THE TRUMP PLAYBOOK: STRAIGHT OUT OF DIVORCE COURT

                                                          by Karen Winner
 
The media has often been accused of being a willing propaganda tool to manipulate public opinion. But now, President Trump’s systematic denigration of the American media has made the media itself the victim of the smear. It is shocking to witness, but perhaps the media’s victimization will create more self-reflection and raise awareness to a vexing problem taking place in state divorce courts day in and day out, almost always under public radar: When innocent spouses are subjected to slander and libel, for the other side to gain the advantage. Dishonest spouse! Lying spouse! Sometimes, rather than defamation or libel, crude insults suffice in order for one side to gain advantage. By example, when New York Mayor Rudolph Guiliani was divorcing his second wife, Donna Hanover, Guiliani announced his plans for separation from Hanover to the press, without telling her first. Not too long afterward, his celebrity divorce lawyer, Raoul Felder, told the newspapers that Hanover was “howling like a stuck pig.”  Felder’s statement in the press, vulgarity aside, was a deliberately planned tactic to humiliate her so she would capitulate more easily in court. 
 
Spousal and domestic violence victims are libeled in court so the other side can gain the upper hand. When a spouse’s credibility is deliberately undermined in court, this translates to the judge not believing her (or sometimes him). The libel causes the judge to side with the libeler. This type of court abuse results in the most egregious miscarriages of justice: eviction from the marital home; removal of children from a good parent; the loss of one’s dignity and reputation, because the lies are memorialized in court documents, which become the “official” record.
 
Any amoral lawyer will tell you, it is relatively easy to destroy the opposing spouse’s credibility with the judge in order to gain a tactical advantage. There are absolutely no legal consequences for lawyers who resort to the cruel defamation and libel of spouses trapped in the system: lawyers enjoy immunity from slander and libel laws because anything they say in a court paper is “privileged.”  If a party (or the party’s agent — their lawyer)  makes a statement in court or in court papers, no matter how damaging or false, the libeler is protected from libel and defamation suits because the courts have a policy of wanting people to be able to raise claims honestly without the fear of being sued for defamation. However, this protection to be able to say the truth without risk of being sued, has been exploited, on behalf of the abusers and their manipulators.
 
Interestingly, President Trump’s personal trainer in the art of discrediting was none other than attorney Roy Cohn, who practiced divorce law in New York before being disbarred in 1986. An article in the Washington Post stated what Trump learned from his mentor: “Roy Cohn. . . knew how to instill fear through a simple formula: attack, counterattack and never apologize.” 
 
As some might recall, Roy Cohn initially gained notoriety as the counsel for red-scare-freak Senator Joseph McCarthy. Together, they ruined many, many innocent lives.  Later, as a divorce lawyer in New York, Cohn relied on ruthless smear tactics, and no doubt taught other divorce lawyers how to use them too in order to win for his clients. There were reportedly more than 90 complaints against Cohn before he was disbarred.
 
When Cohn was finally disbarred he used the same character assassination tactics against his victims who had complained against him. The Washington Post reported:  “Cohn called his accusers ‘left-wingers,’ ‘deadbeats’ and ‘a bunch of yo-yos just out to smear me up.’ The disbarment action, he said, was ‘a broad ideological question . . . . What McCarthy was accused of practicing is actually being practiced against me.’ 
 
Sound familiar? The victimizer as victim. 
 
Libeled divorcing spouses can teach the press that the denigration that takes place in court is not about bias, just as Trump’s denigrating of the press is not about Trump’s personal dislike of them. This denigration through slander and libel is a tactic, plain and simple. But does the media actually comprehend this tactic as a premeditated plan? It is designed to confuse the American people, so that they won’t know what to believe.
 
The defamed media might benefit from speaking to some of the libeled divorce victims in the courts because they have experienced what the press is only now realizing, the absolute shock of realizing that legitimate government function can be waylaid and the truth sidelined by agendas of the powerful few,  through calculated disinformation campaigns and subterfuge — orchestrated through government channels.
 
  There has been no attempt by court officials in the state courts to reign in the libeling of clients. Will there be powers in place to hold the Trump administration accountable?
 
