Lessons I Learned from My Parents: Part VII

In my last article from this series, I described how easy it is for love to turn to hate when a parent’s efforts to use their child as a pawn in order to “harm, injure or otherwise extract revenge” against the other parent doesn’t play out as they had intended. In my case, my father first caused me to transfer schools because he stopped paying my tuition at Brandeis University and essentially disowned me for refusing to completely and permanently sever all ties with my mother. Unfortunately, that was not quite enough punishment for my disobedience of his wishes. The next thing I knew, I found myself being prosecuted for a crime I did not commit. As I mentioned before, I was being falsely accused of criminal assault and battery against my step-mother. A very well-regarded criminal defense attorney by the name of Godfrey Isaac was retained by my mother to defend me in that matter. While the criminal matter was still pending, I found myself a defendant in a civil action filed against me based upon the same false allegations.

I very clearly recall the day I received a call from Godfrey Isaac and he explained to me that what occurs in court is more about perception than reality. He asked me if I had read the Los Angeles Times that day. I told him that I had not read it and asked him the reason for his question. He then explained that he had just gotten a criminal defendant acquitted of a crime that the defendant had in fact committed and that it was covered in a story in the paper. He then told me that although he knew that I was innocent, that his hands were tied because of arsenal of false evidence against me. He said that my only evidence to the contrary would be my own testimony and that I would not make a good witness because I looked so angry every time I said anything about my father or stepmother. He said that although I was clearly angry because of the false allegations against me, a jury would believe that I had committed the crime because of my anger for the way in which they treated me prior to the alleged incident. He therefore strongly advised me to plead no contest to the charge. He said that I would otherwise most certainly be found guilty of the crime, which would impact the civil action they had filed for damages.  A no contest plea to a crime is treated the same as an admission of guilt, except that it cannot be used as an admission of fault in a civil lawsuit.

The judge accepted my no contest plea and placed me on summary probation for three years. As a result, I was able to avoid jail time and no probation officer was assigned to supervise me. My attorney also made certain that he could have my record sealed as long as I did not violate the terms of my probation. After three years had passed without incident, my attorney returned to court to have my file sealed, which means that it is hidden from the public but is still on record.

Meanwhile, my mother and step-father somehow managed to get her homeowner’s insurance to cover the civil matter. To my dismay, the insurance company paid my father and step-mother the policy limits based merely upon the “evidence” against me. I was never asked to give a statement and our civil attorney never even met me.

I can’t even begin to describe how difficult it was for me to focus on my coursework while suffering such abuse by my father, step-mother and our system of “justice.” To this day, I don’t know how I managed to maintain my honor’s status in college and to graduate cum laude. Although I then decided to attend law school, it can be no surprise to anyone that I never actually intended to practice law in what I perceived as such a faulty system. However, I felt that I would benefit from learning more about our legal system, so that I could use my knowledge to help people and/or businesses to steer clear of any possible misuses. Moreover, not one of the law professors in whom I confided could be certain that I would ever be admitted to practice law because of “my background.”

When the time came for me to apply to take the Bar exam, I decided that I had no choice but to make full disclosure of both the criminal and civil matter. Both Godfrey Isaac and the attorney who handled the civil matter agreed to meet with me and help me to compose an explanation in the Bar application. Interestingly enough, as soon as the civil attorney saw me in person, he said that he had wished he had seen me before recommending that the civil case be settled. He said that just by looking at me and the way in which I am built, there was no way that I could have done what they had alleged. I must admit that after all I had been through, such a statement only made me feel worse about what had occurred. Nevertheless, the Bar obviously accepted my explanation of the situation because I was admitted to the practice of law. However, since no non-legal jobs were available to a recent law school graduate, I found myself essentially forced into practice law.

To say that my perceptions and the way in which I have always practiced law were deeply shaped by my personal experiences would be a grave understatement. We all have different tools in our “tool boxes,” based upon our personal backgrounds and life experiences. Some of the tools in my “tool box” were learned long before I ever attended college or law school. I really wouldn’t recommend acquiring tools in such a manner, but it sure has given me a very unique “lens to look through.” It has also given me my passion to help others not to suffer or cause others to suffer a similar fate. My personal nightmare gave me a unique perspective and I believe that my clients are the beneficiaries of the “lessons I learned from my parents.”

4 comments

  1. Ann Marie Termimi says:

    Mark,
    I can only imagine the assault you experienced as a young man. It was refreshing to learn that others have acknowledge the court system for what it is. Many years ago I worked for the family court system as the Family Court Therapist. In this position I witnessed many custody proceedings and the inner workings of the system as well as the various dances demonstrated by the players involved with the family. While I was grateful that I was able to introduce the court system to a family systems perspective, I was disheartened by the many parents who walked away disillusioned over the process and outcome. Parents expect justice. All to often they are disappointed. I continue my work with separating families in a private setting and often find myself assisting them overcome their disappointment and lack of confidence in the legal system while at the same time empowering them to take charge of their and their children’s lives. Yet, sometimes, depending on their dynamics, they want to pursue “their day in court”. I find myself, more times than not, disappointed in the outcomes as well. It is not a perfect system, but one in which we are at times forced to rely on. I continually attempt to find ways to work with it or around it. I am interested in how you come to terms with this reality.

