Elusive Justice

One Attorney’s Pursuit of Justice

Archive for November, 2006

Temporary Custody Not Modification

Posted by elusivejustice on November 25, 2006

I have no idea how many unsuspecting parents have been caught in a temporary custody trap but it appears that the Kentucky Supreme Court is providing some much needed clarification.  In Crouch v Crouch, 2005-SC-0761-DGE (September 21,2006)(To be published) a parent called up to active duty signed an agreed order giving the ex-spouse temporary custody of their child.  When she finished active duty and tried to regain custody, the Circuit Court essentially treated that Agreed Order granting Temporary Custody as a custody modification and used a best interest of the child standard and the parent who originally had permanent custody lost.

I recently ran across a very similar situation where a parent hit a rough spot and agreed to a temporary custody order so the child could stay with the ex-spouse for a short while.  The circuit court refused to vacate the temporary custody order without meeting the standard for a custody modification because they viewed the Agreed Order as a modification.  Since the divorce was this same year, the standard she would have to prove was that the child’s well-being was seriously endangered - a rather monumentous task. 

Fortunately, the Supremes recognized in Crouch that such agreements are intended to be truly temporary and so they are not modifications.  Instead, the court should look to the agreements and determine the intent of the parties.  Once the ‘contract’ is achieved, custody should revert back to the permanent status.  I just hope Circuit and Family court judges become aware of the decision fairly quickly because otherwise, unsuspecting parents who are trying to work cooperatively are signing away their permanent custody/residential parent status.  This decision corrects that injustice.

Posted in Family Law, Uncategorized | 2 Comments »

Happy Thanksgiving!

Posted by elusivejustice on November 22, 2006

I hope everyone has a fun holiday!

Posted in Uncategorized | No Comments »

Can’t Live with Him (or her). . .

Posted by elusivejustice on November 21, 2006

The vast majority of marriages are barely breathing, even on life support, by the time one of the spouses calls an attorney.  This explains why nearly all family law practitioners immediately proceed to explain the process of divorce (dissolution of the marriage in Kentucky) and begin taking down information needed to prepare the petition.  There is rarely discussion of what alternative there are to divorce because the remedial steps of counseling or trial separations are notoriously ineffective. 

On the cynical side, some lawyers recognize that they can earn far more from divorce proceedings then from trying to counsel their clients in ways to repair their marriage.  Furthermore, a person who has decided to call a lawyer is most likely determined to see a divorce through and would just find a different lawyer.  So, I can’t blame an attorney for taking this approach. 

Despite all this, I believe there is a place for using a legal separation in place of a divorce.  Nearly all other attorneys percieve, with good reason, a legal separation as an expensive precursor to divorce.  In that view, it is wasted time and effort to work out a legal separation.  However, there are those couples that would opt for a legal separation, usually for religious reasons, if it were explained to them.

In Kentucky, there is very little difference between a legal separation and a dissolution of marriage.  The property is divided up and any income or other assets obtained after the legal separation is entered are no longer presumed to be marital property.  Child custody and visitation orders can be decided and entered with the same binding force as in a divorce.  The spouses can go their separate ways or take time to see if there is anything to salvage with the marriage.

There are really only two significant differences.  First, if you are legally separated you cannot marry someone else.  This is no real barrier for those with a strong religious conviction against divorce since they would likely view remarriage after divorce forbidden except under specific circumstances.  The other difference is that, under Kentucky law (KRS 403.230) either spouse can convert a legal separation into a divorce after one year of the entry of the decree. 

The latter difference prevents the legal separation route greatly more expensive than a divorce.  All the arrangements of the legal separation would carry forward and would not have to be re-negotiated.  Actually, in cases where at least one party is against divorce, a legal separation may be less expensive even if it ultimately is converted into a divorce.  The pressure and emotions accompanying divorces that fuel so many bad decisions and unnecessary hostility could be diffused with a legal separation.

There are marriages on the brink of death that can be resuscitated given enough time, help, and room to heal and legal separations should be explained to those seeking divorce as an alternative.