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Karen Winner is an attorney in private practice in New York,  author of Divorced From Justice: The Abuse of Women and Children by Divorce Lawyers and Judges (HarperCollins, 1996) and adjunct lecturer at John Jay College of Criminal Justice, teaching “Financial Fraud in Divorce” and Business Law. She is working on a new book on The Marriage Contract.
 
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The Price Hillary Must Pay For Reaching for the Top

Watching Hillary Clinton ascend to the threshold of the Presidency of the United States is awesome because of her sheer mental strength. She has born the gigantic cost of a woman reaching for the top. She’s been attacked every step of the way by misogynistic antagonizers, and still she endures. They deride her mainly through sexism: Is she likable enough to be president? Likable enough? Would anyone have asked that about Lyndon Baines Johnson, or Woodrow Wilson? Is “likable” a qualification men need to lead the country?
The sexist attacks have been relentless against Hillary and go back to the 1990s during the time Hillary was First Lady. I was shocked when I heard radio commentators back then viciously deriding her for her hairstyle and making fun of the shape of her legs. The misogyny against her only escalated from there. MediaMatters.org has published “A Comprehensive Guide To Sexist Attacks On Hillary Clinton From the 2008 Campaign.” Hanna Groch-Begley, the author, cited to The Washington Post-printed blog post, in which writer Joel Achenbach claimed that Hillary Clinton “needs a radio-controlled shock collar so that aides can zap her when she starts to get screechy.”
Rush Limbaugh on his radio show, was quoted as saying: “Mrs. Clinton’s testicle lockbox is big enough for the entire Democrat hierarchy, not just some people in the media. And whether they have been taking steroids and the testicles are smaller than usual doesn’t matter. Her lockbox, her testicle lockbox can handle everybody in the Democrat hierarchy.”
Female commentators smearing Hillary with their insults were as sexist as the men. Mediamatters.org quoted Peggy Noonan from a Wall Street Journal column: “[Hillary Clinton] doesn’t have to prove she’s a man. She has to prove she’s a woman … She has to prove she has normal human warmth, a normal amount of give, of good nature, that she is not, at bottom, grimly combative and rather dark.”
Maybe these sexist devaluations of Hillary are expectable for the first woman destined to be President of the United States. The steep progress women have made over the past 160 plus years that is now culminating in a female leader of the nation, is causing back-lash against the leader-to-be. After all, it wasn’t so long ago that all women in this country — every color and creed — suffered profound, unimaginable discrimination. Women as a class were so inferior that until 1871, wife-whipping was acceptable and perfectly legal. It took an emancipated slave in Alabama to legally challenge the whipping she received at the hands of her husband, who turned the lash on her after she complained about the children being whipped. She took her husband to court over the attack and won.

Fulgham v. State Supreme Court of Alabama 46 Ala. 143, 146 1871 Ala. LEXIS 146. The high court affirmed the lower court’s conviction of the defendant for assault and battery.

The court justices in Fulgham v. Alabama ruled: “[A rod] which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjection to the husband. The husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husband’s slave. And the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law.”

