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…The Last Drop of Oxygen
She glared at me. I pointed to the elephant, lest my reputation as elephant-pointer be diminished away from the negotiating table … and also because I don’t like being glared at.
I see that you’re upset; you have made that clear several times over the past hour, and it’s not lost on me. It is clear that you’re not happy with something that I have said …
… I thought it was your job to advocate for your client.
You thought correctly.
And I heard you advocating for Dad.
No. You heard me point out the most obvious objection to an unreasonable offer, which would very likely lead us to trial, and quite possibly an outcome that my client very much does not want. It’s a negotiation, and sometimes that involves acknowledging a deal-breaker in order to address it head-on, and to concede on issues that are not important, in order to avoid fighting over the issues that are.
I know what I heard.
Clearly you don’t. It may be somewhat unnecessary for me to point out that we are not in trial right now, and that we’ve reached an agreement that did not happen at any time over the past 9 months, and that my client is quite happy with the outcome, however imperfect that may seem to you …
She glared harder, this time with pursed lips, and turned around with all the force of one slamming the receiver-end of a rotary phone, but without the quaint and evocative prop. Then she turned back around with an angry grin.
You know … I specifically requested that you be appointed to this case. Because I believed that you would do a good job of representing your client.
I pretended to take her literally, apparently having left diplomacy in that room with the group of newly visible, somewhat embarrassed elephants.
Thank you. I really do appreciate that.
She grunted, waved her hand in my face as if to swat away my an unwanted association, and stormed into the courtroom.
I thought … what was perhaps a misguided thought … that there was a middle ground that could avoid what I saw as two distinct pitfalls. There was the well-meaning condescension of a therapist whose good intentions seemed rather to create an alternate reality. My first full-length conversation with this woman left my tongue bitten to what I imagined might look something like a chicken fried steak if it were actually bitten, held back like George Brett having just received bad news, restrained like a madman who actually happens to be right … as she described the personal philosophy of one whose trips to visit her kids at Berkeley constitute a glimpse of paradise, away from the hell of backward-thinking middle (or at least Eastern west-coast) America, and whose charitable endeavors included a trip to the pipeline protests in North Dakota. Why? Silly question; because obviously to bring an emotional support dog to the children of the protesters, and to set up shop, temporarily, to address not only the trauma of having to witness first-hand…
…the actions and borderline abuse of delusional, irresponsible, living anachronisms, hoping to bring their children up among hippies while they abuse drugs in protest of something they do not understand, on behalf of people who did not request this sort of …?
Another thick layer of enamel dust mixed with saliva, and (I could only imagine blood) in my mouth as the words fought to plow their way through the steadfastly grinding teeth, and out …
… of having to witness first-hand the desecration of sacred lands by big-oil, in addition to the trauma of the racist (because we’re all natives, man, when we fight for the natives) enforcement of federal law, and the terrible violence …
But well-intentioned, and a nice woman, and a genuine pleasure to work with, when, granted, she had no occasion to view me as one who might rather be opposed to the Berkeley set, or that tear-filled drum-circle of sacred-land lovers, or, say, the contingent of beard-oil black rimmed glasses dangling with their vegan Indian takeout in Patagonia cliff-hammocks from bridges that span the Willamette. I was doing something she liked, and – to be honest – was sincerely pleasant and friendly about it, so she was willing to give me the benefit of the doubt and view my grey suede Toms as organic and hipster, rather than “the fancy black ones are too expensive to replace just yet, so I think I may be able to get away with these since I’m wearing brown slacks, today.”
In her world, a 10-year-old is emotionally fragile, and she’s not wrong, but in her world identity means, I suspect, something more than it ought, and emotionally fragile takes on that defining characteristic that neglects the capacity, often found in the most difficult of times, for a sort of emotional fortitude that may find its emergence somewhat hampered by the overabundance of support animals, jelly-bellies, and near-obsessive inquiries about “how, exactly, does that make you feel?”