Posted in Family Law | No Comments »

When to Start You Own Practice

Posted by elusivejustice on November 16, 2006

Here’s a great post from Seth Godin’s Blog about when to start your own solo or small firm:

“When to start

  • The best time to start is when you’ve got enough money in the bank to support all contingencies.
  • The best time to start is when the competition is far behind in technology, sophistication and market acceptance.
  • The best time to start is when the competition isn’t too far behind, because then you’ll spend too long educating the market.
  • The best time to start is when everything at home is stable and you can really focus.
  • The best time to start is when you’re out of debt.
  • The best time to start is when no one is already working on your idea.
  • The best time to start is when your patent comes through.
  • The best time to start is after you’ve got all your VC funding.
  • The best time to start is when the political environment is more friendly than it is now.
  • The best time to start is after you’ve got your degree.
  • The best time to start is after you’ve worked all the kinks out of your plan.
  • The best time to start is when you’re sure it’s going to work.
  • The best time to start is after you’ve hired the key marketing person for the new division.
  • The best time to start was last year. The best opportunities are already gone.
  • The best time to start is before some pundit declares your segment passe. Too late.
  • The best time to start is when the new generation of processors is shipping.
  • The best time to start is when the geopolitical environment settles down.

Actually, as you’ve probably guessed, the best time to start was last year. The second best time to start is right now.”

Posted in Life & Law, Uncategorized | No Comments »

Confession: Good for the soul and your marriage

Posted by elusivejustice on November 16, 2006

I found this article on the Divorce Law Journal out of Louisville, Kentucky.  I think the therapists involved are tapping into some wisdom that isn’t new at all; rather, they are spiritual truths.  I would advise seeking the input of a trusted clergy or counselor before retroactively applying these principles though.  While honest disclosure is an element one should begin a marriage with and foster throughout, there are some circumstances where confessing a past trespass to the marriage would do more harm than good and another discerning person can help sort that out.  If your marriage is not currently built on such honesty, find help in moving it in that direction.

Honey, I’m Thinking of Having an Affair’: Therapists Advise Confessing Temptation
WALL STREET JOURNAL
October 26, 2006; Page D1
By SUE SHELLENBARGER
“Dismayed by a rash of affairs and divorces among acquaintances, Gloria and Bryan Mahan, of Cerritos, Calif., made an agreement before marrying each other three years ago: If either of them felt attracted to someone else, he or she would tell the other partner immediately. “I don’t want to be a divorce statistic,” says

Bryan, now 26.
When Gloria later found herself attracted to another man, as difficult as it was, she confessed that fact to