  2. Ann Marie, most people believe that the only things that are certain in life are death and taxes. Not only did our parents’ litigated divorce destroy our family, but I had the “pleasure” of being the successor trustee and executor of my mother’s estate upon her death in 2005. Her ex-husband, who she had divorced 10 years earlier filed a creditor claim against the estate and gave me notice of his intent 3 days after her death. He knew she had Stage IV cancer and was dying and waited until after she died to file a claim because she could no longer defend against his outrageous allegations. I got to be front and center in that case and experienced what it feels like for a judge to re-write history in order to accomplish their desired result.

    I initially wrote about that in an article titled “Why I Am Determined to Help People Embrace a More Family Oriented Approach to Divorce and Family Law in General” (http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2012/April/Why-I-Am-Determined-to-Help-People-Embrace-a-Mor.aspx). I also touched upon it in my article titled “Parties’ Positions and the Mediation Process” (http://www.huffingtonpost.com/mark-baer/parties-positions-and-the_b_4054944.html).

    Unfortunately, I have ample personal experience regarding the VERY SEVERE flaws in our “justice” system. Try this on for size — the term “justice” is completely false and misleading when used to describe our legal system. Let’s add that to my list of things that are certain in life.

    The most recent example is Ryan Ferguson, who was found guilty and imprisoned for nearly 10 years for a crime he didn’t commit. If this can happen in criminal proceedings (where a person must be found guilty beyond a reasonable doubt), what do you think happens in all other cases (where the burden is basically that it is more likely than not)? By the way, I realized that there is also the “clear and convincing” standard, but all that happens is that the judge says that they applied that standard, but did nothing differently than apply the preponderance of the evidence standard. (http://www.cbsnews.com/8301-504083_162-57612048-504083/ryan-ferguson-update-mo-man-jailed-for-nearly-10-years-released).

    Each and every time I have found myself either directly or tangentially (as a child of divorce) involved in the litigation system, the painful realities of its flaws, limitations and destructive consequences have been very apparent. I do want to be clear that my opinion is not in any way tainted by my experiences as an attorney representing clients in court. However, I do tend to keep in touch with many of my former clients and I am well aware of the consequences they have experienced as a result of the litigation, regardless of whether or not they considered themselves the “prevailing” party in that litigation at the time.

    The distinctions between litigation and consensual dispute resolution are not theoretical when I am concerned. This makes my message extremely powerful and provides me with very strong skills as they pertain to managing the expectations of my clients.

    The legal system is supposed to provide “legal justice.” Even if it accomplished that result properly, it is a grave mistake to confuse “legal justice” with “fundamental fairness.” (http://www.huffingtonpost.com/mark-baer/the-grave-mistake-of-conf_b_3740933.html). Unfortunately, because of the type of “professionals” attracted to the field of law and the way in which judicial officers are selected and then appointed to particular courtrooms, the system is often not even capable of providing “legal justice.” I feel for those individuals who are unable to learn from the experiences of others that the last place you want to find yourself is in a courtroom.

  3. Kerrie Davis says:

    Thanks for sharing your story Mark. I will share my story so that you can better understand where I’m coming from the next time we disagree. To some extent my story echoes yours except that I was let down by a flawed ADR system rather than a flawed court system.

    In my mid 30s I started a new career as a teacher. One of my first posts was at a country school. From the beginning I did not like a coordinator because he wanted to dumb down the curriculum and publicly yelled at new teachers who asked questions. As discretely as possible I ignored his instructions and tried to diffuse conflicts between him and other teachers. I also complained about his bullying behaviours. Things continued for a year and I became a member of several committees that were making significant changes to the school. The deputy principal said I had leadership potential and asked me to show some of my work as an exemplar at a staff meeting. I didn’t tell the coordinator even though the work was from his subject area. This was wrong of me and I apologised for it when he started publicly yelling and swearing at me about it after the meeting. I was totally traumatised by this turn of events. According to the principal mediation was a necessary part of the grievance procedure and as the principal only she could mediate rather than an impartial mediator. The principal had no training in mediation and literally read the mediation instructions from the manual during the process. The consequence was that the coordinator apologised and I was put Performance Management for underperformance because apparently I had provoked the coordinator with my incompetence. Of course best mediation practice is that verbal assaults are often not suitable for mediation and require experienced mediators. I was not allowed to provide any evidence of my competence or suggest that the coordinator’s claims may be better explained by professional jealousy and fear.

