Two Sides to Everything: Duking It Out with Opposing Counsel Michael Lundy
Movies and TV shows always make out the opposing counsel as this unstoppable and evil force with unlimited resources and ill intent. Okay, maybe it’s not that extreme, but you get the idea. We all have an idea as to what the opposing counsel is. But are they that bad? Do they naturally hate your lawyer and vice versa? Well, on this episode, Seth invites Michael Lundy – a family law attorney in the great state of Florida who has sat on the opposite side of the table from him on numerous occasions as opposing counsel– to join the conversation. And you know what? He’s a great guy.
It really shouldn’t come as a surprise but strangely, it probably feels like one – lawyers on opposite sides of a divorce case don’t hate each other like their clients may. They’re not the ones getting divorced, after all! Perhaps it’s the emotional baggage that those in the divorce process carry with them that they expect the lawyers to be more antagonistic toward each other, but when they’re not on the clock, they’re likely not even thinking about the other person. In fact, they may even be friends and are getting drinks after leaving the courtroom.
Michael joins Pete and Seth to talk about the challenges of divorce law and why so often, it’s better to push for a settlement than to ever go to trial. Because as it turns out, the judges are the ones who control the outcome. And opinions on judges warrants an entire other episode. Needless to say, we talk about how judges vary in their decisions which makes settling far more hopeful in getting what you’re looking for.
Now every lawyer is different with their own temperament, but you’re still putting more people in the decision-making process if you go to trial. And as Seth says in this episode, do you really want a government employee telling you what you get? And to a certain extent, that holds true across all jurisdictions.
So tune in to this episode to hear Seth and Michael – two divorce attorneys who work as opposing counsel – on the same side of the table laying their thoughts out for you about expectations you should have of your own opposing counsel.
Find Michael at Older Lundy Alvarez Koch & Martino
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Pete Wright:
Welcome to How To Split A Toaster, a divorce podcast about saving your relationships from True Story FM. Today, we introduce your toaster's nemesis, the opposing toaster.
Seth Nelson:
Welcome to the show everyone, I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. Today on the show, we're taking a look at the machine that is humming along behind the scenes of your divorce. As soon as you engage an attorney to help you with your divorce, you start hearing about "opposing counsel." Who is it? What does it mean? And will your attorney get in a fight with them like you see in the movies? Today, we put those stories at rest with our guest and my frequent opposing counsel, Michael Lundy of Older and Lundy. He is here today from the great state of Florida in my hometown to Tampa, Michael, welcome to the toaster, you son up a bitch.
Pete Wright:
That's what I want.
Michael Lundy:
Off to a great start already.
Pete Wright:
I have been told that conversation could go for several days. So we're putting out a mini series of Seth and Michael talking about litigation and judges. That's what I've been told. I'm very excited about it. Michael, welcome to the show. And at what point in any given trial, do you realize, I would like to ring Seth's neck? Does that ever happen?
Michael Lundy:
Well, the good news is Seth and I don't end up in trial as we're wise enough to know how to get our folks to get issues resolved without having to do that because that is a pretty horrendous process.
Pete Wright:
I'm thrilled for you both to hear you say that, but my inner sense of drama needs more conflict. You're telling me there's just no conflict in the divorce process between counselors?
Michael Lundy:
I'm just telling you that Seth and I are above that.
Pete Wright:
Okay.
Michael Lundy:
But we both make a good living because there are plenty of players here that are going to force us to be in a state of absolute conflict.
Pete Wright:
Outstanding. Seth, I think you and I both know, even though Michael said it, we know you are not above anything?
Seth Nelson:
Well, no, at my height, come on, let's be real about it, okay? I'm great at limbo. But here's the deal, Michael's absolutely right. I think Michael is brilliant. He is a tactician in the law and he solves problems. I cannot remember the last time Michael and I were standing in a courtroom arguing the law or arguing the facts because as Michael frequently says this, "Hey, we're trying to land this turbulent plane. What can we do?" Because we both know that Michael could go to court against me and make every point, follow the law to the T and have all the facts on his side and wipe me off the board, and I could still win because the judge is just going to get it wrong or come up with some arbitrary, crazy ruling. So I always got that going for me.
Pete Wright:
Mm-hmm (affirmative). Mm-hmm (affirmative).
Seth Nelson:
Michael, do you agree with that?
Michael Lundy:
I do. It really can be a crap shoot. And to make matters worse, our judges tend to rotate on and off the bench very frequently and after not being there for that long. So just as a judge starts to actually get some real expertise in our area, that's about the time that they get rotated into another area of law, and so we lose the value of all that. And that is one of the things that drives us crazy, right? Because we all know what each judge's strengths and weaknesses are and we can play to those things. And to some extent, lawyers really go out of their way to take advantage of those things and manipulate the results. And at the end of the day, we're talking about people's lives, people's children, right? People's livelihoods. And I'm just at this point in my career after doing it for this long, not so sure I love that so much as I used to anyway.
Pete Wright:
Michael, I need to back you up a minute because I think you're talking about some mechanics of the legal system that maybe are listeners. If you're just listening to this, because you're looking for some guidance about your divorce process, might not understand. When you talk about judge rotation, can you give us a brief on what that means?
Michael Lundy:
Judges are assigned to different divisions of the court. You have a criminal division, we have a civil division, we have a family division, we have a probate division. And they rotate from division to division, basically at the will of the chief administrative judge who wills quite a bit of power in judicial assignments. And so typically, you'll see a family law judge in the family division for anywhere between two and five years. And it takes about two to three years for them to really truly have some sophisticated understanding of what's going on in there.
