A Q&A with Mary Hammerly, Cheri Russell, and Bo Weintraub
Mary Hammerly, Cheri Russell, and Bo Weintraub have over 99 combined years of experience practicing family law and together served as executive editors of the soon-to-be released third edition of the WSBA’s three-volume Washington Family Law Deskbook. Bar News asked them to share some thoughts on their long careers, how the practice of family law has changed, and what it was like reviewing the work of over 80 Washington family law practitioners who contributed to the Deskbook.
Q. How long have you practiced family law?
Mary Hammerly (MH): 43 years.
Cheri Russell (CR): 34 years.
Bo Weintraub (BW): 18 years.
Q. Did you know from the beginning of your legal career that you wanted to practice family law?
MH: I initially wanted to do estate planning, but I was hired as a legal intern to do family law and after that I have always practiced in this area.
CR: I started out as a clerk/bailiff for a King County Superior Court judge. I found the family law trials compelling. I was fortunate to then join a litigation firm that immediately put associates into trial work. I really believe the best way to learn is to jump in and “do it.”
BW: Family law was not my initial choice. Before law school, I earned a corporate paralegal certificate, and, during summers in law school, worked as a corporate and personal injury paralegal. However, I took a family law class in law school and the subject piqued my interest. After law school, I initially practiced estate planning and probate. I enjoyed that, but after participating in a family law mentorship program, I decided to transition to family law as my focus.
Q. What are some of the ways the practice of family law has changed over time?
MH: Just to mention a few: using mandatory forms; having a statewide child-support schedule; using parenting plans instead of custody and visitation orders; the determination that pensions are property of the community with a value and not a valueless asset that the owner of the pension takes with her/him; changes in federal law allowing the court to award a portion of a military pension to the non-military spouse; recent changes to guardianship law that took third-party parenting out of Title 26 and moved it to guardianship in Title 11; establishment of Committed Intimate Relationship as a basis for an award of property to non-married partners; changes to parentage (formerly paternity) law to accept alternate forms of conception and parentage, adding surrogates, allowing more than two parents, etc., as bases to establish parentage; establishment of the concept of de facto parents; creation of domestic violence (and related) protection orders.
CR: The major changes to the practice over time have been the ability to scan documents, sign documents over the internet, email, and mandatory forms. When I began practicing, the only way to transmit documents or signatures was by fax, and messages were left on an answering machine. In many ways, the mandatory forms have reduced a practitioner’s ability to prepare documents and agreements that are specifically tailored to the party and the case. One difficulty I have observed is that many clients now expect instant responses, even outside of business hours. And, with the internet, many parties do their own “research” and come to mediation with unreal expectations because they do not understand that the internet does not provide answers based on Washington law, nor do they have any idea who is providing the information to them.
BW: Same-sex marriage was a highly charged political issue and prohibited by the Defense of Marriage Act when I started. We have seen same-sex marital, parental, and even estate planning rights evolve. We have also seen a strong trend toward co-parenting and shared residential time. Expansion of residential time for fathers, and allocation of substantially equal residential time has been a significant legal trend. Of course, there have been many other legislative changes and trends, but those are the ones that stand out for me.
Technological innovation and the internet have also had a significant influence on access-to-justice issues, allowing pro se litigants to be more educated and self-reliant, and simplifying the process with document automation and more user-friendly forms. While it has those advantages, it has also made representation less personal. It is now possible to represent a client for years without having ever met them and having spoken to them only briefly.
Q. Family law practitioners often work with clients who are in crisis and highly emotional and reactive. What skills do practitioners need to help these clients (and manage their own stress) and where and how can they learn them?
MH: Skills for handling clients include:
- Learning to actually listen to the client and making certain the client knows you have heard them.
- The ability to show empathy to clients so that the client is able to relate to the attorney on a more personal level.
- Being able to understand the impact of substance use on the individual, the spouse, and the family; and knowing proper ways to test for it and to address it in pleadings to protect children, but still respect the rights of the parent with a substance use disorder.
- Being familiar with mental health problems, being able to work with people with mental health problems, being able to successfully refer a party to treatment (i.e., explaining the benefits of treatment without making the party feel they are being criticized), and knowing how to address these problems to protect the children and the rights of the individual.
- Knowing the characteristics of domestic violence victims and perpetrators, proper treatments and places to refer both victims and perpetrators, and how to include limitations in the pleadings that protect the children and the parties.
- Educating clients on what the law actually says. Clients frequently come in with a distorted view of the law that they firmly believe is right, so it’s also important to know when to withdraw if a client refuses to accept that their “understanding” of the law is not accurate.
- Being able to recognize a problem-client up front—i.e., one who has used multiple attorneys, one who has unreasonable expectations, one who sets out his/her expectations as to your time and whose expectations are not reasonable, etc.—and being able to decline to take on these clients.
- Knowing which attorneys have a style that is overly aggressive, runs up the bill, or is simply not compatible with your style and not accepting cases in which they are representing the other party.
