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Monday, November 11, 2013

The Appeal of Zeal

Jeffrey D. Brunson

Letterman or Leno?  That was the assignment handed out in my freshman year college English course.  I was to debate which late-night talk show host was better against another student. We walked to the front of the class and exchanged oratorical parries and deflections.  At the end of the carnage, my opponent said something to the effect of, “Hey man it’s not World War III; we’re just talking about late-night talk show hosts here.”   As my 12-year-old daughter says about everything, “Awkward!”   In my mind, I was passionately and zealously advancing my position.  To my fellow student I was creating uncomfortable conflict in regards to an issue that was just not that important and I should give it a rest.

This may come as a shock to some, but lawyers have ethical rules that govern their behavior.  In the preamble to the ethical rules it provides, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  (I.R.P.C. Preamble [2].)  A lawyer has an ethical duty to fight passionately for his or her client’s position.  Too often there is a stigma attached to a lawyer who is passionately representing his or her client.  A lawyer’s primary focus should not be to make opposing counsel happy and comfortable, but instead to put his or her client in the best position possible.

Frequently, lawyers use their passion not for advancing their client’s position, but rather for forcing their client to settle the case.  While settlement may be a good result in some instances, the desire to settle should not dominate a lawyer’s efforts in handling a case.     

In a system designed to deal with conflict, conflict is going to happen.  Combatants in the legal arena should be equipped to deal with this conflict and not allow perceived discomfort to prevent them from zealously advancing the cause.   Even judges at times can seem uncomfortable with passionate representation.  A lawyer must be ready and willing to step into these situations.  In fact, a good lawyer should be causing these “awkward” situations. 

The lawyer one sees at church on Sunday should not be the lawyer one sees in the courtroom.  I am not suggesting that a lawyer should be running around the courtroom screaming “Did you order the Code Red?!” but rather that a lawyer should be passionately fighting on his or her client’s behalf.  At times the comment, “he cares a little too much about that issue” is used to characterize someone who is overly excited about a subject.  A good lawyer should “care a little too much” about his or her client’s case.

Zealous representation is not only okay; it should be desired and applauded.  A lawyer who seems checked out, distracted, or disengaged is not a lawyer worth hiring.  On the other hand, a lawyer who treats your matter like it is World War III is one worth having on your team.  A zealous advocate may not be able to solve all of your problems, but, at a minimum, should at least be able to convince you of the incontrovertible truth that what was true in my freshman English course is still true today – Letterman is better than Leno.

Jeffrey D. Brunson at 9:49 AM 1 Comments | Post a Comment
Saturday, January 21, 2012

Indivisible Division

G.I. Joes are awesome.  I spent countless hours growing up reveling in their awesomeness.  Sure one can line them up and fight, but there are so many other possibilities for diversion with the small army action figures.  My favorite was creating opposing football teams with them and then simulating the games complete with play-by-play by me (a fact that was not mentioned to my wife until well after we married).  I lined up the Joes according to their respective strengths and weaknesses.  For example, the ninjas, Snake Eyes and Storm Shadow, would be wide receivers because they were blazing fast and had ninja-like moves.  The two ninjas were prolific scorers and enjoyed many game winning touchdowns.  The attachment to my Joes lives on as demonstrated by my continuing to purchase Joes for my own son despite the fact that they sit dormant, gathering dust in his room.  I loved my Joes.  They were prized property.  I enjoyed them long after it was socially acceptable to do so.

In addition to contributing to the growing evidence that I am a complete and total dork, my affinity for G.I. Joes demonstrates that people attach different values to different things.  Every attorney who does divorce work has a story about the crazy things people fight over.  The phrase “fighting over the silverware” may come to mind.  People end up spending significant resources fighting over property that has high sentimental value but low monetary value. 

The law regarding marital property in Idaho is outwardly simple.  Idaho is a community property state.  Community property is any property obtained during the marriage.  Separate property is property brought into the marriage or property obtained during marriage by gift or inheritance.  For example, my G.I. Joes are my separate property because I owned them before marriage, but my wages are community property because I earn them during marriage.  The community starts when marriage begins and ends with either a divorce or death. 

There is a common misconception that when couples separate the community ends.  There is no such thing as “legal separation” in Idaho.  The filing of divorce does not end the community.  The community does not end until the judge enters a decree dissolving the marriage.  Assets acquired after the filing of divorce (but before an official decree of divorce) are community assets and will need to be split up.  Unless there are compelling facts requiring a different outcome, the community property will be split 50-50 between husband and wife, and each will get to keep their own separate property.  If separate property becomes mixed with community property, then it becomes community property.  It is then left up to the party who mixed the separate property with the community property to prove the separate nature of the property.  For example, if one spouse uses his or her inheritance to pay for a kitchen remodel in the marital home, the inheritance is no longer separate property.