    The coordinator increased his bullying behaviours and I became increasingly anxious to the point that I could no longer continue teaching. Under the workers compensation act I was entitled to rehabilitation, retraining or compensation, in that order. I was entitled to nothing if the condition pre-existed or if the injury was caused by reasonable action taken in a reasonable manner. Like most of my extended family I have suffered from depression since I was a teenager and will probably be on anti-depressants for the rest of my life. I have never previously suffered from anxiety and have psychological assessments showing that. Workcover also chose to believe that the principal’s actions were reasonable even though I had never before been given feedback of underperformance. Thus work cover denied my claim and I went to the workers compensation tribunal because I wanted rehabilitation so I could resume my teaching career.

    Under the workers compensation act, the tribunal uses mediation to resolve Workcover disputes. The lawyers on both sides had no training in how mediation works. Consequently, the lawyers did all the talking and agreed to share my complete medical records and employment records. I was annoyed that Workcover had waited so long to ask for the medical records as I was willing to provide them months earlier. I was also annoyed that my employment records did not consist of all the satisfactory work reviews that new teachers are required to complete each term with their supervisor but a letter from the principal with a list of unfounded allegations. On the basis of the medical and employment reports Workcover offered lump sum compensation. I refused to settle because the employment records were incomplete and the principal’s report was biased and untrue. I also suspected that the education department was trying to discriminate against me because I had a mental health condition.

    The dispute went to a higher court for “mediation”. It was here I experienced “hands off mediation” where the mediator convenes the parties but only meets with them at the end to sign the court orders. As my mental health could not improve staying at home fretting over my claim I returned to uni to study mediation and conflict resolution. I was extremely disappointed that my experience was so different to my reality, but I used the concepts I learnt to explore the issues of my case, test assumptions etc and finally brainstorm possible solutions to resolve the dispute. Everyone advised me not to refuse to settle because of the uncertainty of the result and the stress it entailed. (Under the legislation Worcover paid all the legal costs).on the basis of my brainstorming and in the face of Workcover’s and the lawyers on both sides refusing to mediate properly I decided it was in my best interest to accept the money and use it to fund my own retraining in conflict resolution.

    Am I bitter that my experience of mediation was so different from the ideal? Absolutely! It is for this reason that I am so vocal about mediation standards and checks. Mark, when I read stories like yours about your disappointment with the legal system I genuinely worry that people’s disillusionment with the legal system will be replicated in a growing disillusion with “mediation” because it is improperly practiced.

    Sorry for such a long post.

  4. Kerrie, thank you for sharing your personal story and how it impacted who you are today. I have the exact same concerns regarding both mediation and collaborative law.

    Let me quote from a Keynote Speech I gave in Detroit in 2012:

    “There is no requirement that family law attorneys have any training in Alternative Dispute Resolution. In fact, family law specialists, Certified by the California State Bar and most everywhere else, are not required to have any educational hours or training in Alternative Dispute Resolution. Mediation is unregulated in most places, including California. Thus, a person can practice as a ‘mediator’ without ever having received any formal training.

    A person claiming to be a mediator even though they had no formal mediation training is the same as a parent saying that they can teach parenting skills because they happened to have raised children of their own. The fact that someone raised their own children does not mean that they had good parenting skills and that they should be teaching others how to parent….

    Unfortunately, mediation is unregulated in most jurisdictions. Since I do not believe in reinventing the wheel, I am now going to quote from the Australian National Mediator Accreditation System Report (Sourdin, 2007) because the concerns apply equally well in the United States and elsewhere for that matter. ‘There is no uniform, comprehensive system of credentialing practitioners, enforcing standards or developing quality improvement strategies. There is currently no requirement that mediators have a level of competency that would satisfy the reasonable expectation of the parties. We must develop an accreditation system for family dispute resolution practitioners to ensure the provision of high quality dispute resolution services, and to recognize the professionalism of the sector. We must develop minimum standards of education, training and experience to satisfy the requirements for accreditation. Core concepts of consistency, quality and public protection are central to the development of standards. As one analyst has noted, ‘The absence of any structure of procedural or substantive rules, in a process conducted without direct public scrutiny, presents the real danger of harm from inept or unethical practitioners…. [I]n mediation much more than in any other dispute resolution process, the quality of the process depends heavily on the quality of the practitioner.’ (Sourdin, Australian National Mediator Accreditation System, 2007) ‘An ounce of prevention is worth more than a pound of cure’ means it is better to try to avoid problems in the first place, rather than trying to fix them once they arise. If we do not implement an accreditation system and otherwise regulate mediators, we are just replacing one problem with another. Don’t families deserve more?…

    As Collaborative Divorce continues to gain momentum, we need ‘quality control’ for the practitioners because not everyone is appropriately suited for the process and therefore do more damage than good. This is true for these entering the field merely because it is a growing market, those who are not self-aware that they are not collaborative, and those who mean well but do not hone their skills. We therefore need to have systems in place to address these problems.”

    (http://theworldofcollaborativepractice.com/?p=1160)

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