Bryan. He responded calmly, saying he appreciated her honesty. “That built a lot of trust for me,” says Gloria, now 24. The attraction quickly faded and her bond to
Bryan grew stronger.
An emerging trend in marriage therapy and education aims to head off one of the biggest risks in marriage: infidelity. Instead of waiting until after spouses stray and then attempting damage control, therapists and marriage educators are urging couples to build trust upfront by acknowledging the possibility of cheating and heading it off through explicit spoken or written agreements. Some couples are taking similar steps on their own.
AFFAIR-PROOFING A MARRIAGE
To guard against damage from affairs, experts suggest couples:
• Acknowledge the risk of an affair occurring
• Discuss circumstances that might pose a risk
• Agree to talk about temptations before acting
• Disclose any affairs promptly
• Agree not to counterattack if a spouse strays
• Learn to ask, give and receive forgiveness
This can require painful self-disclosure. Andy Laurents, who has such an agreement with his wife, Patti, says several women on a previous job made advances toward him — “I’d be lying if I said I wasn’t intrigued.” Each time, he says, it was difficult “to look at my dear wife and tell her ‘I’ve been attracted to someone else.’” But he did so, and that discipline immediately shifted his focus back to his wife, where he wants it to be, he says. Both partners say their pact has fortified trust and strengthened their happy nine-year marriage.
The agreements are part of a broader emphasis on trust-building in marriage. In a pop culture ridden with images of infidelity and marital mistrust, experts are using a variety of techniques to “super-glue couples together,” says Diane Sollee, founder of SmartMarriages.com1, a marriage-education Web site. “It’s a huge crisis right now. Twenty- and thirty-somethings are just terrified. They’ve seen the divorce rates and they see what’s happened to their parents, and they think they can’t trust” prospective spouses.
In Washington, Barry McCarthy, a psychologist in private practice and a professor at American University, gives couples a two-page handout urging them to identify risk factors for an affair (such as drinking when apart), to agree to talk before acting on any extramarital desires and, if a partner does stray, to disclose that within 24 hours. “It’s the coverup that has the most negative impact,” Dr. McCarthy says.
At Colorado retreats called “Love Your Relationship,” run by a Boulder, Colo., organization by the same name, couples are taught to acknowledge the risk of infidelity and to build skills that help “affair-proof” their marriages, says Howard Markman, an author who teaches the seminars, and co-founder of PREP, a marriage-education program. Separately, John Van Epp, a therapist and author of “How to Avoid Marrying a Jerk,” has trained 500 Army chaplains and several dozen private therapists in the past year on how to help people pick trustworthy partners and to build strong bonds with their mates.
Much of this work is grounded in “attachment theory,” a body of psychological research on how humans bond to one another starting in infancy. Working on the knowledge that many people enter marriage with an impaired ability to form intimate attachments, therapists aim to help couples consciously construct a new foundation for trust. Dr. Van Epp uses a “relationship attachment model” — a graphic tool that looks like a five-dial stereo-system equalizer. Each sliding vertical dial symbolizes one of five building blocks of attachment: knowledge about each other’s past and present lives; trust; mutual reliance on each other; commitment; and sexual intimacy.
When all five ingredients are present and in balance, Dr. Van Epp says, marriages tend to be strong. Couples are taught to evaluate their relationships on each of the five dimensions of attachment using a cardboard model of the tool.
The Army has used chaplains trained by Dr. Van Epp, the PREP program and others to instruct 25,000 soldiers in the past year in a marriage-education program called “Strong Bonds.” Mindful of an estimated 60% divorce rate among military couples, officials aim to help couples sustain trust through deployments.
People are at greater risk of infidelity when they or their family members have had affairs, Dr. McCarthy says. One couple he counseled, who had actually met each other through an extramarital affair, agreed in writing that if either felt the urge to stray, they’d talk to each other about it first. They stored the accord in a safe-deposit file at home with other important documents, says Dr. McCarthy, co-author of “Getting It Right This Time.”
One bonus, couples say, is that telling your spouse about an extramarital desire tends to quash it. When Mr. Laurent talked with his wife about workplace temptations, he says, “all of a sudden, that power, that pull, was gone in a flash. When you shine the light on something, then the darkness goes away. It has no choice.”
As lay leaders of a couples’ group at their church, he and his wife urge others to be equally open, he says: “You can save yourselves so many heartaches down the road.”

Posted in Family Law, Uncategorized | No Comments »

“Our Endangered Values”

Posted by elusivejustice on November 15, 2006

I recently finished reading a book that really resonated with me.  I recommend it to Democrats and Republicans, Christians and those on other paths, for the perspective it offers on significant trends in the last several years in the relationship between politics and religion.  I especially appreciated his proposition that the separation of church and state is, in fact, a Christian value contrary to what some politically active religious figures propound.  President Jimmy Carter’s Our Endangered Values isn’t limited to that topic but discusses other trends in our government and international affairs in a thought provoking manner. 

Posted in Politics | No Comments »

Small Firm = Big Value

Posted by elusivejustice on November 12, 2006

It amazes me how high the operating costs are at mid-size and big firms and how low the profit margins.  As I reflect on my experiences with mid-size and big firms I can see why.  On average, for every two attorneys there is one secretary and one paralegal plus a number of runners, file clerks, and receptionists.  There are huge and incredibly versatile state of the art copiers and computers.  The offices are plush so as to impart the appearance of wealth and status to clients.  And, large amounts of money go for marketing. 

These arrangments work well as long as the attorneys are churning out 8 or more billable hours a day - it does not matter if the work needed to be done or not.  This is not quite as hard as it appears since one partner at a firm told me that he started out working 10 hours a day to bill 8 but now he could work 8 hours and bill 10. 

