10.P. "This is not how I do lawyering"

Attorney Christopher Corbett's colleagues consider him mild-mannered. Born under the astrological sign of Libra, he likes to keep things in balance.

His hope to mediate this custody case has evaporated by May 9, 2008, when he finally agrees to represent "Tracy" against "Barbara." Corbett knows that the two women's financial resources are completely out of balance.

With her parents' help, Barbara can wage a costly war at Family Court, while Tracy, who had served in the U.S. Air Force after 9/11, has been hit hard by the recession in 2008. A displaced veteran, she collects unemployment insurance and drives a taxi to make ends meet while training to enter a new field.

On May 21st, Judge Laureen D'Ambra appoints Attorney Kerry Rafanelli guardian ad litem. He requires the litigants to hire his friend, psychologist Judith Lubiner. He talks about them getting psychological evaluations from yet another favored court psychologist, John Parsons. The mounting bills produce gut-wrenching terror.

Corbett knows the severe limits on Tracy's income and works through the summer to draft a three-page settlement on August 21st that preserves joint physical and legal custody "without the interim mediation offered by Mr. Rafanelli," since "we are substantially in agreement."

Rafanelli responds by summoning both mothers to his office "to schedule a joint mediation session" and adds: "At that time I will develop a comprehensive Guardian Order for entry with the Court."

Barbara's attorney, Cynthia Gifford, writes that they want to work with Rafanelli and that her client has decided Jenny will have a "no cell phone policy." The girl can talk on the landline with her other mother only once or twice a day "for a reasonable length of time -- ten or fifteen minutes," which suggests ignorance about pre-teens and about healthy parent-child relationships that encourage adolescents to talk more, not less.

Gifford and her partner, Cherrie Perkins, are fully engaged in this case. Both attend most court hearings--an unusual investment of time and money for two principals of a law firm. Gifford pleads the case; Perkins sits behind her--often accompanied by friends and family (but no longer wearing the spurs I described on January 15th).

As I research the history of the case, I find that sometimes Perkins has come to court alone--appearing solo before Judge D'Ambra on April 24th, 2008, and solo before Judge Raymond Shawcross on September 10th, 2008, after he rotated to Washington County.

Twenty days after Corbett produces the three-page settlement, Perkins ignores his work and takes a single page to court. The transcript and order show she is doing something much the same as she did with Judge D'Ambra at the start of the case (see 10.N. "A color-of-law case," March 19, 2012).

(Click once on documents to enlarge.)

At first, Judge Shawcross and Attorney Perkins talk about Attorney Rafanelli's expanding role since Judge D'Ambra appointed him on May 21st. Now he is trying to mediate between the girl's mothers.

"He is wearing many hats," says Perkins, and Judge Shawcross responds: "As long as he doesn't wear the robe because that's mine."

At the bottom of the next page, the judge asks: "Has all the discovery been completed?"

This is an important question, since the court has statutory requirements, including deadlines, for collecting evidence--the "discovery" phase. Litigants would never waive these unless both sides are confident they have collected all the evidence--clearly not true in this case.

Perkins says something she was never authorized to say: "I don't believe they're going to do any discovery, Your Honor."

"Okay," says the judge. "You waive discovery." Amazingly, he instructs Perkins to write it into the agreement.

If this were truly an agreement that the parties had reached through mediation, it ceases to be that the moment Perkins insertes: "5. The parties waive discovery."

The certification page raises other questions. I would not quibble if Attorney Perkins signed her partner's name and then scrawled her own initials beneath the certification. But if she mails the document to the opposing attorney on September 10th--the same day she appears before Judge Shawcross and modifies the supposed agreement between the parties--she clearly violates the Court's rule to notify the other side in a timely fashion before submitting orders for a judge to sign.

I'm just guessing here--based on Gifford and Perkins' signatures on their 2011 letter to the Judicial Nominating Commission:

When I go back to the original "Consent Order" of May 21, 2008, I wonder if Attorney Corbett has ever seen the document that Judge D'Ambra signed:

Tracy recalls how the escalating conflict astonishes Corbett until he explodes in Rafanelli's office: Is this what you're trying to do--cut [Tracy] completely out of [Jenny's] life, because that's what it feels like!

Finally Corbett tells Tracy: "This is not how I do lawyering." She calls the Volunteer Lawyers' Program at the Bar Association. Corbett withdraws, and Attorney Susan Pires enters her appearance on October 22, 2008.

Tracking Tracy's resourcefulness over these four years--her ability to find principled lawyers and therapists when the Court seems to be playing games without rules or umpires--resembles the way in which she had encouraged Jenny to pursue countless extraordinary opportunities in their first twelve years together.

The history of this case also shows how much Jenny lost by being forbidden to freely communicate with this mother during her teenage years.

Artwork from a book "Tracy" and "Jenny" worked on together.