Seth Nelson:
The reason for that, Pete, is because someone either gets elected to the bench in Hillsborough county, Florida, or they get appointed by the governor. And then they're a judge. They're a 13 judicial circuit judge. That's what it's called where we live. The chief judge who's elected by the other judges, they're allowed to organize themselves. And as Michael explained, they've organized themselves by having different divisions. But the chief judge is ultimately responsible and has the power to put the new in any division he wants. More often than not, a brand new judge who has never practiced family law a day in their career gets assigned to be a judge in the family law division.
Michael Lundy:
Let me make that picture even worse. So in the family law division, unlike in most of the other divisions, the judge makes every single decision. It isn't a jury of your peers. You don't have six people sitting in a room and deliberating for days or hours or whatever it is and considering everything. You have one person who might have the stomach ache that day, who might hate their ex spouse, who might come to the table hungover, who knows, right? Might just be having a really terrible day and they're going to bring all their individual personal biases. And there's nobody in the room with them to help them bounce ideas or make decisions. So it really does come down to that one individual person's way of making decisions.
Pete Wright:
Should I ring the check here, local jurisdiction bell? Or to your knowledge, is this a fairly consistent way of organizing judicial responsibility?
Seth Nelson:
You can always ring the bell because it's one of our favorite games to a play. But in other jurisdictions, they do have divorced by a jury.
Pete Wright:
Oh, okay.
Seth Nelson:
In Florida, you can have a paternity case where they're not married. You could try that to a jury. I've never known a lawyer to do that. It's just not the way it's typically done here in Florida. But yeah, in family law court, it's usually what's called a bench trial, which means one judge making all the decisions on what the facts are and all the decisions on the law and how those get applied. And as I think Michael will agree with me, will come up with some arbitrary rotating schedule for children that is not based in anything scientific, anything on what's necessarily what's best for a child, but it's somewhere between 30% or 25% with one parent and the rest with the other or 50/50.
Michael Lundy:
Well, and I'll tell, it varies drastically even from county to county. So I think generally speaking right now in Hillsborough county, there's a move towards parenting and time sharing stuff being equally divided. You go 20 miles north in the Pasco County, and there's an absolutely opposite presumption against 50/50, or at least there was for quite some time. Similarly, you go to St. Pete, you might have a judge who's been sitting on the family law bench for 15 or 20 years, but in Hillsborough County they're rotating off every two, three, four years. And then you have a different problem when somebody's been on the bench for so long, they literally become callous in my opinion, and they start to make decisions, devoid of any concern about what the law says from time to time, they just do what they feel is right. And that's the end of that. And trying to correct the mistake of a judge is a very costly lengthy appeal process and it's too boring to talk about, but suffice to say, it's a problem trying to fix a mistake.
Seth Nelson:
Sounds like fun, Pete. Well, get divorced in Hillsborough county?
Michael Lundy:
Yeah. You [crosstalk 00:08:55].
Pete Wright:
Built a hell of a case.
Seth Nelson:
Well, we're lawyers for God's sake. That's what we're supposed to be doing.
Pete Wright:
Yeah, right. And I think that makes a lot of sense. It makes a lot of sense in terms of why when your attorney tells you, you don't want to go to court, you should probably listen to them. Whether you're in Hillsborough county or any other county, there's a reason that they're telling you, you don't want to go to court in whatever your jurisdiction is.
Seth Nelson:
There's no doubt in my mind that Michael Lundy can look at a case, a simple case, a complicated case, a complicated financial case, crazy facts, let's call them, on what's going on in parenting and what parents are doing that's harming children. And he can tell you with a very high degree of certainty what the judge should do in a very narrow width. It's going to be in here. He will not be able to tell you what that judge will do because they get it wrong all the time. And I've had it, cases where both lawyers walk out and be like, "Yep, got it wrong." Both lawyers agree.
Michael Lundy:
The other thing that now that I'm getting older and more philosophical about this, that just strikes me as absurd is our court system was originally set up to apply rules so people didn't commit crimes or steal property or trespass on each other's real estate. And now we've super imposed this court system, this civil litigation and criminal litigation system onto families. And the central premise behind our system is that people are adversarial to each other. So imagine on day one, you have a mom and a dad and we're going to set them up as adversaries. Our system demands an adversarial process. And now mom and dad are adversaries against one another and they hire lawyers to advocate for them, not the children for them. And they go through an adversarial process to solve a family problem. And anybody who thinks that's the most effective way to do this, just hasn't been doing this long enough.
Pete Wright:
I wonder on that point specifically, if it's a self perpetuating cycle. Does that make sense? That in fact, because the system demands an adversarial process, how much of an expectation is there when a couple is looking to separate that they're already dealing with conflict in their, in their relationship that's driving them to separate, that they drive to be more aggressive because that's their expectation by retaining counsel to support them to do it? Does that make sense?
Michael Lundy:
The entire system is set up to drive them into positions. Think about this, right? Two people raise their children for 10 years. Not one time during that 10 years does either one of them call a lawyer and ask for parenting advice. Not one time in that 10 years does somebody say, "Wouldn't it be great if we had a judge come and tell us how to make a decision about whether our kids should play tackle football or not, or whether they should go to this pediatrician or that pediatrician?" And then all of a sudden, off of a cliff, people dive into this adversarial process. Your lawyer's not a parenting expert. They probably aren't even that good of a parent themselves, that they may not even be a parent. The judge may not be a parent, right?
