What a privilege it was to participate in the first ever interdisciplinary collaborative law training in Alabama!  This past weekend, approximately 40 like-minded professionals from the worlds of law, mental health and finance came together to learn how we could work together in teams to make the process of getting divorced less destructive, more dignified and respectful, and tailored to the needs of the family going through it – because marriages may end, but families do not. 

Collaborative law is a process in which the parties to a divorce hire lawyers and other appropriate professionals trained in collaborative practice to negotiate a resolution of their divorce.  The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but they along with their lawyers and other team members agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.  The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers and team professionals), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution.  The process allows for other “nonparty participants” to be part of the process – financial professionals, divorce coaches, child specialists (collectively with the lawyers “the collaborative team”) – to help the parties address their individual needs and concerns, the needs of their children, and to shape the appropriate agreement to address those needs.  The process is privileged and confidential and the communications made during the process cannot be later introduced in a trial. 

We had a top notch training staff, including the women who literally wrote the book (“Collaborative Divorce” HarperCollins Publishers, 2006), Pauline H. Tesler, M.A., J.D., and Peggy Thompson, Ph.D.  Joining Pauline and Peggy was Lisa Schneider, CFP, CDFA – a long time regular member of their collaborative teams from the San Francisco Bay Area.  The three days we spent with our trainers were equal parts challenging and invigorating.  I hope I speak for the entire group when I say we walked away with no doubts that the collaborative model is the healthiest, most equitable, and one of the most cost effective ways a family can traverse the minefield of divorce. 

There are over 20,000 trained collaborative professionals practicing in at least 19 countries worldwide.  This model has been adopted, approved and promoted by numerous judges, state appellate court justices and bar associations around the U.S.  Here in Alabama, Robert E. Lusk, Jr., assistant General Counsel to the Alabama State Bar Association, has confirmed for us that collaborative law is alive and well in Alabama and in full compliance with the Rules of Professional Conduct (note to those lawyers who still want to question whether collaborative agreements are ethical – this should allay your concerns.  Please feel free to call the Bar if you have questions about the ethicality of this process).  Further, the National Conference of Commissioners on Uniform State Laws has promulgated the Uniform Collaborative Law Act, which has been proposed in the Alabama Legislature by Senator Cam Ward. 

The process just makes sense.  Lawyers are freed up from trying to wear every hat to focus on what they are trained to do best – address legal issues.  Divorce coaches and child specialists, who are trained mental health professionals, help the parties address the emotional and decision making needs and insure that the children have a well trained voice in the process that is all their own.  A neutral financial professional gathers the data related to assets, debts, expenses and the like, and presents a neutral picture of the marital estate so that everyone is working from the same – and most importantly accurate – picture of the family’s financial position.  That same neutral financial professional also helps everyone understand the financial implications of the decisions the parties are making under however many scenarios the parties want to look at.  The end result is an agreement that addresses the needs of the entire family that the parties themselves have created with the assistance of the proper professionals – and those professionals remain available to the family after the divorce as they transition into the next stages of life.   

Common questions come up when discussing collaborative law: How can a process involving all those professionals be cost effective?  Won’t the process take forever with all those professionals in the mix?  The answers are fairly easy.

 First, clients are not paying lawyers (typically the highest hourly rates on the “team”) to try to be financial professionals digesting and explaining the complexities of finances.  Nor are clients paying their lawyers’ hourly rates to address every anger or emotional issue that arises – and lawyers are inherently the wrong professionals to bring these types of concerns to anyway (we typically, although not always intentionally, end up throwing gasoline on the fire).  Further, clients are not asking lawyers to make their best guess at what is the proper role for each parent with their children after the divorce.   

Also, clients are not paying for multiple trips to the courthouse for their lawyers to attend hearings or try the case.  On any given day in Birmingham, there are approximately 2,500 divorce cases pending and those cases take on average anywhere from a year to eighteen months to reach trial.  Comparatively, the collaborative process will typically take a matter of a few months to reach resolution.  The biggest plus of collaborative law is that clients are not leaving the most important matters in their life – the involvement of each parent with their children and how post-divorce financial issues will be handled – to a well-intentioned complete stranger (the trial judge) who listens to a few hours of testimony and makes his or her best efforts to make those decisions for them.  The clients make fully informed decisions for themselves. 

The process takes less time than it takes to go to trial or settle your case on the courthouse steps, and the time that is spent is divided between various professionals at hourly rates that are appropriate to their professions.  The process is quicker and less expensive than litigation and nowhere near as destructive. 