The second pitfall was that displayed by the guardian ad litem who was angry with me for not “going for blood,” and not at all content with my professional judgment that the blood spilled might very well be that of my client. Namely, the tendency to substitute the child’s will for that of her own, which is admittedly her job, but to insist that it is factually the will of the child. The problem, sometimes, with placing yourself too snugly in the shoes of another, is that you react not as she would, but as you would in her place, with all your own history and experiences, good and bad. Because for however long you stand in another person’s shoes, you are still only yourself with different footwear – you are not that person.
I hoped that there might be some decent middle ground between condescension and substitution. It looked like a lot of silliness and conversation. Self-deprecating jokes, and jokes about sleeping in school, which only a 10-year-old would laugh at, knowing that every other adult in her life is not merely content, but obligated, to sacrifice honesty for the cause of “being a good influence.” It looked like a mixture of serious and merely curious questions, to which (I hoped) my own interest in any specific answers was not simply absent, but obviously absent. It looked like an in-depth analysis of after-school sports, of friendship durability between the fifth and sixth grades, and it looked like a sarcastic roll of the eyes when a smartly dressed grownup knocked on the door because everyone was waiting. And from her, an empathetic chuckle, because she realized that I really had become just as interested in observing her life as I was in planning it.
But it led me back to the now-empty courtroom, and a group of six attorneys all sitting in what was not a drum circle, but was more of a round-table, to distill all the complicated details of a handful of lives, over a few hands-full of years, into a single document of best judgment (the sort that requires a suit and a tie, and hours, and weeks, and months), backed by the force of law. It led me to the secret and fantastical desire that all of Congress should be piled in a rocket and shot into the outermost reaches of space to negotiate and deliberate and plan, right down to the smallest detail, right through to the last drop of oxygen.
Not because congressmen are lawyers, and not because any of these particular lawyers were anything less than kind, empathetic, and sincerely desiring to see the very best outcome for all of their respective clients. And not because they didn’t actually achieve the best outcome that was possible under a set of terribly unfortunate circumstances and self-imposed restraints. But because the invisible elephant shaped truth that fills the cup of my own little microcosm until it overfloweth, until the cup shatters into pieces that take everyone by surprise, is that there is one thing that we have even the faintest hope of ever understanding enough to plan for, through years of experience, of learning through trial and error, if we are exceedingly lucky – and that is the immediate space that we ourselves occupy.
Yet, instead, we pull from the most negative manifestations of all the kindhearted good intentions of my therapist and guardian ad litem, squeezing ourselves into shoes that do not fit, in order to plan for a thousand things that we cannot see, based on an incomplete understanding of only our own interests; to place a wedge of cheese, aged and steeped in hours of negotiation and debate, in the middle of a labyrinth of our own creation. A labyrinth created in vanity and in vain, having carefully considered the theoretical impact on the habitats of indigenous species, the fairness of budgeting for X without also providing for Y, and the subsequent inclusion of Y and then Z, the feelings of those who we imagine might feel appropriated or microaggressed, the contingencies and sub-contingencies; every mundane detail, every study, every fact. Every little thing except the mouse, who sits there feeling far more like a human than a mouse … and not particularly hungry for the cheese.
Published in General
I well remember being a 10 year old in a similar situation but without an advocate. The judges decided everything, usually not to the advantage of the child.
Dear Hammer,
This is the tale of today. We have on the one hand the old “going for blood” attitude even in situations where it really is inappropriate. On the other hand, we have the looney “feelings” engineering project which starts with absurdly contrived premises and attempts to drag everything along from this initially stupid starting place.
Just remember Hammer, don’t go beyond the halfway point and no going crazy.
https://youtu.be/Q9Gb6Qx0dHg
Just remember that it’s a court of law.
https://youtu.be/1AuCgkBmag4
Regards,
Jim
I’ve never seen that movie, but the clips are great. It actually kind of reminds me of one particular judge who I’ve appeared before a few times.