Being able to handle these client issues and problems is learned by trial and error, or more quickly with an attorney mentor. CLEs do address substance use, mental health problems, and domestic violence; however, they often do not go beyond identifying the problem and suggesting treatment for the client. They do not teach attorneys how to deal with these problems in their own practices. Mental health professionals are generally better at addressing the best ways for an attorney to handle “problem clients.”
Skills to help attorneys manage their own stress include:
- Avoiding over-identifying with the client and taking on their problems as your own.
- Not reacting to opposing attorneys, opposing parties, or your own clients who are out of line. Not taking inappropriate comments made by these individuals personally.
- Realizing that you may lose cases you believe you should have won, and may win cases you should have lost and recognizing that there are a lot of gray areas in the law that judges may use in reaching a decision.
- Making sure that you are able to get away from the practice as often as necessary. This could be a daily walk or run or a trip away from the area for an extended weekend where cases are not addressed.
- Having an unlisted home (or personal cell phone) number and not giving it to clients. Clients will survive overnight and over the weekend. If you feel you need to monitor more often, make sure you have set up voicemail and a method of checking it from your home, etc. The key is to make certain when you are out of the office; you determine when you are ready to address client issues.
- Sometimes having a sense of humor helps as well.
It is important to have an attorney mentor who can point out the type of issues raised above. If an attorney is experiencing ongoing problems with depression, anxiety, or similar issues, or problems with substance use, the attorney should consult a mental health professional experienced in the area of need who is also familiar with the practice of law.11 For more information about the WSBA’s Member Wellness Program, visit www.wsba.org/for-legal-professionals/member-support/wellness.
CR: Over the years, I have been educated by every expert who did an evaluation and/or worked with my clients. And I learned a great deal when I was preparing an expert to testify. I had a Rolodex (yes, one of those artifacts) with names of health care providers. I routinely sent clients to see a therapist because my training is not in counseling and a therapist is routinely less expensive. Further, I believe it is important to help a client separate the legal process from other issues that are tangential to the legal process. A client really needs a village to help them navigate the process and prepare for post-dissolution life. I also believe it is important to assess whether a client is ready to make certain decisions. While the dissolution cannot be put off indefinitely, helping to prepare a client for the decisions that need to be made is key to being ready for a mediation or a trial.
BW: Family law practitioners need to be tolerant and understanding of the emotional and psychological stress clients are under. It is frequently a traumatic experience—both the event itself and the unknown of the legal process and its outcome. General knowledge of psychology (and abnormal psychology) is useful in that respect, and in handling high-conflict cases involving domestic violence, substance use, and other cases where mental health is an issue. Of course, therapy should be advised if needed.
To ease the clients’ stress, practitioners need to communicate clearly about the law and legal processes, possible and likely outcomes, the means to reach those outcomes, and fees. Many family law cases involve a breakdown of trust between family members. Many clients do not initially trust lawyers. An important skill for practitioners to have is the ability to build and maintain an attorney-client relationship based on trust. Practitioners need to stay objective and focused on the legal issues for the client’s best interests, and to limit their own stress. They should set professional boundaries and adhere to them when dealing with volatile clients.
To manage stress, I advise new attorneys to have an experienced attorney mentor guide them and to learn by example. It takes a fair amount of training and learning through mentorship, self-education, and trial and error to obtain the skills needed to confidently handle family law cases. Decline potential clients who have unreasonable expectations, withdraw from cases with issues and/or clients that cause excessive stress, and avoid unmanageable caseloads. Maintaining calm when confronted with an overly “zealous” opposing counsel is also important. Lawyers should also mitigate their own expectations. Recognize some cases will have weak facts and legal arguments. Even with solid facts and strong legal argument, judges have significant discretion in evaluating facts and making decisions. A client will still appreciate your hard work and solid legal representation.
Q. What have you found to be the greatest rewards in practicing family law?
MH: Seeing clients “flower” when they became independent of a spouse. I especially saw this in women who had never earned their own income who were able to receive the funds to attend school and develop careers of their own. Assisting in removing a victim of domestic violence from an abusive relationship and watching them regain self-confidence and a positive life on their own is rewarding as well. There are also rewards in winning custody cases when the result is clearly in the best interest of the children, and rewards in being able to provide a party sufficient financial resources to move on with his/her life when the spouse had refused to provide reasonable resources.
CR: It’s rewarding to have a client who has an understanding of how they reached the settlement agreement or how the judge reached a decision. I have always found if a client can understand how a judge reaches a decision, it is easier to accept a decision that is contrary to the client’s desire. I have also found rewards in seeing clients blossom into their “new” selves, whether it is a client who had never worked who goes on to succeed at school or in a job, or a client who was not the primary parent who learns how to braid hair and/or coach Little League. I have seen many clients who became model employees or stellar parents.
