of increasing importance for judicial decision-making or for negotiation leverage. Consequently, the importance of witness performance early in the case increases as the length of divorce litigation declines.

What hasn't changed though, is what makes witnesses effective.

1. Well prepared witnesses don't look coached, they look confident and calm.
2. Well prepared witnesses are responsive to questions because they understand the rules of evidence.
3. Well prepared witnesses give answers that are brief and clear.
4. Well prepared witnesses tell stories and give examples and avoid making judgments.
5. On cross examination, well prepared witnesses answer "yes" "no" or "I don't know" and do NOT try to explain.

These characteristics of effective courtroom communication have only increased in importance as the number of opportunities to testify decline. In courts where hearing times are increasingly limited, the need for intense preparation and crisp performance increase exponentially.

Due diligence requires that attorneys give clients the tools they need to compete effectively in the legal arena where most clients have NO experience and many unhelpful tendencies to unlearn. There is no substitute for effective, professional preparation, and the need is growing daily. Delay disadvantages both attorney and client.

Tuesday, July 29, 2008

How experts predict whether couples will divorce

Dr. John Gottman, founder of the Gottman Institute in Seattle, has emerged as a leading expert in the understanding of marriage dynamics and in predicting divorce. After more than 25 years of research and therapy with married and divorcing couples, a number of basic patterns in how married couples interact can be used to predict divorce (in the absence of change in these patterns).

First, there are two periods in married life when the risk of divorce is highest:
• After 5-7 years of marriage when conflict is usually highest
• After 10-12 years of marriage as a result of lost intimacy
It should be noted that marital conflict often increases when a baby arrives, which usually happens during the first few years of marriage (see bullet one above). After the first child is born, 40 to 70% of couples report significant declines in satisfaction with their marriage. So, a period of marital dissatisfaction is the norm after the first child is born, and in the absence of malignant interaction patterns, does NOT necessarily lead to divorce . (Remember, most unhappiness is temporary.)

The process that leads to loss of intimacy takes longer to result in divorce, and Gottman's research has identified the malignant interaction patterns that DO predict divorce. These are:

• A one to one ratio between positive and negative interactions (for happy couples the ratio of positive/negative interactions is 20 to 1)
• Mutual criticism (personal attacks on character not complaints about behavior)
• Defensiveness (“no I didn’t”, “yes but…”, “let’s talk about what YOU did…” or other denials of any personal responsibility)
• Stonewalling (refusing to talk in order to avoid conflict)
• Contempt for the partner (eye rolling, sarcastic humor, mocking)

Of the last four factors, those Gottman called the “four horsemen” (of the Apocalypse), contempt is the worst.

Here are some other findings from the research by Dr. Gottman:
•Conventional wisdom says it is not a good idea to “go to bed angry”. Gottman discovered that “flooding” – a physiological phenomenon triggered by emotional conflict — leaves people’s heart rates too high for them to clearly concentrate on the conversation at hand. He found that taking the time to calm down before finishing an argument is more likely to help couples stay close and connected.
•He learned that couples therapy with battering couples actually makes things worse for the woman—not better—another significant departure from the conventional wisdom. Partners both need to get individual therapy.
•It is extremely beneficial for both parents to express their own emotions, and it is especially important for fathers to express their feelings—especially sadness. This is critical for helping children develop "emotional intelligence",which is a better predictor of success than IQ.

The Positive Divorce bottom line

If your relationship is not overwhelmingly positive in your pattern of interactions with your partner, but rather is characterized by Gottman’s “four horsemen” of criticism, defensiveness, stonewalling, and especially contempt, your odds of being divorced are more than 4 out of 5.

If you want to stay married, you both need to change the way you interact.

If you are in the process of getting divorced, now is the time to begin learning new ways of interacting with your intimate partner (current or future) to change the outcome of your next relationship. Use this opportunity to learn to identify and change your contributions to the interactions that poisoned your relationship, so that history doesn’t repeat itself. (The odds of a second divorce are VERY high for once-divorced people.)

Learn about yourself, change your own intimate behavior, and make your own future better.

Copyright 2008 Kevin Karlson All rights reserved.

Sunday, July 27, 2008

Client request--Video conferencing/telephone consults

After more than 25 years of working in a traditional face-to-face conference room setting, technical improvements in video conferencing technology now make desktop video conferencing a viable method of service delivery.

As with the normal consulting process, a contractual relationship with the client's attorney as a "consulting expert" is necessary to maintain the attorney-client privilege in discussions with the client.

