The Chancery Court does not prosper under black and white thinking. The issues presented revolve almost exclusively around the things that happen behind closed doors and deal with the most precious things in our lives. Custody disputes, conservatorship, guardianships, divorces, and even disputes amongst neighbors and business partners seldom have an all-or-nothing resolution and, as such, viewing your case as a zero-sum game is short-sighted strategically and extremely short-sighted outside the court house.

As a quick refresher, a zero-sum game basically refers to a mindset where if one person gains then another necessarily loses. If I take an inch, you lose an inch. If I get five dollars, someone loses five dollars. Gains and losses exist in perfect balance.

There is an attractive simplicity in the balance of zero-sum thinking, but such thinking stands inapposite to the goals of the chancery court: equity. The mandate of the chancery court is to craft equitable remedies to issues in which the law cannot designate a set remedy (very generally). Unlike the circuit courts that apply fact to laws and provide resolution based on those laws, the chancery court has to apply laws to facts and craft the result based on those facts, with the mandate of doing equity i.e. be fair. For example, in a car accident case the law defines negligence, it sets out traffic laws, and sets out damages, the attorneys put on a case to present their version of the facts, arguing that they either do or do not satisfy the law, and the jury (or judge) then makes the decision. The judge basically calls balls and strikes if it is a jury trial and just applies the facts to see if they satisfy the law in bench trials. On the other hand, the chancellor must take a broad set of laws that provide broad governance to behavior and figure out the appropriate response. For example, there cannot be a specific mandate regarding custody because every custody case is different. Zero-sum thinking, which requires a clear winner and loser, simply does not work in family courts because there are no real winners and losers. Everything happens on a spectrum. Therefore, if you go into the court viewing your case in such black and white terms, you will simply miss the boat altogether. What you are asking for is, by and large, impossible.

More importantly, it also stands inapposite to common sense. If you think only in terms of winning and losing, you have already lost. In a legal world in which your relationship with the other parties often continue to some degree after the case is resolved, being the burn it all down party or the even just the overly bitter party is a poison pill. The court is going to see who is the grudge holding jerk and who is the person who sees the situation for what it is.

In the custody context, if you consider your ex getting time with the children as you losing time with the children, you are building resentment immediately into the co-parenting relationship. If you build resentment into the co-parenting relationship, you will make your kids miserable and will dilute your case if it ever does have to go back to court. The inevitable litany of pettiness and passive aggression is like flicking the same spot on an apply over and over again, eventually that spot will rot right away regardless of how soft you flick it. You will go back over a serious issue, but you’ll either emphasize the wrong thing because that is what has driven you crazy for years or your legitimate complaint will get buried in a sea of whataboutism.

In a property settlement context, locking in so tight on if they get it, I don’t get it mentality forecloses effective negotiation and effective litigation. To the latter, the problem is obvious. Wanting things simply so the other side does not get it makes you look like a petty fool. The former is perhaps more devastating. In Mississippi, property is divided equitably, which, again, is most easily understood as fair, not equal (giving an able bodied 42 year old doctor 1/2 of of the entire estate and his disabled wife of 20 years 1/2 of the estate and no alimony is not fair, he will continue to earn a substantial sum while she will be sitting in a leaking boat). Because the estate is viewed as a whole and the court has a great deal of discretion in how it divides the estate, isolating on any one asset or debt not only shows your hand but misses the point. In negotiating a property settlement agreement, you want to get a better deal than you are likely to get in court. You weigh all the risks, including the cost, financially and emotionally of trying the case, the emotional toil of dragging out the divorce, the size of the estate, and your needs, and then make a personal decision as to what you are willing to agree to. Your lawyer will advise you of your rights and the likely outcome, but it is the client who has to make the final call. Obviously, if you are judging things from a zero-sum perspective, you force yourself to either take massively damaging and unnecessary risks or to settle for something much less than what you are worth (for some people, punishing themselves or being overly conciliatory is a real issue). However, if you view in gradient degrees, you can make the more effective assessment of value and risk, and, if you are smart, exploit the zero sum thinking on the otherside, whether by negotiating what you want based on some erroneous point the other side is making or showing their true character on the stand.