And again, everybody's bringing all these biases into this situation. I think it is a self-perpetuating cycle. And I also think that every time there's this big discussion about changing the law to try to make things simpler, the damn family law lawyers go crazy. Right now there's all this legislation that's on the governor's desk waiting to be signed. And I get two to three e-mails a day of lawyers saying, "Stop this bill from getting passed."
Pete Wright:
And the bill is designed to do what?
Michael Lundy:
It's the supposed to simplify things, right? It's supposed to say things like, we're going to start every case with a presumption that parents should have equal time with their children. Oh, everybody's up in arms about that because quite frankly, a lot of lawyers are afraid that'll be less to fight about.
Seth Nelson:
And what they don't get is that what divorce is really about is solving problems and there's different ways to solve problems. The absolute worst way to solve your problem is to be in an adversarial system where a third party government employee, I'm not even going to say a judge. You're going to go to a governmental employee to make a decision about your children. That just makes no sense. And it's not like you get up there to tell your story. When you're in court and you're the litigant, you're the mom, you're the dad, you're the husband, you're the wife. You're treated like a child. You sit there, you don't say a word, you speak when spoken to, and you have to answer the question. The lawyer is the one that gets your day in court. And it is riddled with objectionated testimony, because if you don't ask the question the right way, Michael Lundy's objecting, I'm objecting.
Pete Wright:
Who's to say that isn't the price for not being able to solve problems yourselves? I imagine listening to this thinking if I'm in a position of separating, the reason I have to ask for someone else to step in is because I can no longer engage with the person that I have been married to for 10 years.
Michael Lundy:
That is a great question. And I think that there's truth in that, that is the price for people who can't solve their problems. The concern I have is that we don't give them the tools or the appropriate process at the onset to try to solve the problems themselves. Person A goes into lawyer A, and person B goes in to see lawyer B and they've already stopped talking. They should have, person A and person B, going in to see mental health professional C and trying to facilitate some communication. And there's a dozen or so other things that people could be engaging in that would be a lot more productive than, quote unquote, lawyering up and gearing up for the big fight.
And lawyers can and do very frequently say, and in the public record, very inflammatory things and the communication of all that inflammatory junk only drives the people further apart. I tell my clients all the time, if we go to trial, the two of you are likely going to hate each other. And how do you think your child is going to feel about having two parents that can't sit in the same room together when that child gets married or has some other important life event?
Seth Nelson:
And to add to that though, Pete, when I say that to my client, I have that same discussion, I'll say, and when Michael Lundy and I walk out of that where we've been just battling it out, tearing you guys apart, "We're still going to be friends. We're going to go have a beer together. We're going to have a good night, a really nice bottle of wine that frankly you guys paid for." It makes no sense. So the pleasure of working with Michael when he's opposing counsel and I do that in quotes, is we call each other and say, "How..." To use Michael's words, "Do we land this turbulent plane? What are the problems? What are the solutions? What are some things we can do along the way to make our clients respective clients, a little more comfortable with the ultimate outcome?" It doesn't go from zero to 60 and you're done. Sometimes your client might have to prove themselves a little bit.
And sometimes another client that wants the proof is going to have to say, "Okay, maybe I don't get everything I want, but this is close enough. Let's start working these problems. What are better ways to communicate? Can we do something?" What we typically don't do is maybe give someone the benefit of the doubt and not the other way.
Michael Lundy:
Pete, I'll give you an anecdote from this week.
Pete Wright:
Yeah.
Michael Lundy:
Okay?
Pete Wright:
Okay.
Michael Lundy:
Two parents, they're divorced. They hate each other. They hate each other because they went to trial in their original case. Last week, the eight year old child of these parents filmed on a cell phone, her 12 year old sister sucking on our client's new spouse's dildo. Okay?
Pete Wright:
What?
Michael Lundy:
All right, now okay, you wish you on video so we could all see your face. Now, this is not that crazy in our world. What should happen? Well, parent A should pick up the phone and call parent B and say, "Hey, I found this terrible stuff on our child's cell phone. What are we going to do about this?" But what does she do? She doesn't say a word. She weaponizes this issue. She files an emergency motion. My client's time sharing, our client's time sharing is suspended temporarily because the judge is inflamed by all this stuff that her lawyer puts into a motion. But it turns out she only tells half the story in the motion.
Of course, we think we're doing a great job for our client because we uncover the other half of the story. We go in, we tell the judge and the judge is furious with her. A, because she misled him and it caused a problem for my client's time sharing. And B, because he's looking at these two people going, "For God's sakes, you have two children misbehaving. Talk to each other, parent your children. What in the world do you want me to do about this problem?" Right?
Pete Wright:
Right.
Michael Lundy:
And this is all too common. Something horrible happens and two people need to have the tools to pick up the phone and talk to each other and solve the problem. And instead, our system is designed to make them be adversarial about these things and to think of these things as ammunition.
Pete Wright:
It seems to me like there's a point at which there's a stage gate where incentives change, right? Where suddenly you go as a counselor for these people, as legal support, you have to change gears from this person who is rational and wants to see these two people talk to one another and figure out how to solve problems to, "Okay, if you're going to fight about this, I'm going to have to be the kind of attorney that weaponizes information in these briefs, because the system is adversarial in such a way that it is that if we are going to go down this road, we have to change gears because we are incented differently. We're incented to win," for lack of a better phrase, "In this case." Is that a fair assessment of the kind of good...? Because I feel like the person you're talking about who everybody's upset about, the attorney who filed that motion, could you not make the case that they're mounting an able case for their client?