For more information about video or telephone consultation, contact Dr. Karlson:

Phone: 972.839.2394
Email: kevinkarlsonjdphd@swbell.net

Wednesday, July 23, 2008

Divorce myths exploded #1: My spouse is a jerk, I will get everything

For reasons not altogether clear to me, the idea that “my spouse is a jerk, I will get everything” remains a widespread and mistaken belief among women (and a few men) seeking divorce. Whether you live in a community property state, like California or Texas, or in one of the other 48, judges in divorce cases rarely deviate very much from a roughly equal split of the couple’s assets in a divorce.

In my experience in hundreds of cases, property division of 55/45 is about as good as it gets for the "innocent" spouse, even in cases where the other spouse has been unfaithful, abusive, or both. Judges just don't punish unfaithful spouses, especially men who have been primary bread winners, by a grossly unequal property division in a divorce, even though many divorcing spouses believe that such a ruling would be "fair" or "justice".

As a consequence of this mistaken belief in the eventual outcome of the divorce litigation, many women spend an inordinate amount of time and money to document the extent of the indiscretions. As they describe their motivation, it is primarily in hopes of persuading the judge to “punish” the unfaithful spouse through a “90/10” property split in favor of the injured spouse. Regardless of the value of the marital estate, up to billions of dollars, I know of NO case where such a punishment has been meted out by a divorce court.

Any competent attorney and the financial expert he hires will attempt to document how much of the couple’s money was spent financing the affair, and will ask the court to reimburse the injured spouse for those expenses, before the court divides the marital estate in a final decree. While the total expenses for these extramarital recreational activities may reach into the thousands of dollars, it never reaches a number which represents a significant percentage of the couple’s assets.

The Positive Divorce bottom line: bad conduct by a spouse MAY move the court to divide the marital estate 55/45 in favor of the “innocent” spouse, but that’s about as far it is likely to go.

So, have reasonable expectations about how divorce courts divide property and be prepared to settle when your lawyer tells you the offer is as good as you can reasonably expect.

Develop a vision for your financial future based on those realistic expectations for your starting point, develop a strategy for building on it from there, focusing on factors YOU can control.

Positive Divorce means accepting the challenge of being in charge of your own financial life again, and building on the opportunity to start a new and more prosperous life.

Friday, July 11, 2008

What qualifies me to write about divorce?

Simply put, I am the most qualified expert on divorce you’ve never heard of. I have devoted my professional life to working with divorcing people, and have been involved in one way or another with thousands of them. Literally NO one has as much experience with as many aspects of divorce and divorce recovery as I have, and now I want to share that experience and the lessons that I have learned with you.

Here’s a list of my qualifications for writing about the legal and psychological aspects of divorce, and for talking about divorce recovery:

• PhD in clinical psychology from UT Southwestern Medical Center in Dallas (1983)
• JD in law from Dedman School of Law at Southern Methodist University in Dallas (1984)
• Contributing author to an award-winning psychiatric/psychological evidence book
• Adjunct faculty in forensic psychology and psychological evidence--8 years
• Co-author of custody evaluation system (UCCES published by PAR, Inc.)
• Co-author of a parenting book (Loving Your Children Better by Nolo Press)
• Co-facilitator of Divorce Recovery Workshop at NCC in Dallas-8 years
• Co-convenor of divorced singles Sunday school class
• Invited presenter to Texas Academy of Family Law Specialists Trial Workshop-10 years
• Invited presenter to Texas Advanced Family Law Course- 2 years
• Former member of American Psychological Association Committee on Practice and Professional Standards (setting child custody evaluation standards)
• Former lay member of Dallas County Bar Grievance Committee
• Former Chair, Dallas County Psychological Association Ethics Committee
• Psychotherapist to divorced/divorcing clients-10 years
• Custody evaluator-10 years
• Litigation consultant in hundreds of divorce/custody cases--25 years
• Certified in Collaborative Divorce—member of Collaborative Law Institute of Texas

The point of that list is that I have been involved in divorces and divorce litigation as a court-appointed expert, as a therapist, as a law clerk to a nationally recognized divorce lawyer, as a marriage counselor, as a consultant to lawyers and their clients, as a facilitator of divorce recovery workshops, and as a friend to divorcing people. Last, but not least, I am divorced myself.

Seven Secrets to Peak Performance

Seven Secrets to Peak Performance During Divorce Litigation

INTRODUCTION Stress is a direct result of a person being focused on, and trying to control the "un-controllable" external forces and events in their divorce (i.e., judges, tactics or stunts of the other party, economic or business conditions, reactions of friends and family, etc.). When a person focuses on these uncontrollable external forces, he/she is more likely to experience the high stress-related symptoms and the resulting questionable thinking and judgments that can follow. Here are some ways to cope with the stress of litigation more effectively.