This is called “value billing” and it is not only tolerated but expected in the insurance defense industry.  One would spend 2 hours creating a motion for one client.  When a similar issue would arise, that motion would be revised in about 45 minutes but the 2 hours would still be billed (the motion had a value of 2 hours).  In exchange, the attorney bills his time at a lower hourly rate.  Exactly how this saves money remains a mystery but I suppose the hourly rate draws more attention than the number of hours.

On the plaintiff side, contingencies of 40% or 45% are now standard with the fees and expenses coming out of the plaintiff’s award after the contingency is paid.  I just wonder how many plaintiffs would pursue their claim if they knew they would end up with barely more than they started with after liens are satisfied.

A small firm can do the same or better quality of work.  This is because we can keep those operating costs to a bare minimum.  This frees us up to focus on the quality of the product rather than churning out hours for the sake of meeting some annual requirment.  We can bill for only the work we actually do and we can set more reasonable contingency fees.  Personally, I prefer starting with a low percentage for any settlement prior to filing a petition and graduate to a more traditional percentage if it goes to trial.

Lastly, we do not have to spend a fortune on marketing because the quality of work leaves clients confident to recommend us to others. 

Posted in Solo - Small Firm Practice | No Comments »

Insurance: Barrier or Boon

Posted by elusivejustice on November 12, 2006

I have had a number of interactions recently where insurance played a prominent role.  These events left me pondering whether insurance in general has begun to make justice more elusive rather than further justice by compensating injured individuals and indemnifying losses. The best answer I can come up with is “yes and no”. That is, some companies (hopefully only the fringe) have crossed that line.

The most personal of these events has been my attempts to replace my health insurance with a plan coupled with a health savings account (which was promised to be the solution for many hard to insure folks).  For a man just hitting his stride in life (my euphemism for middle-age), I am in quite good health.  I work out, have never had or required surgery, don’t smoke, and have no significant health issues other than being a little robust-sized (my euphemism for “big boned”). 

Despite this, I have been precluded from getting this new health insurance because my HDL (good cholesterol) was low in 1998 - eight whole years ago!  My overall cholesterol was fine and the LDL (bad cholesterol) was in the healthy range.  In retrospect, getting my cholesterol checked at all may have precluded me from being insurable on these HSA private plans now.  It struck me in a very personal way how insurance companies attempt to only insure those persons or entities that don’t really need their coverage. 

I can’t really argue with the logic.  Their profits will be maximized by selling coverage where they will least likely have to pay out significant sums.  To that end, elaborate applications and unfathomable contracts have come about that allow them to either weed out the naive and honest or refuse to pay claims on those that fibbed in the application process.  Based on how much I have paid for health insurance in the past and how little they have had to pay for my health costs, I would say that I would be a good investment for them. But, they only use the past to predict the future and what risks might lurk there.

A more concerning event occurred during my stint at an insurance defense firm. One of the carriers of professional medical liability insurance had one of the partners drive the new associates three hours each way to have lunch with some of the claims representatives.  It perplexed me as to why they would demand this day long (non-billable) trip before any of the new associates could handle their business.  Did they only want pretty people doing their work?  Was there some kind of secret blood oath involved?

The lunch was casual with very little actual business talk.  It dawned on me later, though, that the one message each of the representatives echoed to whichever attorney sat near them was how their company would spare no expense in pursuing any possible defense to coverage.  This insurer refused to ever settle regardless of how clear the negligence, causation and damages and they wanted to judge our reactions to this company line in person.

I hate to admit that I failed the test.  I failed it because they approved me to work on their cases.  I like to think that if I had realized up front what the meeting was about, and had time to figure out how to put my reaction into words, then I would have challenged this mindset even though it would have hastened my exit from the big firm world.  I think an insurance company selling policies promising to cover the medical professional, who is liable for damages, but that has no intention of ever paying without a fight, is unconscionable. 

I do understand insurers litigating cases where there are strong doubts about a breach of duty or causation.  I think they have a duty to their shareholders to protect against paying such tenuous claims.  But to refuse to pay up when those issues are only weakly debatable is a breach of contract.  I don’t mean a breach of the convoluted legalese designed to give the carrier maximum loopholes and the insured or third parties minimum protection.  I mean the basic contract of “We will cover you by paying the injured person when you slip up and you pay us thousands of dollars in premiums each year.” 