Ultimately, you should know the rules of the game you are playing and the Chancery Court is simply not playing a zero-sum game. If you insist on playing in that manner, be prepared to get left holding the bag.

After a successful morning in court, I decided to talk a bit about guardianship and conservatorships. I go a bit more in-depth below the video.

We do a lot of good in my practice. A big part of my success centers on my belief that whatever we do, we do it for the right reasons. If I agree to represent you in a divorce it won’t be because you paid me but because I believe that I can help you not just in the courtroom but also help you improve your life and your kids lives. Similarly, in a custody case, I will only represent a parent if I believe I can help that child have a better life, which means that is what my client must want too. We don’t do revenge and we don’t do petty at the Pavlov Law Firm.

However, some of the things we do are specifically designed to help those in need the best interest standard for custody of children shares this mandate, though people’s motivations vary). Guardianships and conservatorships are an example of an area of law that is designed solely to help those in need. Without diving too deeply into the specifics of the law, suffice it to say that the court’s sole focus in any guardianship or conservatorship matter is the protection of a vulnerable person, whether that person be a now grown-up disabled child or an elderly parent dealing with dementia or other health issues.

Here is a common fact pattern to illustrate how this works: A client comes to see me because their elderly father is suffering from dementia and needs help paying bills and arranging medical treatment. The client’s initial thought is to have a Power of Attorney drawn up, but, obviously, the father’s capacity would render the Power of Attorney suspect at a minimum. Further, the power of attorney does not help set the parameters of the client’s acceptable powers (POA’s are broad, which is part of the danger) and it can be revoked. Further, if the client has brothers or sisters, particularly if they lean a bit self-involved, self-righteous, and/or selfish, operating under a POA could lead to very complicated allegations. I also find that ethics can become quite complicated for a person with a POA over their elderly parents. All the work that goes in to helping someone with such needs can be overwhelming and a generous gesture from the parent can quickly be interpreted as overreach or taking advantage by the adult child.

The guardianship and conservatorship solves these issues. The court’s oversight and the process for establishing the guardianship and conservatorship forces transparency. Ultimately, there will be no question over the correctness of the guardianship or conservatorship as the burden of proof is quite high, if easily satisfied based on obvious infirmities. Moreover, the conservator is a fiduciary and therefore holds major responsibilities to the Ward and must act in their best interest, something that is a lot easier to do when you have a black robe reviewing everything. The funds will be properly placed into a conservatorship account and the conservator will have to do an accounting each year. Anyone approved by the court will be able to review the accounting and, of course, the judge will review it. Further, the court will also set budgets when appropriate and approve major expenditures and sales of assets, while providing the conservator enough flexibility to hopefully handle the ward’s affairs without much judicial oversight.. So if the house is sold, well, the court will have had to approve it, but the day to day things will not until the accounting. Any question or concern from any interested party can be brought to the court and transparency is essential so no one should fear these questions. And since this is all pretty much set in stone, most folks have very little interaction with the court after the conservatorship and guardianship is established other than the accountings because the court is not there to make these things harder. The court is there to help the Ward. If there are problems, bring it out in open court and let the black robe make the hard calls.

This does not mean that Guardianship and Conservatorships are easy things. It is a major burden to act as someone’s Guardian and Conservator. It is a selfless thing to do and most people do not get paid for doing it, though there are provisions for pay in some situations and for reimbursement of expenditures made on the Ward’s behalf, including, potentially, the establishment of the guardianship and conservatorship. Further, the court’s feelings about what is best for the Ward may differ from the client’s, but that possibility is inherent in any matter in the chancery court that focuses on best interest. Still, if you are working truly for the best interest of the Ward, the court and the client will ultimately end up on the same page (with good lawyering).