HAVE A PERSONAL VISION THAT IS NOT CONNECTED TO THE OUTCOME OF THE LITIGATION The biggest challenge for people involved in divorce is to stay focused on what matters to them personally and to avoid becoming trapped in the daily chaos of the divorce/litigation process. Litigation always ends (15 months seems to be about average for divorce litigation in the US). In the meantime, remaining connected to the things that provide real meaning to life and committed to something bigger than and outside of one’s self is a critical component of successful coping.

UNDERSTAND THE STRESS/PERFORMANCE CURVE Divorce is stressful and requires additional energy and attention not needed during less stressful times. This is not the time to “relax”, but it is a time to understand that being either too “relaxed” or to “hyped up” can interfere with peak performance. The graphic illustrates the relationship between stress and performance. Notice that peak performance is in the middle, so the goal is to use your body’s natural responses to maintain levels of stress that are neither too high nor too low. Regular routines, regular exercise, and good nutrition contribute to the ability to operate at peak levels.

LEARN COPING SKILLS THAT HELP TO MANAGE STRESS SYMPTOMS Here are the strategies that have been proven to lower your stress symptoms.
• First have a regular daily routine that includes 8 hours of sleep and regular times for going to bed and getting up and stick to it (A disrupted sleep schedule for one night lowers your body’s ability fight infection by more than 50% for the following day).
• Second, walk or do some aerobic exercise for 30 minutes every day (It will take your body more than two hours to calm down after this so don’t exercise right before bedtime).
• Third, eat more fruit and protein and few carbs a minimum of three meals and preferably 5 smaller meals per day (but none late in the evening).
• Finally, spend 15-30 minutes per day sitting quietly in a chair in a quiet room and focus only on your breathing (or listening to a relaxation tape). All of these strategies will improve your performance by increasing your stress tolerance, and the effects are cumulative-the more things on this list that you do, the greater the benefit.

LEARN HOW TO BE GRATEFUL IN THE PRESENT One of the natural and unavoidable effects of stress on every human being is a narrowing of perceptions- “tunnel vision” that can make the stressful situation appear to consume the entire world. The anti-dote to this tunnel vision is a constant and intentional focus on a daily “gratitude journal”. This means making a written list of the five things in life that you are most grateful for AT THIS MOMENT. For many divorcing people, first on the list is their children, but the list is different for each person. An intentional focus on the good things in life counteracts a world of temporary if overwhelming situations by reminding us of the more important and enduring parts of life.

MAKE TIME TO PLAY AND HAVE FUN The surest way to perform poorly, during divorce or not, is by being too serious. Peak performance in everything comes out of having fun. While the circumstances of divorce make having fun a bit more challenging, they also make having fun more important. Many people immediately eliminate recreation when they get overwhelmed and frantic, and report that they “don’t have time for anything fun”. Peak performance depends on giving your body and mind a break; make time for fun.

SEPERATE SELF-WORTH FROM PERFORMANCE Whether in marriage or divorce, you are NOT defined by your successes nor by your failures, but rather how you handle both. Learn to separate your value as a person from your performance at the same time that you learn to get better at handling both success and failure. When your personal worth is on the line for every decision you make, you are making a difficult situation even more challenging by increasing your own stress level. Give yourself a break and remind yourself of your inherent value regardless of your performance. You’ll feel better and you will do better!

FAKE IT TILL YOU MAKE IT Practice does not make perfect, perfect practice makes perfect. Practice living life like you want it to be, even if you can only do it for a few minutes at first. Focus on what you want for yourself, your family, your career, your home, your relationships. Most people are much more resilient than they give themselves credit for, so focus on your track record for bouncing back to boost your confidence that you can succeed.

In contrast to peak performance in athletics, peak performance during divorce holds the possibility of being transformational in a way that no other life experience can be. Because divorce dissolves so many of a person’s life structures and expectations, it creates an opportunity to rebuild them in a new and better way that can lead to a much happier and more satisfying life. Seize the moment!

Tuesday, March 25, 2008

Managing the Needy Client--Tips for Lawyers

In an earlier post, I outlined the pattern of the needy woman-disengaged man divorce. What follows are strategies for managing these clients to minimize the stress that most professionals experience.