Seth Nelson:
Well, you can. But the question is, are they also asking the other questions? Are they going to their client and saying, "Listen, this is a problem. Have you picked up the phone? What have you done to try to protect your child? There's a problem here." Have they had that conversation? Have they said, "Is this the full story?" Because let me tell you, because we know from the previous litigation, they're going to go hire Michael Lundy and Michael's going to try to uncover the full story, because there's always more to the story. And when that full story comes out, are you going to look bad for pulling one over on the judge? Which is exactly what Michael just described here.
And what is your ultimate goal? Did the lawyer say, "What is your goal?" If the goal is, "Well, I want to get more time sharing." Okay. It's okay. It's 50/50. They're still going to get time at the other parent's house. If it's a real safety issue, which never makes sense to me when people come to me and say, it's a safety issue. Well, then why are you offering every other weekend and every Wednesday night, but not the every Thursday night? And that's the difference, right? So if it's a real safety issue, you wouldn't be arguing for any time.
Michael Lundy:
The other thing that gets me is, why didn't the lawyers talk to each other? Right? Do you know why? Because the other lawyer on that case thought that she was going to get one up on us by running that down to the courthouse and ringing the bell and making everybody crazy. And then not only did your client lose credibility, so did you. And what's the goal to interfere with your child's relationship with the other person? Does that really have the right long term outcome for you or for your child? What I think is it the set of a lot of this is people just put their own shit first instead of the child's stuff. They're so wrapped up in their positions and they're so wrapped up in beating this other person and getting some kind of revenge or whatever it is that they forget about what really is most important, which is raising a healthy child into a healthy adult. Right? Do you want your kid to have depression, anxiety, eating disorders, promiscuity? Do you want the kid to have other problems? Go ahead, have a nasty custody fight.
Seth Nelson:
Basically, Michael just said, do you want your kid to grow up and be like Seth? If you do, go to litigation. If you want to be more like Pete, stay out of court.
Pete Wright:
Stay out of court. You guys are both seasoned attorneys. How long does it take you in your practice to wake up and realize you can be a little more level headed about this? Because it seems like you might be anomalous in the practice that there are other attorneys out there who are not so level headed, who might encourage the adversarial approach to divorce.
Michael Lundy:
My opinion on this is that if you really are a business person about what we do, and both Seth and I are, you realize that in the long run, your business will thrive by being honest and treating people with respect and being rational in how you make decisions and counter your clients. When you're not a business person and you think that you have to squeeze the last drop of juice out of every single piece of fruit that comes through your door, you will, in the short run, make more money on some cases. But what you will do is engender a lot of negative feeling out there amongst your clients who will end up being very disappointed because you set expectations and realistically, at the outset, you're going to have an upset client at the end of the case, and amongst judges and other lawyers. The judges and other lawyers know who the lunatics are. It's not a secret.
Seth Nelson:
Judges talk about lawyers more than lawyers talk about judges.
Pete Wright:
Wow.
Seth Nelson:
I'm convinced stuff of that because they see us all coming through every day, they go behind the secure doors with their little fobs, right? They walk up and down the hall where they all have their chambers and they're in that courtroom by themselves all day with their bailiff. What do you think they do when they go and they've had a bad had experience with a lawyer in front of them? They're telling the other judges, "Watch them. They don't trust them."
Pete Wright:
Picture a representative judge in the Hillsborough county court system. They're listening to you two talk about this and their work and your work. What are saying right now?
Michael Lundy:
Oh, I've watched these judges give speeches the first time they get in front of parties that's very much in line with what we're talking about right now. I had a case where I represented African American gentleman, the other side, an African American woman, and a judge who I have great respect for, who's been around for a long time at the first opportunity, sat down and said, "Do I look like I should be making decisions about your holiday schedule, your life, your child? If you want a man who doesn't know you, doesn't look like you doesn't know, your child, doesn't know anything about your lives to make these decisions, come on in I'll do it, but do not expect to be pleased with the result."
Seth Nelson:
I think genuinely, the judges want to do, quote unquote, the right thing. And I think ultimately, as Michael said earlier, they're longer on the bench. They're just doing what they think is right. They start ignoring the law. Why is that? Because the law isn't necessarily going to do the right thing, which makes it really hard for practitioners when we're going in saying, "Here's the law judge." Right? And I understand it might not line up with what you're thinking. And Michael was saying before, "Hey, we get a different outcome in Hillsborough versus Pinellas versus Pasco. We get a different outcome if you're in courtroom 401 or courtroom 402. It's a different outcome. And I can tell you cases where I know if I'm in front of one judge, I'm going to win this argument. If I'm in the judge next door, I'm going to lose it. And it's the same argument, the same facts, the same law.
And I think the judges will tell you, "How am I supposed to make a really good decision based upon, and one day of testimony, an hour or two. I'm not going to really get the full picture." And I think the thing that judges will be saying is, "Yeah, you need to stay out of court because even with the best lawyers, we're not going to get the full picture, because there's just not enough time." And they get really frustrated with a PAC docket where you can't even get into court for trial. If Michael and I were ready to go to trial today on complex legal issues and we needed two days, we're not getting to court for four to six months. They're that backed up. And those judges really get annoyed with bad lawyering because it's wasting their time, it's not giving them the information they need to make the decision.