Our grandmothers’ grandmothers did not participate in electing government officials, because they were deprived of the right to vote. Married women couldn’t buy or sell real estate because they couldn’t legally own any property in marriage. If a woman acquired any property on her own it automatically became her husband’s sole property. Women couldn’t go into business because a woman’s wages weren’t her own — her wages literally became her husband’s property. In divorce, husbands had the prerogative to automatically strip their wives of custody of their children. Women couldn’t become doctors or lawyers because colleges were closed to women. The psychological control over women was so complete that it affected women’s deepest beliefs, undermining our confidence, keeping women from competing in the world.
Then, without fanfare, the woman’s movement was quietly born on July 19th, 1848, in Seneca Falls, New York, when 200 women gathered at a chapel at the behest of two abolitionists, Elizabeth Cady Stanton and Lucretia Mott. Stanton read aloud The Declaration of Sentiments that vehemently condemned the deprivation of women’s legal rights under American law. Stanton and Mott were dangerous — they were radicalizing women to the idea that they could have the same rights and opportunities as men. It has taken all these years, for this radical idea to take root and grow — that women are equal to men. It had not yet taken hold in 1960, when women were still relegated to mainly three occupations — secretaries, teachers, and nurses. In 1966, the National Organization of Women was launched, heralded in by the writings of Betty Friedan, Gloria Steinem, Germaine Greer, Karen De Crow and Barbara Seaman (my mentor), among others. These writers urged women to educate themselves about their own health; to think beyond stereotypes of appearance and gender in the quest for self-identity; to take control of their own bodies; to question authority, challenge the status quo, which was male. NOW battled workplace discrimination, and lobbied for pro-equality laws. Then in 1971, the Supreme Court ruled that the Fourteenth Amendment’s equal protection clause applies to women. Reed v Reed, 404 U.S. 71 (1971). In 1973, the Supreme Court ruled that abortion is a fundamental right under the U.S. Constitution. Fast forward another quarter of a century to 1995: First Lady, Hillary Clinton stood at a podium on a stage at the United Nations Fourth World Conference in Beijing China, and against the advice of her advisors, proclaimed: women’s rights are human rights.
The next time Hillary is pilloried by a sexist insult, let us be certain of one thing: Hillary’s decision-making authority is not at issue. Furthermore, Hillary doesn’t have to be liked to be President. She is qualified, and just as tough and resilient. If the insults continue, as they probably will, rest assured she will take it on the chin. In her speech at the 2016 Convention, Hillary said: “More than a few times, I’ve had to pick myself up and get back in the game. Like so much else, I got this from my mother. She never let me back down from any challenge. When I tried to hide from a neighborhood bully, she literally blocked the door. ‘Go back out there,’ she said. And she was right. You have to stand up to bullies. You have to keep working to make things better, even when the odds are long and the opposition is fierce.” We can all draw strength from Hillary’s self-respect and power. No matter what, she is on her way to helping us make our way, as women, in a new dawn.

Karen Winner is an attorney in private practice in New York City, and the author of the nationally-acclaimed book, Divorced From Justice: The Abuse of Women and Children by Divorce Lawyers and Judges, (Regan Books/Harper Collins, 1996) which exposed the “divorce court industry” and injustices inflicted on women in divorce proceedings. Her findings were based in part on a groundbreaking report she wrote as a policy analyst for the New York City Department of Consumer Affairs. Her investigations — widely cited by the press — have initiated significant reforms in New York, California, and elsewhere. See attorneywinner.com Karen is also an adjunct Professor at John Jay College, in New York, where she is teaching a new course on “Financial Fraud in Divorce.”

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Prenuptial Agreement – Divorce Proof – Protecting Your Business in Divorce

If you or your spouse are thinking of obtaining a divorce, and you own a business, you need to be concerned. In New York, businesses are subject to divorce property law known as equitable distribution:  if the business was acquired after your marriage, it is fair game in divorce for distribution of a share of its value to your spouse. Unless you want to share your business with your ex-spouse, then you will need to consider options and strategies for keeping the business as separate property.

What can you do to protect yourself?

In advance of the marriage, obtain a prenuptial agreement. This is a contract between the couple that the business will remain separate property after the marriage. In any valid prenuptial agreement, there must be full financial disclosure — both of you need to know the full extent of each others’ assets before signing. You both need to be in full agreement, and you can’t coerce your significant other into signing it.  There are strict formal requirements for doing a prenuptial agreement, and if it is not done correctly it won’t hold up in court.

If you are already married, it’s still not too late. You can obtain a postnuptial agreement. It’s similar to a prenuptial agreement, but both spouses enter into it after the marriage.

There are also other ways to protect yourself as well. When you are ready to obtain a prenuptial or postnuptial agreement, or to find out how else to protect your business and keep it separate, so that it does not become a marital asset, we can help.