These rules all seem straightforward until someone files for divorce.  If the emotion is removed from the equation, a divorce is merely a business transaction.  Almost always, emotion is not removed from the equation.  Most do not go into a divorce thinking they are going to drag things out or be petty.  However, when faced with losing a prized possession, it is easy to lose sight of the big picture.  One is not being asked merely to split up his or her possessions; one is being required to give up the memories associated with those possessions.  It is not about giving up cheap, replaceable G.I. Joes; rather it is about being required to grow up and replace the certainty of the euphoria the G.I. Joes bring with an uncertain future. 

No one goes into a marriage hoping for a divorce.  If you are faced with such a situation, seek out those you trust, professional or otherwise.  They can help you decide if a battle must be waged and which skirmishes within the battle to pursue or avoid.  They can also help you put your affairs in order to ensure your G.I. Joes are not irretrievably comingled with your wife’s Care Bear collection.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  Jeff is a trial lawyer who specializes in business disputes and estate litigation.  He can be reached at his Rexburg office (208) 359-5883 or jeff@beardstclair.com

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Family Law
Saturday, May 26, 2012

The negatives of unsupervised fun

“See those big barrels over at the top of the hill?” my friend asked me.  He was referring to large wood reels used to hold cable wiring.  We were 12 at the time and attending a birthday party with about 10 other 12-year-olds.  I should have ignored the question and walked away.  Instead I found myself at the top of the hill rocking a large wood barrel (the barrel was taller than I was) back and forth.  When we let it go, my mind was completely devoid of thought.  I was a fairly responsible kid, but for some inexplicable reason when my friend suggested rolling the barrel down the hill, I eagerly complied.  As the barrel flew down the street, picking up speed along the way, I realized there was a parked car at the end of the street and the barrel was headed right for it.  My feet felt as if they were buried in cement as I helplessly stared at the barrel and prepared for the inevitable.  Suddenly, it hit a bump and jumped the curb.  Instead of hitting the parked car head on, it merely clipped the side of the car, knocked off the passenger side rearview mirror, and left a nasty scratch on the car as the barrel screeched to a halt.  The barrel rolling incident created quite a commotion, and the whole gaggle of pre-teen boys sprinted for the sanctuary of the birthday boy’s basement.  No further mention of the incident was made during the party, and the barrel was left at the scene of the crime.

Kids do stupid things.  The barrel-rolling incident brings to mind questions that are debated frequently.  At what age should your child be left home alone?  At what age should your child be left to supervise younger siblings?  You may think your child is capable on his own but even the most responsible of kids may exercise poor judgment when left to supervise younger siblings.

State laws vary on when a child can be legally left home alone, and many states do not have any set restrictions whatsoever.  The range of ages in the state laws that do exist is 8-14.  In Idaho, there is no set age prescribed by law as to when you can leave your child home alone.  The decision is left to the parents’ discretion.  The Idaho Department of Health and Welfare has some helpful resources in this regard, which can be accessed easily on their website.  Things to consider include maturity level of your child, ability to handle urgent situations, environment, length of time being left alone, and your child’s feelings about being left alone.  See http://www.211.idaho.gov/elibrary/HomeAlone.html. Maybe your child is mature for his or her age but is afraid to be left home alone.  If this is the case, he or she is probably not ready to be left home alone.  It is a decision to be made on a case-by-case basis.

Just because your child is ready to be left home alone does not necessarily mean your child is ready to care for younger siblings.  When kids are left home alone together, as the barrel rolling fiasco demonstrates, sometimes a fateful plan comes together.  The child left in charge not only needs to be able to care for the younger kids but also have the good judgment to prevent the wheels from coming off, or in my case the barrel from hurtling down the hill.  I am certain that most kids have more common sense then the 12 year-old version of me, but deciding when a child is ready to be left home alone is something that should be carefully considered.

Your careful consideration on the matter will help prevent unfortunate phone calls from the police like the one my dad received about a week after the birthday party.    Unfortunately for me, it did not take a crack CSI team to solve the case of the barrel and the car.  The crime was committed in broad daylight, was perpetrated by screaming 12-year-olds, and resulted in a very loud collision.  I had spent the week internally debating whether I should confess or just see if things would remain quiet – the call from the police resolved that debate.  As you contemplate the decision of whether to leave your child home alone unattended, and when the countenance of his or her angelic face runs through your mind, just remember there is a good chance your child is performing a complex analysis on what he or she can get away with as you do so.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

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Family Law