They're basically saying to them, "Hey judge, want you to build this house." And then the lawyers don't put on the evidence on whether it's going to be one story or two or is going to be brick or stucco. So what is the judge supposed to do with that? How am I going to put a roof on this thing when I don't even know what the support system is on it?
And I think it's a tragedy in the things that I bitch about most are poor lawyering on the other side, who are running up bills, not solving problems, in creating problems where they're on scheduling a hearing or a deposition, and you have to send 15 e-mails back and forth. And I'm finally just said it, I'll object in court. I'm not going to keep playing this game. Or I get frustrated with the judges because either they don't know or they're making decisions, not based on law. There's no way to be able to tell what's going to happen. You lay it out for them and they're just ruling from a different playbook that you don't get to see.
Pete Wright:
It seems to me that we don't ever, ever want to go to trial, that that seems like the worst possible thing. But also, what happens when you have somebody who comes to you and says, "Under no circumstances are we going to settle? I want to go to court. I want to fight. I want to make it hard."
Seth Nelson:
Here's what they say. It's the principle of it.
Michael Lundy:
Oh, I have one rule about that.
Seth Nelson:
Oh, I got my story. You go first, Mike.
Michael Lundy:
Okay. And my rule is, I will fight about your principle on one condition. And the condition is, you're never allowed to complain to me about the bill. There's nobody who is fighting about principle ever feels that the benefit outweighed the cost by the time you get the end.
Pete Wright:
Principle is expensive.
Seth Nelson:
Yeah. I do a similar speech. I tell them this though. I said, "You just told me that's the principal. That's the core of who you are. I will never ask you to change your core. I'm not going to ask you. I'm never going to ask you again to settle on that issue, it's the principle of it. But here's what I don't understand, you're about to pay me a shit ton of money to go to court to get a government employee to agree with your principles. Why do you care what a government employee thinks about your principles? If they get it right and they agree with you're going to say, "Oh great, they agree." Who cares? And if they get it wrong, do you think you're going to reevaluate your principles? You're just going to say they got it wrong. So what the fuck are we doing? And give me a $20,000 retainer."
And then you go. As long as it's supported in the law and it's not a frivolous argument, if they want to waste their money, but I'm going to have this conversation, I'm going to have them sign the letter saying not to do it. Then we go from there.
Michael Lundy:
That really is what separates guys like Seth and me from other lawyers, is what we are not at all shy about being heavy handed with our own client clients and telling them what we think is right and discouraging them from going down an ugly path. I think that a lot of lawyers, particularly young lawyers or lawyers who are more motivated by short term greed, they just don't want to say something that they think their client isn't going to want to hear. And if you ask me, that makes you a shitty lawyer. If you can't deliver the bad news to your client or tell them what the whole realistic range of outcomes looks like, including the bad end of the spectrum, you are not serving your client. And I've routinely when people come into my office and say, "I'm going to talk to a couple of more lawyers." I say, "I think it's a great idea. I'll give you one piece of unsolicited advice. If a lawyer tells you everything that you want to hear during that consultation, run from that office. That is not a good sign."
Seth Nelson:
Absolutely. And you got to be able to deliver to the bad news. When chief justice Roberts was in his confirmation process, of course, a lot of stories come out about someone that's in that position trying to get confirmed in the Senate. And there was a story about how he lost a case in front of the Supreme court. And his client said, "I can't believe how could we lose nine nothing?" And Robert said, "Because there was only nine justices." It was that bad.
Pete Wright:
Wow.
Seth Nelson:
But he told him on the front end that we're probably going to lose this one and here's why. And you have to be able to explain it. And you also have to be able to explain to your clients, the process sucks. No one ever goes to build a house and says, "Oh my God, construction's going to be so much fun."
Right? And I tell them at the front end, "I cannot control this process. I'll do the best I can. I don't know who's on the other side." And what clients don't understand is, when I look at a case get filed, they come to me and say, "I've just been served." Or, hey, they come to me and, "My wife or spouse has hired Michael Lundy. What do you think?" I said, "That's the best news I've gotten all the day." And they'll say, "Well, why? I heard he's really tough in court." I said, "He is." They're like, "Well, why is it so good?" I said, "Because he's a good lawyer and good lawyers are going to solve problems. And I'm telling you, Michael and I are friends. We'll have wine together. We're going to do this afterwards. And that's going to help your case because I can text Michael and say, "I need to talk to you." He'll pick up the phone. We can solve the problems." You've got to be willing to meet halfway. We got to be able to figure this out.
And Michael and I have seen every type of case there's ever been. They're all just repeats with different personalities and different crazy stories. But it's all problem solving. And we got to lawyer on the other side that could do it. And ultimately, if we can't get clients there, Michael and I are going to tell each other, "All right, Mike, let's go tee it up, do your thing. I'll do mine." And we'll throw it to this judge who's been on the bench for 18 months.
Pete Wright:
And just see what happens.
Michael Lundy:
The people talk about the salacious moments that occur in a courtroom. You made somebody cry. One lady accused me of making her have a miscarriage because of my cross examination. I have heard it all.
Pete Wright:
Wow, wow.
Michael Lundy:
And people talk about those moments. That's a tiny fraction of what we do. The really hard work is done when I'm picking up the phone and having a conversation with Seth, it's seven o'clock at night because there something immediate happening and we are figuring out how to calm the situation down. That's the stuff that stresses me out, trying to really solve the problem. And that's where we spend 75, 80, 90% of our effort. It's just not the stuff that people are out there talking about because it's boring to the average person. They want to talk about that time you tore somebody up in a courtroom, but you're perfectly happy to do when forced. But it's not something that I seek.