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The Stigma of Changing Attorneys

If you are in a divorce proceeding,  there may come a time when you decide to change attorneys. You might have good reason to change attorneys: maybe the attorney didn’t file papers on time, or won’t return your calls, or is ignoring your directives or is milking your case for fees without doing productive work.  However, the mere fact that you exercise your absolute right to change attorneys won’t help against an aggressive opponent who may try and use it as a tactic to undermine your credibility with the judge.   When the judge hears:  “She’s already had four attorneys. Four attorneys!!!”  that is sometimes used as code to the judge to view you negatively as a difficult client: the perception is that you have no good reason to change your attorney, are wasting money with a new attorney,  and don’t deserve to obtain an award of legal fees from the “monied spouse” for the new attorney. In fact, I have this situation in a case right now, where the client has been stigmatized by changing lawyers. I can’t tell the Judge that the former lawyer wasn’t up to doing his job because he was ill, (which I know to be true) and left the file in total disarray. I asked the former lawyer to inform the judge that he couldn’t prosecute the case and that it was in the client’s interest to change attorneys. But the former lawyer refuses to disclose this to the presiding judge.  (I actually asked him to draft an affidavit and take responsibility, but he refused.)  He explained to me that he’s in front of that judge nearly every day, and it could damage her favorable impression of him if he were to admit the truth. 

If this should happen to you, the judge may have to be gently educated that people in good faith often change lawyers in divorce cases. One attorney in her article on Huffington Post, said that half of the cases she handles were first handled by another attorney.  See http://www.huffingtonpost.com/carla-schiff-donnelly-/divorce-attorney_b_4003476.html.  At a legal fee arbitration in which I was representing the client against her former attorney, the arbitrator herself said it is well recognized that clients change divorce attorneys all the time, so there should be no stigma against the client.

Here’s an idea:  If the New York court system would lift the secrecy from the lawyer disciplinary system and allow the public to find out the number of complaints have been lodged against a particular attorney, maybe clients wouldn’t need to change attorneys so often, because they would have had the opportunity to avoid those attorneys with the most complaints lodged against them —  indicating patterns of alleged misconduct.  The client would know how to protect her-himself before it’s too late – after the lawyer hiring agreement is signed.  In my work to rescue the family courts and families from attorney misconduct, misrepresentation and greed, I can tell you in the past twenty years,  the same attorney names came up over and over again when people have called me to complain. Certainly, it’s no secret to the disciplinary and grievance committees which attorneys have the most grievances against them.  So isn’t it time to let the public know too? It is time for the matrimonial bar to shed some light on the myth that the client is just being difficult by changing attorneys, and to acknowledge that changing attorneys may be the only way for a client to protect her or his case against an undisclosed ethically-challenged lawyer.

WHEN IT COMES TO DIVORCE LAWYERS’  LEGAL FEES,                    SILENCE ISN’T GOLDEN

 by Karen Winner

     New York divorce lawyers have dusted off a 300-year-old archaic, merchant law in order to obtain quick and easy judgments for unpaid legal fees against unwary clients.  Account stated claims, as they are known, have recently gained wide acceptance in the New York courts to the dismay of legal consumer advocates who contend they are unfair and dangerous to legal consumers.  The courts’ rationale for account stated doctrine is simply this: if the client does not object to the attorney’s billing statement, the client’s silence amounts to approval of the attorney’s bill, and the implied promise to pay.

     While it is generally known that unscrupulous debt collectors who buy debts in bulk typically use account stated claims to avoid having to prove contract terms, it is lesser known that lawyers use the same doctrine to avoid having to prove their fees are reasonable. The courts typically rule for the attorney if he or she produces a billing statement, along with a sworn-to statement that the client did not object. The court will attribute the client’s failure to object as a silent promise to pay whatever total dollar amount the attorney shows on his or her invoice.

With an account stated claim, a client will similarly get slammed in court if the client pays part of the attorney’s bill instead of not paying any of it.  The same legal rationale is at work: if the client pays part of the bill, the client must have approved of all of it, and the lawyer’s billing statement becomes, voila  – a pre-existing debt, with the client’s implied promise to pay.