In avoiding this voluntarily assumed contractual duty, the insurance carrier shifts their costs onto many other parties.  The physician may not realize the cost to them of fighting out every claim until they have to give up a week of practice to prepare for and attend a trial.  They may also be unaware of the potential for a judgment in excess of their coverage.  The courts are burdened by the additional motions and trials.  The major loser is the injured person whose life is held in limbo for years while the tactics on either side slow justice down to a crawl.  The general, taxpaying public also pays because of the strain on the resources of the court but also because many injured persons must turn to Medicaid, SSDI and Medicare while waiting for the judgment. 

I want to repeat that I am not talking about the cases of outright fraud or where there was just a bad result despite the medical professional doing everything they could.  There are a number of suits brought because of bad results even in the absence of a breach of the standard of care.  I am speaking of the cases where negligence and causation can reasonably be attributed to the care given and yet the insurers balk at compensating the injured person.

I am also not speaking of the insurance carriers that do an excellent job of evaluating claims and participate in negotiations in good faith. Without these insurers, the costs of injury and loss would usually remain on the injured party because there would be no other adequate source of compensation. These insurers will engage in the process of mediation which can approximate a just result quicker with less expense than a trial.

Anyway - to bring this tirade to a close. How can we reign in the extreme companies and make them more accountable?  Do we need to nationalize insurance regulation?  Are there alternatives to traditional insurance that can put market pressure on these companies?  Some religious organizations are beginning to flourish that provide alternatives to medical insurance for members of their faith and I suspect the health insurance companies are taking note (see these articles http://ctlibrary.com/9928 and http://www.insurancejournal.com/news/southeast/2006/10/30/73618.htm).  These groups include Medi-Share, Christian Brotherhood, Blessed Assurance, and Samaritan Ministries.  There are likely others reflecting other religions.  Perhaps there are other alternatives as well.  Mostly though, I hope I (and everyone) can be more confident and quicker to challenge an extreme company line and encourage just resolutions.

Posted in Insurance, Life & Law | 2 Comments »

Hello world!

Posted by elusivejustice on November 7, 2006

So often we turn to the courts to right the wrongs of our lives.  This makes absolute sense because the law binds us together in our common pursuits in life of happiness and prosperity as well as lubricates the parts of this social engine to reduce conflict.  The law is our best estimation of the order that God would have for us.  Although we seek justice in our dealings, whether they be in business and contract or family relationships, we inevitably fall short of it.  This is true in individual relationships and also in the courts. 

This quest for justice has intrigued me as far back into my youth as I can remember.  “That’s not fair!” has oft been my battle cry as it has been for all of us at one point or another.  Finally, maturity and experience channeled that nearly primal desire for justice into a career as a counselor at law.  Rather than allowing the frustration of seeing so many unanswered injustices in the worldy keep me disheartened, I decided to make the pursuit of that elusive justice the bedrock principle of my practice of law and of this ongoing discourse.

Now that the attempt at eloquence is out of the way (eloquence being nearly as elusive as justice at times) I would like to introduce myself.  I am Gregory Napier and I am a licensed attorney in the beautiful state of Kentucky.  I would like to shamelessly but briefly promote the firm I am very proud to be associated with.  I recently joined the small firm of Troutman & Hays, PLLC, in Lexington, Kentucky.  Michael Troutman is rich with experience in litigation plus the business, transactional side of the law and an excellent mediator.  Tommy Hays, now primarily a full-time minister (www.messiah-ministries.org), brings experience in trial law both from the perpective of defense and from the plaintiff’s side.  To this mix I bring my background of working with families and conflict resolution.  With small firms recapturing the attention of the corporate world and remaining the cost-efficient choice for individuals, we offer a well rounded array of services.

I promise not to make a habit of that self-promotion and I also promise to offer practical information along with some humor and perspective on the practice of law - which I equate with the pursuit of that ever elusive justice.

Posted in Uncategorized | 1 Comment »