Seth Nelson:
Right. And no one calls up and tells their friends, "It was Saturday over winter break, and I got a hold of my lawyer when he was on vacation and he got ahold of the other lawyer that they were on vacation and we worked out this problem." No one says that even though that's happened, right? And here's the other problem about going to court, not at the final trial, there're skirmishes along the way and the outcome of those skirmishes, can you just totally derail a case because someone wins and someone loses a skirmish and it emboldens one like, "Oh look, my lawyer's better. Yeah, I'm not going to settle now. I can go to court. I can go to court." No matter how much you tell your client, "Yeah, we won that one. But let me tell you, that's not going to help us in the wrong run."
Michael Lundy:
Yeah. I get that problem all the time where you started the case and somebody who makes all the money says, "I'm not paying the bills." Right? And then while they're not paying the bills and your client is super stressed out, panicking, calling you every day, worried about this, worried about that. The other side says, "Look, I'll settle the whole case with you." And they try to leverage all this anxiety and try to get a good deal. And my response to that is, "No, I'm not going to do that. When we settle these issues, then we'll talk about settling the whole case. And if they play hardball with that, okay, we'll go to court. We'll level the playing field. And after we're done with that, we'll see how you feel about that." Then you go to court, they get a black guy and they realize, "Wow, that doesn't feel very good." And so now all of a sudden they're open to having conversation about ending it.
And by the way, buddy, you're going to pay me to try to kick your ass. I never have understood that phenomenon where somebody knows they're going to be paying my bill to fight against them. Maybe they're testing the waters. Maybe they just don't get it. Maybe their lawyer's doing a terrible job of telling them what's going to happen, but you that's very typical.
Seth Nelson:
So when you're listening to this, Pete, and you're interviewing lawyers... We had a whole podcast on what you should be asking a lawyer on the front end, right?
Pete Wright:
Yeah. Right. Right.
Seth Nelson:
Is how can you improve as a lawyer? How do you practice law? How do you approach these problems? And you got to hear what they have to say.
Pete Wright:
Yeah. I like how Michael's point of, if they tell you just what you want hear, then run. I think that's a good starting place. Can we switch to mechanics a little bit? Because we've talked a lot about what it's like when it's not going well or how to stay out of court. Can you just walk us through if I'm listening to this and I think, "Okay, I do want to settle." What does that look like? What do the expectations that my attorney is going to have for me when working with opposing counsel? Or their expectations? Am I going to have to work with the other team? How does that work? Are we all in a room together? What does that look like? Briefly set the stage for us.
Michael Lundy:
There's a lot of different ways to settle a case. There's formal mediation, there's informal meeting and discussion. There's just going back and forth, lawyer to lawyer, or even at times I tell people, "Why don't you go sit down and have a conversation with your wife or with your husband and talk about this issue? Let's see if we can solve something small and start building some forward momentum" I really have to understand the temperature of the case. I have to understand the intellectual imbalance between people. I have to understand the financial sophistication imbalance between people, and you're juggling a lot of nuance to figure out what's the best path forward.
But to me, it starts with having enough information and then preparing with your client. Once everybody is on equal footing in terms of information and prepared, the lawyers should not have a major dispute between what's the best and what's the worst case scenario on the facts that you have. It's the same six issues over and over and over again in family law. So we all should have a pretty good sense of where it's going. And once the lawyers have a similar perspective on best and worst, people ought to be able to get to the middle and get on with it.
Seth Nelson:
And on that front, as I start with this, what are your goals? Whether they're broad or specific. It could be, I want to stay in the house. Okay. Well, there's a reason for that. What's the underlying reason because I want to stay in the house. I'm keeping the house as a position. What's the underlying reason for that position? Well, we can't afford private school. They're in a really great school district and they're going into middle school. And if we could just hold onto this house through high school, that would be really amazing. Right? Okay. Well, let's talk about that. What is the house worth? What's the debt, what's the mortgage. Let's get these finances. Are there other assets that we can offset? Are we going to agree to maybe keep this house for a while and then sell it when they graduate, then split the money so both parties are at equal risk on the value, right? There's ways to figure that out. But you have to get to the underlying interests and what they're really trying to do. Right?
Pete Wright:
Well, I was just noticing what happened to me because as you were talking, I was like, "Well, I want to keep the house because I like my house." But as soon as you said school district, I thought, "Oh, I totally relate to that." And I can see how both parents would completely relate to that. Right? Of course, we have to keep the house to keep them in the school that they know and love. And now it's not about us at all. It's about the kids.
Seth Nelson:
Exactly. And then be honest with yourself about a schedule. Pete, you know this, I got divorced when Kai was two and a half years old. I did not fight for a 50/50 time sharing schedule. I have Kai. I mean, now I have a 50/50 because COVID came in his mom and he decided it'd be better to go week on, week off. And he was 15, 16 years old at the time. It was just easier. It's easier for older kids. But I wasn't going to go to court and argue over 50/50. When I was building a law practice, I knew that at that stage it was going to be hard enough to be the dad that I wanted to be with 40% of the time. And it was more important for me to be present for the 40% than say 50% and be absent for 10.
Pete Wright:
Yeah.