BW: It is very gratifying when I can effect positive change in abuse, domestic violence, or parenting alienation cases, and in other cases where I have helped stop and prevent recurrence of an abusive situation. Successfully defending against frivolous abuse allegations that have restricted a parent’s residential time is also gratifying. Also, when clients simply thank me for helping them resolve their case and can move on. I’m also very rewarded when initially high-conflict parenting cases are amicably resolved and a functional relationship is preserved between the parents.
Q. Is there a family law case you handled that has stayed with you over the years? Why?
MH: There are two cases that I remember the most.
In one, my client said his spouse had a substance use problem; she said he had a substance use problem. Both were evaluated and both were determined to have a problem. My client and I reviewed his report and he said if he had to stop drinking to be with his children, he would do so. He joined AA immediately and has continued to be active in AA for over 20 years (maybe more) and has stayed sober.
The second case involved a client who had been physically and emotionally abused by her husband. She had been working cleaning houses, and he told her she was too dumb to do anything else. She was completely lacking in self-confidence. She wanted to be a surgical technician but was terrified to take the math entrance test because she said she did not know fractions. We discussed the fact that she actually used fractions in cooking. She took the test and when she was stuck she imagined her measuring cups. The summer before she was to start school, she took a couple of classes to get into the routine of study again. One was a medical terminology class that was supposed to be one of the hardest she would have to take her first semester. She did very well and ended up getting into the program ahead of several others on the waiting list and was awarded a scholarship as well. Since graduating she has worked in the obstetrics and gynecology department at a local hospital and has been assisting with cesarean sections. She is incredibly proud of herself and has developed self-esteem. She told me several times that my encouragement—telling her she was intelligent and she could do this—was the thing that kept her going through the rough times. We laughed about her “measuring cup math” for a long time.
CR: A case that comes to mind involved a dad who had told the kids (ages 4, 6, and 8) that their mother (my client) was dead. She had not seen them for nearly two years because of his threats. The father would leave the kids alone during the day when he went to work with the admonition that if they left the house, they would answer to “Mr. Buddy,” which was a 1×1 board used to discipline them. At the very first hearing, shortly before Christmas, when I asked to have the children picked up without notice to the father, the commissioner looked down over the bench at me and said “You better be right, Ms. Russell; you better be right.” I had an evaluator ready to do an initial review and return to court after the holiday. The evaluator recommended the children not go back to their father and remain with the mother in Colorado, and that there be restrictions on dad’s visitation. The case lasted nearly three years and through two GALs. In the end, the children remained with their mother and all graduated from high school and finished vocational school or college. My client is now a family law paralegal in Colorado. I hear from her every Christmas.
BW: There are many. I did have a case involving a young girl whose out-of-state mother had recently married a registered sex offender with an extensive criminal history. I represented the father and successfully obtained modification of the existing custody order. This client was in for a real fight. Few cases present themselves as a simple matter of right and wrong, but this was one of them.
Q. What was the experience like of reviewing the work of 80-plus contributors to the new third edition of the WSBA’s Washington Family Law Deskbook?
MH: In general, I found the authors did an excellent job and I was impressed with their work. In some cases, I learned things that I did not know. There were a few who missed some important points, but they took my suggestions, large or small, well.
CR: Interesting and challenging. The volume of work was high at times. It was interesting to see what the authors focused on and to work with some to include additional cases or theories. It was also educational to review chapters on topics that I have not worked with extensively. I really appreciated the flexibility of our authors to do rewrites when a new case was issued or a new statute was enacted, even after the first review of the chapter had been completed. Everyone was focused on preparing a thorough review of the topic and providing helpful hints to practitioners.
BW: We ran into COVID-related delays, and production schedule deadlines became a bit murky. But I knew we would complete it, and it was a valuable learning experience. I greatly value the time and effort put in by all the authors in the volume I edited and, of course, the two other volumes.
Q. How do you envision family law practitioners across the state using the new third edition of the WSBA’s Washington Family Law Deskbook to assist them in their practice?
MH: I would expect attorneys who are less experienced to review complete sections of the Deskbook to learn how to handle a specific area of the law. More experienced attorneys may consult specific sections when they are handling an area that is not as familiar to them. The forms that are provided, when there is not a mandatory form, will likely be used by new and experienced attorneys alike.
CR: I hope practitioners will use the Deskbook as a jumping-off place to help them direct their research and to focus on the issue being researched. One of the consequences of this pandemic has been the reduced opportunities for practitioners to get together to discuss issues. The Deskbook is really a mentoring resource.
BW: I used the second edition of the Deskbook as my primary reference source for my practice. I hope family law practitioners do the same with this edition. I am especially pleased with the new trial preparation chapter. We did not have that in prior editions. It took me years of trial and error to learn trial prep and practice, and I know it will be a valuable resource.
THIRD EDITION 2022
Washington Family Law Deskbook
For more information on the new edition, see the WSBA deskbooks insert in this issue. To order,
call 866-956-5242 or go to lexisnexis.com/WSBA.
NOTE
1. For more information about the WSBA’s Member Wellness Program, visit www.wsba.org/for-legal-professionals/member-support/wellness.