For the needy (usually woman) client:

What they communicate:
Catastrophic expectations
Black and white thinking
Need for constant contact and reassurance
Impulsive decisions and poor judgment

What to do:
Call mental health professional
Think gray
Build trust, be consistent
Take threats seriously
Provide predictable, limited access to you or your assistant
Be calm,
Avoid surprises

Let me explain a bit about each of these "to dos". Since most of these women either already have therapists or need to be in therapy, the first call you should make is to the woman's therapist. You want to know what the presenting complaint was, how long therapy has been going on, how often the patient has talked about or attempted suicide, whether she is on anti-anxiety and/or anti-depressant medication and how much, how often she is seeing the good doctor, and how therapy is going.

"Think gray" means intentionally look for the exaggerations and distortions in the story your client is telling, and ask about the "other side" of the story. Few men are as monstrous as these women describe them (though some are cruel and abusive), and few mothers are as virtuous as these moms describe themselves. Ask these women to describe the "good dad" or "good husband" characteristics of their spouses, and they frequenty can find nothing good to say--this is a confirmation of the black and white cognitive style that traps these women in a world that is either "all good" or "all bad". Help the client to practice thinking both good and bad at the same time.

Because these women are so emotionally vulnerable, they personalize everything that happens, and much like young children, believe that they are the cause. Forgetting to return a phone call, being late for a meeting, or not taking their (20 times per day) phone calls will be interpreted by the client as "I am a bad person" and can easily turn into "I have a bad lawyer who doesn't care about me". For these women, regular, scheduled and frequent but short meetings (like every week but no more than two weeks) is important to build trust and get the client to confide in you. Otherwise, you will certainly be unpleasantly surprised by what you learn from opposing counsel. If you don't have time to do this yourself, delegate the task to your legal assistant and step in when the legal process demands it, but someone needs to maintain regular but limited contact with these clients. Don't promise what you can't deliver, and when you promise, do what you say you will do.

True borderline personality disorders make suicide attempts much more frequently than any other diagnostic group, and because their mood swings can be so severe, they can go from OK to suicidal in a flash. Consequently, take ANY discussion of suicide seriously, and make sure the therapist is on top of the situation. These women also make a number of suicidal gestures too, but a miscalculated gesture, designed to get attention and communicate helplessness can get out of hand and turn into a tragic and fatal event.

The best way to keep these women on an even keel is to be calm yourself. They are extremely sensitive to the moods of others and will react to them without awareness or self control. The more calm you are, the more calm the client will be.

Because of their limited ability to cope, surprises are NOT a good thing. Keep the client informed, in person when possible, and by phone if necessary, and then follow up with CYA letters. Bad news about the case will often NOT be heard and retained the first time, so be sure to confirm that your client heard you correctly by having her summarize it back to you. You will be astonished at the differences between what you said and what she heard, so be prepared to repeat and clarify her distortions and misunderstandings.

These strategies will help your client to cope and will make your job of representing her much easier. These clients require a greater time investment in order to provide adequate representation, so plan for more time and YOU be in charge of your time. Your client will thank you for it after the case is over.

Monday, March 24, 2008

Needy Woman--Disengaged Man Pattern

The needy woman-disengaged man is probably the most volatile and contentious pattern that I have seen in more than 30 years of dealing with divorcing couples. These couples are far more likely to litigate, and although they all eventually get divorced, the legal divorce is seldom the end of the conflict. What follows is a brief description of the individuals, followed by a summary of how the divorce process unfolds for these unfortunate people and their children. It is important to remember that "it takes two to tango" and to a large extent, these patterns require both spouses in order to play out the drama. The more that each partner fits the individual patterns described below, the greater the chaos, and the more closely the divorce will follow the "worst case" scenario.

The most visible partner in this scenario and the likely "identified patient" is the woman. She is likely to be attractive, bright, sociable, well-dressed, articulate, and frequently insightful about her husband and his motivations but blind to her own. These women usually make a good first impression, unless they are having one of their frequent "melt downs"--then they will be anxious, depressed (even suicidal), irrational, and even paranoid. Logical thinking will be a challenge, and it will be hard for them to learn about the slow and confusing legal process, so they will be a difficult client to manage.

Emotionally, divorce represents the realization of the greatest fear of these women-being abandoned. These women will develop rapid and intense attachments to lawyers and mental health professionals, and will barrage them with phone calls and emails with little recognition of the impact of their behavior on others (just like in the rest of their lives). They will appear to be remarkably helpless and unable to follow through with tasks related to their lives or their divorces, despite the outward appearance of competence and success that may well be apparent in their social or professional lives. These women are frequently misusing either drugs or alcohol or both, and are highly addiction prone (it could be food, sex, caffeine, xanax, or wine). They have a very "black and white" view of the world, and readily split people and events into either "all good" or "all bad" categories, and are rarely able to be balanced and objective.