Seth Nelson:
So be honest with yourself on what you can do. I had a case once with the like, "No, I'm going to get a nanny the whole time." I'm like, "You are an international airline pilot. Why wouldn't the children be with their mother?" Right? Its just not happening. You got to put them back in storage. You know?
Pete Wright:
Yeah. Right.
Seth Nelson:
So you got to be, I honest with yourself about what you can do, what you can't do, what's important to you, and then you can start getting traction and let the lawyers help you work the issues and figure out how to do it.
There's a million ways to settle the case like Michael said. We've done thousands of cases, nothing's going to be new. But getting to where you're talking to each other, and even if it has to go through counsel, Michael and I can pick up the phone and say, "Okay, Hey, what's the breakdown? And what information do you need? "Michael, I don't have any of these guys tax returns. My client has no idea about the finances. Can you get me the documents? Maybe I'll get a forensic that I might think I'll need some help explaining it to them. Maybe it'll be cheaper and quicker and faster if we can work that instead of going to court and arguing about what documents your client did give, didn't give, is hiding, didn't. What about that account? Oh, what about the profit and loss? Were they deducted all this stuff or they amortized something or they did X or Y with their business and they have retained earnings." We could go on and on and on.
And with someone that doesn't even know like, "Hey, I swiped the credit card. I think it gets paid." And a lot of people are in that position because that's how they've defined their marital roles. So when you're listening to this, you got to talk to the lawyers. Who's a good lawyer on their side? Who can you work with? And I've done this more than once. I've had people call me and much like with Michael, they say they're interviewing other lawyers. I'll tell them, "I believe very, very strongly about the attorney client relationship. If you're willing to share who are you talking to and I'll give you my unsolicited advice on those lawyers. And I'm telling you now for every single lawyer I tell you as bad, I'll give you the name of a good lawyer that you should go talk to." And I do.
Michael Lundy:
Really, because I think there's a lot more bad lawyers than good lawyers. I don't know if you can make good on that promise.
Seth Nelson:
Because when they get to three, I stop, Michael. [inaudible 00:43:58].
Michael Lundy:
Exactly.
Seth Nelson:
I mean there's a handful, right? We only have a handful of people, Michael and I would refer cases to in town. You know?
Pete Wright:
Yeah.
Seth Nelson:
And it's just for this reason, so.
Pete Wright:
Yeah. Yeah. And I know we've talked about this before, but in your estimation, you compare the length of time it takes you to get a solid non-trial divorce compared to going to trial and having the courts decide your divorce. How long is it going to take me on average? Is there an average?
Michael Lundy:
On average, I tell people they're looking at a six to 18 month process. Obviously, there are outliers situations. I have cases that settle immediately and I have cases that have gone on for two or three years. Usually, I see the same players on the other side of those cases that go on and on and on. Lawyers who it takes months to move the ball an inch forward. And it's a shame. It really is, because I firmly believe nobody's divorce should take longer than 12 months. I mean there's some exceptions to that because cases can have very complicated issues. But to me, if a case has complicated financial issues, they still should be done with the parenting part of the case in side of the year. There's just no reason to have them in litigation about something like that for that long.
Seth Nelson:
I use the exact same timeframe, six to 18 months. And the quicker we can exchange information and make sure everyone has the information they need to make decisions, the better. And that's usually financial. I will tell you, within the first four weeks of a client being with me, I really try to go over what a parenting plan looks like. They have all the information on parenting. You've been parenting this kid for 10 years. What do we need?
Michael Lundy:
The percentages. I hate the discussion about percentages. People are so fixated on 50/50. I'm like, on day one, you come in and, "I'm not settling for anything less than 50/50." I'm like, "Really? What do you think the difference is between 50/50 and 54/46? Because I know exactly what it is, it's one day a month, because I've had this same [inaudible 00:46:06] conversation 500 times. You don't focus on that. What you need to focus on is the quality of your experiences with your children. Your children remembers their experiences and their traditions. Not one child who went through one of these cases will remember that their parents were on a 54/46 schedule.
Pete Wright:
Yep.
Michael Lundy:
But they'll remember that their parents had to sit on opposite sides of the soccer field. I guarantee they'll remember that.
Pete Wright:
Yeah. Yep.
Seth Nelson:
Yep. And Pete, you know Kai's mom and I had a huge litigation battle. Neither one of us wanted his ass. "You take them." "No, you take him." Let me tell you, I've told that joke in front of Kai more than once and he knows it's coming. I love it. He can't do anything about it. It plays every time.
Pete Wright:
According to the National Institute on alcohol abuse and alcoholism, approximately 10% of children live with a parent with an alcohol use disorder.
Seth Nelson:
This is an alarming statistic as a family law professional who deals with custody cases regularly.
Pete Wright:
Finding the balance between the child safety and helping the child maintain a relationship with both parents is one of the hardest things to navigate. Add in the, he said, she said phenomenon that happens with divorcing couples who often weaponize alcohol use against one another. And the situation is even more difficult.
Seth Nelson:
All of this is why Soberlink has been one of the most important tools for my clients dealing with these issues. Soberlink's remote alcohol monitoring tool has helped over 500,000 people prove their sobriety and provide peace of mind regarding the child's safety. Soberlink helps keep the focus on the best interest of the child, which is really the most important part in a divorce case dealing with children. I've teamed up with Soberlink to create a parenting plan guide, to help people going through divorce that involves alcohol and children.
Pete Wright:
You can download today at soberlink.com/toaster. And if you take a look and you think you're ready to order Soberlink, just mention how to split a toaster for $50 off their device price.