Collaborative law promotes dignity and respect.  It is tailored to the family in question.  It is fair.  It is confidential.  It is transparent. It is cost effective. It is time effective.  It works.  I look forward to watching this model take hold in Alabama and am proud to call myself a collaborative professional. 

For more information on collaborative law, please check out the following sources: 

http://www.collaborativepractice.com/

http://www.birminghamcollaborative.com/

A lawsuit claiming the State’s property tax provisions violate the Equal Protection Clause of the U.S. Constitution is playing out in Federal Court.   The trial has taken place between courtrooms in Huntsville and Birmingham, and has been long on historical context and suggestions of racially motivated policy making. 

The case was filed by families of both black and white students from rural counties.  The plaintiffs have argued that the current system, under which timber and farm lands are taxed at taxed well below fair market values, discriminates against rural areas and leaves schools in those poorer communities underfunded.  Lawyers defending the process argue that public school funds are fairly distributed and that the system gives communities the opportunity to put property tax increases in front of voters by referendum.  One area of agreement on both sides – Alabama’s property taxes are the lowest in the country. 

Politicians who were involved in the establishment of the current system, including former governor Albert Brewer, have testified regarding the interests that came into play in establishing the current property tax system.  Governor Brewer, who stated he would not have enacted the policy that was established had he been re-elected in 1970, testified that he never heard any politicians citing race as the grounds for establishing the property tax system. 

The trial, which is taking place in Birmingham this week, is expected to return to Huntsville and continue through next week.  If the plaintiffs prevail, they are asking the federal judge hearing the case to give the Alabama Legislature a one year window in which to develop a new property tax code.  More information on this lawsuit can be found on AL.com.

USA Today ran an editorial piece this morning (December 29, 2010) lauding praise on Kenneth Fienberg and the BP claims process.  In response to that editorial, USA Today ran a commentary by outgoing Alabama Attorney General Troy King, who charges that Mr. Feinberg is not working for the benefit of those injured by the Deepwater Horizon spill.  Instead, Attorney General King argues that Mr. Feinberg and his firm, which is being paid $850,000.00 per month by BP, is doing all that can be done to limit BP’s expenditures. 

Mr. Feinberg continually encourages Gulf Coast residents to avoid filing lawsuits.  As Mr. King states, “Feinberg has exploited the hopelessness and despair that many Gulf Coast residents feel as they face bankruptcy and live in the shadow of BP’s latest broken promises by telling them they will receive a better deal through the claims process than if they go to court – a statement he cannot substantiate.” 

Attorney General King suggests that the process Mr. Feinberg has put in place is not as consumer friendly as what BP had agreed to do.  He also notes that the State of Alabama has gone so far as to issue a “scam alert” warning consumers to proceed with caution when dealing with the claims process Mr. Feinberg is running, and that consumers should consult with counsel before signing any paperwork. 

Mr. King summarizes his position like this: 

Each citizen must give deep and serious thought to his own situation and what is the best way to proceed.  It is unfortunate, but clear to me, that our citizens cannot simply accept Feinberg’s advice, trusting it to be in their best interest – for it may well not be so.

Consumers should heed Mr. King’s advice and proceed with caution.

The United States Court of Appeals for the Eleventh Circuit has ruled that a proposed class action lawsuit against Oasis Legal Finance, L.L.C., may go forward in the Northern District of Alabama.  In a per curiam opinion, the Court held that Judge Robert B. Propst was correct in his “well-reasoned memorandum opinion…denying Oasis’s motion to dismiss the case for improper venue.”  Oasis had sought to have the case dismissed under a clause in its form-contracts that required actions involving these agreements to be filed in an Illinois court.  Oasis’s headquarters are in Illinois. 

The class action lawsuit, filed by the law firms of Hill | Turner, LLC, and the McFerrin Law Firm, challenges the validity of Oasis’s “non-recourse” legal funding contracts under principles of Alabama law that hold contracts involving gambling on the outcome of lawsuits invalid.  Both Judge Propst and the judicial panel of the 11^th Circuit who ruled on the matter noted that the agreements provide that any disputes would be determined under Alabama law; that issues regarding the validity of the contracts are a matter of Alabama law; that the potential class members are all Alabama residents; that the class members entered into their contracts in Alabama; and that under those circumstances it was unreasonable to hold that the forum selection clause in Oasis’s contracts seeking to restrict the cases to an Illinois court was unreasonable. 

The lawsuit, styled Rucker, et al v. Oasis Legal Funding, L.L.C., will now move forward in the United States District Court for the Northern District of Alabama.