As mothers, these women tend to be overly involved ("enmeshed") with their children or inappropriately disengaged. When there is more than one child, both patterns could be evident, with a "good" child and "bad" child ("just like his/her father"). Moms frequently have real difficulties being separated from their children, making visitation very challenging, and with mom distorting or exaggerating the bad experiences of their children when visiting dad. This separation anxiety is frequently evident to the children, who often express the need to "take care of" mom or just act out and complain about dad to a degree that is not supported by the facts as a way to be loyal to mom.

Many, though not all, of these women meet most or all of the diagnostic criteria for the DSM-IV personality disorder "Borderline Personality"(BPD). Many mental health professionals, knowing that they are likely to be deposed or called to testify in a divorce, will avoid diagnosing BPD because of the stigma attached to this diagnosis. BPD is difficult to treat, takes 2-5 years of twice per week psychotherapy, and has a poor prognosis without treatment (chronic "stable instability" with vulnerability to recurrent depression and anxiety and heightened suicide risk). Many less well-trained mental health professionals won't recognize the pattern at all, and will naively support the exaggerated and distorted claims of mistreatment made by many of these women.

The men in this drama may be disengaged for a number of reasons, but they will almost always appear to be quite distant and emotionally uninvolved by the time of the divorce. Many times the men have filed for divorce, although a substantial number will be the respondent after the wife discovers some infidelity. These two sub-groups of men are quite different in their outward appearance and emotional makeup. First, the ego-driven husbands.

These men are smart, successful, extremely self-confident, and almost clinical in their approach to divorce. Many are executives and medical professionals and high profile community figures. They can be both calculating and cruel in their treatment of their spouse and children, and frequently quickly replace the wife with a "newer model". Their capacity for empathy is limited or absent, and they will treat everyone they deal with a replaceable commodity. Many of them have had one or more affairs with secretaries or assistants, or like Governor Spitzer, used high price escorts.

Ironically, these men share the same black and white thinking style as their spouse, and will find it hard to be objective about their now "worthless *****" of a wife. While their thinking is less impaired than that of their wife, their judgment is usually equally poor, and they can act in remarkably thoughtless and self-defeating ways because they believe that "the rules don't apply" to them, and that they won't get caught or punished.

These men probably meet some or all of the criteria to be called "narcissistic personality disorders (NPD)" in DSM-IV terms, but they will NOT be in treatment nor interested in it. Because they sincerely believe in their own superior intelligence and perfection, therapy is a joke to them.

The other group of disengaged men is more healthy than the ego-driven group, but nonetheless emotionally disengaged. These men usually make impulsive and poorly considered commitments to marry the needy, dependent, borderline women as a way to avoid being alone. They are usually quiet, smart, conforming men who are attracted to the charismatic, extraverted persona that these women present when they are "on the market". Usually, the men describe how their wives changed overnight once "the deal was sealed", and they are reluctant, regretful participants in the divorce process, not the "take no prisoners" litigants like the ego-driven men. After many unsuccessful attempts to work out compromises with these unstable and uncompromising women, the men withdraw from the wives out of frustration and in self-defense until they decide they have had enough.

The classic "War of the Roses" divorce scenario is played out between the borderline woman and the narcissistic man. Allegations are exchanged without consideration of the consequences for the children, and actual parental alienation--active attempts by both parents to smear the other parent and to enlist the children in the conflict--are the norm. Allegations of abuse or neglect are also the norm, and sometimes are true (the base rate for truthful abuse allegations in divorce cases is under 5%). Husbands almost always have control of the money in these relationships, and use the children as leverage to minimize their financial exposure in the final settlement. The women frequently want to use the legal system to extract "justice" for the behavior of their husbands, and make unwise decisions to prolong the litigation and thereby remain negatively engaged with the husbands. Husbands frequently accuse the wife of being "crazy" or "unstable" and a danger to the children, even though they have usually been uninvolved as parents prior to the divorce. Ironically, both spouses are in some respects "right" in their claims about the other, although the exaggeration and hyperbole makes both stories hard to believe.Litigation is usually protracted and needlessly expensive, and terminated in some kind of "lose-lose" settlement agreement for both property and custody of the children.

The big losers in this drama are the children, who usually end up spending more time with mom and never establishing a good connection to dad, even if he faithfully exercises visitation. Conflict between the parents usually continues throughout the child's life, leading to emotional behavioral problems, and and as the research shows, handicaps the children in their ability to form intimate relationships as an adult.

Discussion of the other patterns to follow.