Wednesday, February 10, 2010

Divorce New York Style: A BLIZZARD OF ID

A Blizzard of Id

Here in the Northeast most of us have been snowed in all day. The courts and our offices are closed, although as tireless (and masochistic) matrimonial attorneys, sadly we all have files home with us anyway as well as remote access to our office computers, and PDAs in hand. I know I can’t be the only one. So, after checking my email yet again, sending off my case updates, speaking with my partner and associate about tomorrow’s schedule and more snow (did I mention that I now have three cases on in the morning including a trial and one final “stip or appear” in the afternoon-there is no stip), I sat down to blog. Yes, my wife is displeased given that she thought she was going to enjoy an exclusive snow day with her husband.

Given my predilection for bad puns– the lowest form of wit so they say– I give you the snowy “Blizzard of Id” for you past comic strip fans. Why, you ask? Here is the long-winded answer.

I spent a good part of yesterday with a trial scheduled in a case which is simply infuriating for a variety of reasons, many of which I will not express. We spent hours trying to negotiate a settlement after I spent Super Bowl Sunday as well as parts of Monday and Tuesday doing final preparation. After emailing a proposal over the weekend, I heard nothing back, so on the prep went. Of course, a counterproposal came a mere hour before we were to be in court– supposedly we had a done deal or so I was informed. Hours of stipulation adjusting (five pages of handwritten addendum plus changes to my initial draft proposal) later, the husband, still trying to be difficult and one-up everyone to the bitter end (and who would not accept that the entire proceeding resulted from his behavior and non-compliance), would not sign off on the last item. So, at day’s end, it could be argued that we would have been better served trying the matter to conclusion than spending additional time, energy and counsel fees waiting for the husband’s inevitable balking and game-playing. We all wanted the matter to settle, the judge had been fed up at the last court appearance and had enough, but was hopeful when we told him we were working on a resolution. My client wanted it done as well. I fully believe the husband’s attorney also wished to end it. End, however, it did not. We are scheduled back again, weather permitting, with one issue remaining– at least for now. Will countless more hours be spent dragging this on? The answer is no.

Sigmund Freud defined the “Id” in part as follows: “It is the dark, inaccessible part of our personality, what little we know of it we have learnt from our study of the dream-work and of the construction of neurotic symptoms, and most of this is of a negative character and can be described only as a contrast to the ego. We all approach the id with analogies: we call it a chaos, a cauldron full of seething excitations...”

In operating on the “pleasure principle”, i.e., people seek to satisfy biological and psychological needs, the game-playing husband in my example actually gets pleasure in dragging the case out and causing a greater sense of apprehension for the wife as well as her ever-mounting counsel fee bill. Resolution takes a back seat to the satisfaction of attrition. He takes pleasure in his own machinations thinking himself always the “smartest guy in the room”, even when he is not; “getting over” goes hand in hand with a successful negotiation. Unfortunately, with all of the expenses involved and the court’s repeated entreaties to settle this case– there is actually not a lot of money left at this point in time– he will go on unless stopped. This type of litigant is not, however, isolated to this one case nor gender specific. There are many out there with the same mentality, many of them who are “self-represented”, thus forcing their spouse to pay for counsel while they litigate for free and the court often feels hamstrung in the face of the unrepresented, for concern of not appearing fair.

Whether represented or unrepresented (pro se as we used to call it), the ideal of settlement is not always the best available result, although it should almost always be the first and best option. It is why we have courts and judges to make decisions. It is part of the lawyer’s job to be ready, able and willing to say enough is enough (with the client’s imprimatur of course). It is sometimes necessary to have the judge say"call your first witness" even when it make the judge less than happy. A real settlement might even immediately result, otherwise the court will simply render a decision. You would be amazed though at what often happens to the Id on cross-examination. Quite often the blizzard becomes nothing more than a short lived sputtering squall.