Seth Nelson:
Our thanks to Soberlink for sponsoring How To Split A Toaster.
Pete Wright:
I want to change gears briefly because we actually have a listener question and we've been holding this one to have not one, but two attorneys on the show at the same time to weigh in. Anybody object to a listener question right now?
Seth Nelson:
Fire away. You're going to get four different answers even though you only got two lawyers here.
Pete Wright:
Perfect. Chef's kiss. Perfect. Here we go. This comes from Kate. Kate says, "My former common law spouse is a lawyer, though not a divorce or family lawyer. And I think he hasn't sought any legal advice. It's starting to impact our settlement negotiations. My lawyer feels he's misunderstanding somethings because it's complex and change and a changing field. Is there anything I can say to him this lawyer, not to divorce attorney that will convince him to seek his own legal help?"
Seth Nelson:
Oh, Michael, the look on your face.
Michael Lundy:
Well, because the first thing that comes to mind is, why don't you help me to see if I can control the person on the other side of this case? I'm totally out of the legal context here, but this is a very common phenomenon. Why will this person not change? Right? You can't talk sense into somebody that doesn't want to hear sense. For God's sakes, this gentleman's a lawyer and he doesn't know to get legal advice. If he were a dermatologist, I suspect he would not try to remove his own heart and replace it with a new heart. And I could use a million silly examples, but I don't try to fix my car because I have no expertise in fixing cars. So I don't know what to do because the real question is, how do I talk sense in this person that's just not making sense?
Pete Wright:
So that's what you think?
Seth Nelson:
Absolutely. And I tell it to my client all the time. They'll come to me with a question such as this. And I said, "Here's the problem. You are trying to bring a rational solution to an irrational problem." And they start repeating it back to me. I said, "They're not changing their stripes." Michael's heard it. A lawyer that represents himself has a fool for a client. You said this was from Kate, right, Pete?
Pete Wright:
Kate.
Seth Nelson:
Kate, send him a text. You've heard a lawyer that represents himself as a fool for a client. I think you should get legal counsel because I know you're not a fool. Right? You got to end with the positive.
Pete Wright:
Right.
Seth Nelson:
Maybe that will help. Maybe it's going to inflame him Kate. I can't promise either way. But the point is, this Zebra's not changing the stripes.
Pete Wright:
Hearing you guys talk about it, just reminds me, this is less a legal question and more an Oprah & Brene Brown kind of question. There's more going on here that maybe needs to be addressed. So Kate, thank you so much for writing in your question. There you have it. Send him a text and roll the dice on the inflammation.
This has been a good conversation, gents. Thank you so much, Michael. Thank you so much for joining the show here and talking to us a little bit about changing the tone of divorce.
Michael Lundy:
Thanks for having me, really appreciate it.
Pete Wright:
Where would you like to send people to learn more about you?
Michael Lundy:
They can go to olalaw.com or they can call me anytime. (813) 254-8998. If you don't call me, call Seth.
Seth Nelson:
Yeah. Here's the beauty. I was talking to a friend of mine and they're like, "You're really going to have an opposing council on your show?" I'm like, "Michael, doesn't get to represent both sides. We're good." He thought I was tearing into my practice.
Pete Wright:
That's the crazy part. I think of course there is this sense, this pop culture sort of sense that you guys should not like each other at all.
Seth Nelson:
Oh, it's ridiculous. And here's the other thing that I think is different about the practice of law and family law versus criminal defense or insurance defense. If you are representing criminal defendants, you're never getting the other side of that case because that's the state and they're the ones bringing the charges. You're always on the defense side. If you are a PI lawyer, slip and fall, you're always suing the insurance company. In divorce, one day I'm going to have the person with money, the next day I'm going to have the person without money. I'm going to have the wife on one case, the husband on the next. I'm going to have the primary caregiver on one case, and the one that doesn't really see the kids much on the next case. One day, I'm going to have someone that suffers from alcoholism, the next case I'm going to have the person who's married to the person who suffers from alcoholism.
We see both sides of the arguments all day long. And in one case you're going to make one argument, and the next case you're going to make a different argument. But in all the cases, you're solving the same problems. And that's why when you get a good lawyer like Michael, on the other side, he knows three months down the road we're going to be switching roles because of where our clients are coming to us. What are the problems? What are their issues? And that's what I like about this area of practice because I could pick up the phone and be like, "Michael, come on man. A year ago we had the same case, but we had the different clients. This is how we resolved it. Can we get these people here?" He's like, "I'm trying." So I think it's unique in our practice. And so you don't want your lawyers hating each other unless you want to spend a whole lot of money that's not going to get you anywhere.
Pete Wright:
You don't want your lawyers hating each other. All right. I think we just found a title. Don't let your lawyers hate each other.
Seth Nelson:
Mike, I really appreciate you coming on, buddy.
Michael Lundy:
Thanks for having me, man. Always a pleasure to talk to you.
Pete Wright:
And thank you everybody for downloading and listening to this show, we sure appreciate your time and your attention on behalf of Michael Lundy and controversially, Seth Nelson, America's favorite divorce attorney. I'm Pete Wright. We'll catch you next time right here on How To Split A Toaster, a divorce podcast about saving your relationships.
Speaker 5:
Seth Nelson is an attorney with Nelson Koster Family Law And Mediation with offices in Tampa, Florida. While we may be discussing family law topics, How To Split A Toaster is not intended to nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of Nelson Koster. Seth Nelson is licensed to practice law in Florida.