Oy Vey!
Regards,
Jim
I’m not sure what happened in your court, and I’m not entirely sure what your point was (that the girl was being ignored, maybe), but I really don’t like the attitude of the GAL.
I don’t know your jurisdiction, but when I’m the attorney ad litem for a child, I’m charged with being the voice of that child to the court. Some of my peers are very quick to substitute their own judgment for the child’s wishes, but I always say that if the child wants to live on the moon, then my job is to convince the Court that the moon is safe and it’s in the child’s best interest to live there.
The child needs a voice in court and that’s the attorney ad litem’s job. If the child is able to talk and form judgments, then substituting your own judgment makes a sham of the whole purpose of being appointed. It’s someone else’s job to decide what’s best for the child, it’s the attorney ad litem’s job to speak for what the child wants.
I haven’t had to argue that the moon is the best place to live yet, but I wouldn’t hesitate if a child told me in all seriousness that he wanted to go there.
Perfect @ryanm, thank you.
Yes, that’s basically my job. In this state, there is a difference between a guardian ad litem and an attorney for youth. My point wasn’t that the girl was being ignored, and it wasn’t even really to rag on either the GAL or the therapist. It was only that the whole scene made me think about how little we really can operate people’s lives, especially at the state level. Maybe that it is always a humbling experience to be reminded how little you know, and in my mind, humility is central to conservatism.
We use the terms, Guardian ad Litem and Attorney ad Litem.
What I’m usually struck by, especially when the kids are 10-13 years old, is that it is rare that the kids aren’t worse off going to a foster home than if they had stayed with their abusive parents.
It sometimes feels that way. I’ve certainly had moments where I’ll rant about exactly what should be done with this system… but it doesn’t get published, for obvious reasons.
It’s also interesting to think about when it comes to professional responsibility. Do you really argue that it would be safe to live on the moon? As an attorney, that’s not always how you act with adult clients, right? I wouldn’t file frivolous motions, and I took candor to the court pretty seriously. A guardian ad lietem ultimately gets to make his own decisions and act against the kid’s stated interest, but that doesn’t mean that I’m absolutely confined by the whims of a child. Think about a scenario where a kid asks for one thing one day and another thing another day (keeping in mind that these cases often last several years). I see it as important to get to know and understand the kid, to know when a kid is being sincere or expressing an actual desire, or when a kid is acting on a whim or reacting to something. In that sense, the “counselor at law” role is emphasized. As with everything, there is a middle ground between substituting your own judgment and acting like an automaton where you pretend that a child is a fully-functioning adult (if such a thing even exists) and just blindly acting on whatever the kid says.
I find it odd that you use those terms. The very phrase ad litem implies a substitution of judgment. You’d never refer to a criminal defense attorney as an attorney ad litem, right? Yet you’re describing the role as more akin to a traditional attorney/client relationship. I’ve always just figured that an attorney ad litem is the same as a guardian ad litem, with the sole exception being the ability to make legal arguments in court (in a lot of states, the GAL’s actually have their own attorneys). It’s funny how things work in different states.
In Texas the Guardian ad Litem tells the judge or jury what is in the best interest of the child, and the Attorney ad Litem tells the judge or jury what the child wants.
As far as I know, ad litem means (and I don’t know Latin), “at law” or something like that. I don’t think it at all implies a substitution of judgment. Of course, I exaggerate about the moon thing, it’s what I use as an example to gain the child’s trust. Of course I try to educate and counsel the child, and sometimes a child simply can’t comprehend dangers. A child is not going to ask to live on the moon. The child is going to choose to live with mom or dad or an uncle, etc. Or the child is going to want to be emancipated. I will argue what the child wants, even if dad is a drunkard, so long as the child is old enough to protect himself to a degree. As an advocate, I represent the child, and trust the judge or the jury to decide what course of action to take. The child deserves a voice.