Any divorce client becomes easy prey for a lawyer’s account stated claim because most clients are either too intimidated or fearful to object to unreasonable bills while their attorneys are still actively working on their cases. Often, a client won’t even know what to look for,  according to Emanwel J. Turnbull,  an International & Comparative Law Fellow at the University of Maryland’s Francis King Carey School of Law. “A consumer would need mathematical and legal knowledge, not to mention time and expense, which they do not possess,” he writes, in his recent law journal article, Account Stated Resurrected: The Fiction of Implied Assent in Consumer Debt Collection, published by Vermont Law Review.

In  Mr. Turnbull’s view, judges are assuming facts without knowing if the facts are true or not, to approve lawyers’ account stated claims.  “A consumer’s failure to dispute a bill does not equate, in the mind of the consumer or the business, to an agreement that the bill is accurate and a promise to pay it. This is simply an archaic fiction,” he writes.  Also, “It is not a rule or an accepted practice among consumers that ignoring a bill is the same as agreeing that it is right.”

According to Mr. Turnbull, account stated doctrine was in disuse for most of the last century and only recently was resurrected with the growth of the debt buying industry which purchase defaulted consumer credit card debts in bulk.  When reached for comment on this article, Mr. Turnbull expressed surprise that New York lawyers are also using account stated claims — against clients in family law cases:  “In Maryland, the general reaction of attorneys to the words ‘account stated’ is a blank look – which is perhaps just as well for their clients,” he said in an e-mail, adding: “If New York prohibits attorneys from charging unreasonable fees, then the courts shouldn’t allow an ancient common law doctrine to override that policy, but it appears from [case law] that account stated does influence their decisions.”  You can read Mr. Turnbull’s entire article here:  38 Vt. L. Rev. 339 (2013).

By way of example, in the 2005 New York case of  Bartning v Bartning, a panel of appellate judges justified their decision to overrule a  Manhattan trial judge who had rejected the lawyer’s account stated claim for the amount of $9,686.24 against his former divorce client. The appellate court judges expected the client to object to the bill if there was any problem. They ruled that it was up to the client to prove the lawyer wrong to their satisfaction, which he did not. The ruling stated in part:

 An account stated claim exists where a party to a contract receives bills or invoices and does not protest within a reasonable time (see Herrick, Feinstein LLP v. Stamm, 297 A.D.2d 477, 746 N.Y.S.2d 712 [2002] ). Here, appellant [lawyer, representing himself] sent out regular invoices, including the final one, to which he received no objection. In response to the petition, plaintiff, pro se, [the former client, representing himself] failed to establish that he objected in a timely fashion to the invoices; rather, he merely asserted in open court that when he got the bills he raised to appellant his belief that the bills contained overcharges. Plaintiff’s response was insufficient to raise an issue of fact precluding summary judgment on appellant’s claim to fix his lien for his fees as billed.

       In the next entry,  I will take a look at the inconsistent and contradictory views of the New York courts in determining how long clients can wait to object to their lawyer’s billing statements in order to successfully challenge an attorney’s account stated claim.

Remember, to be a Winner at Law, information is key.

Karen Winner, an attorney and legal consumer advocate, is the original author of the the Statement of Client Rights (New York’s Court Rules, 22 NYCRR 1210.1), and author of the nationally acclaimed book, Divorced From Justice: The Abuse of Women and Children by Divorce Lawyers and Judges, (ReganBooks/HarperCollins, 1996.). Ms. Winner is currently working on an update of her book. For more information, see Winneratlaw.com

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When It Comes To Divorce Lawyers’ Legal Fees, Silence Isn’t Golden

WHEN IT COMES TO DIVORCE LAWYERS’  LEGAL FEES, SILENCE ISN’T GOLDEN

 by Karen Winner

New York divorce lawyers have dusted off a 300-year-old archaic, merchant law in order to obtain quick and easy judgments for unpaid legal fees against unwary clients.  Account stated claims, as they are known, have recently gained wide acceptance in the New York courts to the dismay of legal consumer advocates who contend they are unfair and dangerous to legal consumers.  The courts’ rationale for account stated doctrine is simply this: if the client does not object to the attorney’s billing statement, the client’s silence amounts to approval of the attorney’s bill, and the implied promise to pay.

While it is generally known that unscrupulous debt collectors who buy debts in bulk typically use account stated claims to avoid having to prove contract terms, it is lesser known that lawyers use the same doctrine to avoid having to prove their fees are reasonable. The courts typically rule for the attorney if he or she produces a billing statement, along with a sworn-to statement that the client did not object. The court will attribute the client’s failure to object as a silent promise to pay whatever total dollar amount the attorney shows on his or her invoice.

With an account stated claim, a client will similarly get slammed in court if the client pays part of the attorney’s bill instead of not paying any of it.  The same legal rationale is at work: if the client pays part of the bill, the client must have approved of all of it, and the lawyer’s billing statement becomes, voila  – a pre-existing debt, with the client’s implied promise to pay.

Any divorce client becomes easy prey for a lawyer’s account stated claim because most clients are either too intimidated or fearful to object to unreasonable bills while their attorneys are still actively working on their cases. Often, a client won’t even know what to look for,  according to Emanwel J. Turnbull,  an International & Comparative Law Fellow at the University of Maryland’s Francis King Carey School of Law. “A consumer would need mathematical and legal knowledge, not to mention time and expense, which they do not possess,” he writes, in his recent law journal article, Account Stated Resurrected: The Fiction of Implied Assent in Consumer Debt Collection, published by Vermont Law Review.

In  Mr. Turnbull’s view, judges are assuming facts without knowing if the facts are true or not, to approve lawyers’ account stated claims.  “A consumer’s failure to dispute a bill does not equate, in the mind of the consumer or the business, to an agreement that the bill is accurate and a promise to pay it. This is simply an archaic fiction,” he writes.  Also, “It is not a rule or an accepted practice among consumers that ignoring a bill is the same as agreeing that it is right.”

According to Mr. Turnbull, account stated doctrine was in disuse for most of the last century and only recently was resurrected with the growth of the debt buying industry which purchase defaulted consumer credit card debts in bulk.  When reached for comment on this article, Mr. Turnbull expressed surprise that New York lawyers are also using account stated claims — against clients in family law cases:  “In Maryland, the general reaction of attorneys to the words ‘account stated’ is a blank look – which is perhaps just as well for their clients,” he said in an e-mail, adding: “If New York prohibits attorneys from charging unreasonable fees, then the courts shouldn’t allow an ancient common law doctrine to override that policy, but it appears from [case law] that account stated does influence their decisions.”  You can read Mr. Turnbull’s entire article here:  38 Vt. L. Rev. 339 (2013).

By way of example, in the 2005 New York case of  Bartning v Bartning, a panel of appellate judges justified their decision to overrule a  Manhattan trial judge who had rejected the lawyer’s account stated claim for the amount of $9,686.24 against his former divorce client. The appellate court judges expected the client to object to the bill if there was any problem. They ruled that it was up to the client to prove the lawyer wrong to their satisfaction, which he did not. The ruling stated in part:

An account stated claim exists where a party to a contract receives bills or invoices and does not protest within a reasonable time (see Herrick, Feinstein LLP v. Stamm, 297 A.D.2d 477, 746 N.Y.S.2d 712 [2002] ). Here, appellant [lawyer, representing himself] sent out regular invoices, including the final one, to which he received no objection. In response to the petition, plaintiff, pro se, [the former client, representing himself] failed to establish that he objected in a timely fashion to the invoices; rather, he merely asserted in open court that when he got the bills he raised to appellant his belief that the bills contained overcharges. Plaintiff’s response was insufficient to raise an issue of fact precluding summary judgment on appellant’s claim to fix his lien for his fees as billed.

In the next entry,  I will take a look at the inconsistent and contradictory views of the New York courts in determining how long clients can wait to object to their lawyer’s billing statements in order to successfully challenge an attorney’s account stated claim.

Remember, to be a Winner at Law, information is key.

Karen Winner, an attorney and legal consumer advocate, is the original author of the the Statement of Client Rights (New York’s Court Rules, 22 NYCRR 1210.1), and author of the nationally acclaimed book, Divorced From Justice: The Abuse of Women and Children by Divorce Lawyers and Judges, (ReganBooks/HarperCollins, 1996.). Ms. Winner is currently working on an update of her book. For more information, see Winneratlaw.com

 

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