Ann Gushurst | Alumni Stories | Spring 2020 | NEXUS Magazine | The Faculty of Law | UNB

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A conversation with family lawyer Ann Gushurst

The law school recently launched a new podcast to help connect our students with the UNB Law community and to inspire them during the difficult transition of COVID-19. In the inaugural episode, Michael Marin sat down with family lawyer Ann Gushurst (LLB ’97), senior counsel with Griffiths Law PC, just outside of Denver, Colorado. The pair discussed her law school experience, her award-winning career, and her passion for the fight for civil rights that has led her to pioneer many LGBTQ family law issues, including serving as co-counsel in the case against Colorado's Defense of Marriage Act (DOMA) laws. Here are a few highlights from their conversation.

Do you remember your first day of law school?

Oh yes, it was like getting out of stay-at-home motherhood prison. Just for context, when I went to law school, I had a one-year-old, a three-year-old, and a five-year-old, and I had literally spent the last six years pregnant or nursing, so it was so exciting to be back on a university campus talking to actual adults and people who could go to the bathroom by themselves.

I remember the first day we had Professor Gochnauer—apparently, he was a Vietnam draft dodger from the States. He gets up on the desk and sits in the lotus position and everybody is looking thinking “what is going on?” Nobody could get over the fact that he was this guy in blue jeans sitting cross-legged on his desk…I really enjoyed my professors. We had Dan Hurley for criminal law; for a midterm, he decided to spoof everybody, and I think 80% of the correct answers were C, so people were writing the exam and freaking out.

Is there anything that you would do differently if you were to do law school all over again?

I guess I didn't think about what I was going to do next, [law school] was just sort of one foot in front of the other for me, and in hindsight, maybe I would have taken trusts and estates. Other than that, I really got a lot out of law school. I looked at law school as getting the secret decoder ring that finally explained how everything works. I think most attorneys and law students are focused on litigation as the primary manifestation of how you work in law, and that's just wrong because the vast majority of attorneys don't go into litigation—they go into government and into companies. Law is the language that allows commerce to work, it's the language that we use to form our society, and when you look at it from that perspective, the type of broad-based approach that UNB has always taken is extremely helpful.

So UNB’s broad-based curriculum is something that you saw as an advantage?

I can't even tell you the advantages that it gave me. I'm mostly in the realm of dealing with people who went to US law school, where people take very segregated courses in whatever they're interested in. Of course, everybody thinks they can do family law, so every time there's a recession we get all the civil attorneys and criminal attorneys dipping their oar so to speak—they have no idea. When you do high-end divorces—which is the kind that I sort of specialized in—if you don't understand formation of business, if you don't understand trust law, if you don't understand what fiduciary duty is, it's really hard to give your clients good advice without bringing in other professionals.

In family law, we routinely have business issues, out of the state issues, criminal law comes to bear, bankruptcy right now is a big thing. These are all areas of the law that you need to know. I think it was in property law that we learned about writs. I know what a writ is, and I understand the abolishment of writs and where you find them and how they interact with legal rights—the vast majority of the attorneys I practice with have not even heard of them.

You've become a leader in family law. Is that something you were always interested in, or did that develop over time? 

Oh, hell no! I was not the least bit interested in family law. I started out at Gilbert McGloan Gillis in Saint John, which was the only law firm that made me an offer. I realized that working full-time in general practice was fairly difficult. It wasn't so much the law work itself, but the expectations of a larger firm are difficult for single parents. My dad got sick, so I moved back to the States to take care of him, and I actually went in-house for a couple of years and did telecommunications law. I decided to go out on my own. There are really three types of practice you can do in the states without being in a big firm. One is bankruptcy—which is not something anybody like me would be good at—and one is criminal law, where you're dealing with criminals and there's a lot of after-hours work. The natural place to go was family law. It was not a deliberate decision, but it's been a good fit. There is no bigger stage of human drama and emotion than [family law]—it's been an education every day of my career.

It wasn't a deliberate choice, but then you excelled at it, and you reached the top of the profession in that field. What do you attribute that trajectory to?

I have a passionate sense of justice—a very strong streak of being intolerant of injustice. Family law is difficult in that it is increasingly overburdening our judicial system, which was designed to not really deal with divorce. I guess what really got me going in family law was realizing the tremendous impact it has on people's lives and the scope for getting the legal system to be better.

Our laws were not recognized in same-sex marriages. One parent in all of those cases had no legal rights to their children. I was representing a woman who had been in a same-sex marriage, their relationship fell apart and the other mother took the child and moved out of state, out of the country. The court said “you're not a legal anything to this child,” and I thought this cannot be right. So first I found a legal theory to establish a legal parent-child relationship with this child and this mother—it was the first time that had been done in Colorado, and the second time only nationwide. Then I convinced the LGBT bar that we should sue the state and change the [DOMA] law, and we did.

What do you think is the next frontier in equal marriage in the US? What's the next thing that has to be accomplished?

The last frontier for common law marriage jurisdictions—which Colorado is one—is ascertaining that once the [DOMA] law was struck down as unconstitutional it was void ab initio, meaning that it was as though it never existed. We've just had three cases, two of which were same-sex couples, go before the supreme court to determine can the court retroactively recognize a same-sex relationship that had all the hallmarks and indices of common law marriage.

There's two parts of that, one is how can people be married during a time when they knew that they couldn't be? I think the court is going to answer that marriage is an act and if you are acting married, you're supporting each other, you're married, whether or not you said in your mind “I’m married.” The second problem is that in Colorado the seminal case requires that there be a bit of additional proof because there's that notion that you have to be wary of people who could have gotten married but chose not to—and “are we trapping people who didn't intend to be married?” That's a huge problem in today's society, where living together doesn't mean you intend to be married to that person or having sex with them doesn't mean you intend to be married, owning joint properly doesn't, having children [doesn't]. We've just changed so much.

The flip side of that, for same-sex couples, is if you are living a closeted life how are people going to recognize that you've been in a committed marital relationship? Our test is not only "do you have to have consent," but you have to have lived openly and held yourselves out to the community as being married. We run into that problem quite a bit, people who could have lost their jobs if they were openly out as being in a same-sex relationship…The problem is that it is more of a shift in societal norms than it is a shift in the legal reasoning.

I think that the next frontier is going to be actually that as couples get together going forward—both same-sex and straight couples—more and more of them are not getting married, but that doesn't mean that they don't have children, and that one person doesn't take on the brunt of this part of the work and not this part. I think that in terms of what we used to argue for LGBT couples, which was joint endeavor quantum merit, unjust enrichment, detrimental reliance, all of those arguments are going to shift from being just LGBT relationship arguments to being everybody's arguments because people aren't getting married at the same rate but they're still enmeshing their lives. It's a question of how do we organize as a society.

I know you're very interested in alternative dispute resolution (ADR). How important is ADR as an alternative to litigation?

The law reflects society—you can change the law, but if you don't change the underlying assumptions, things don't really change. The best example of that is no-fault divorce. When people go through a no-fault divorce, that feeling of being vindicated doesn't appear. ADR is important because it's a modality for us to change that expectation. Unfortunately, most people doing ADR are attorneys, and we are in a black and white think pattern, so we approach ADR the same way we approach litigation. For ADR to be transformative, you have to get away from the win-lose mentality. Unfortunately, the law ignores the emotional reality of the people seeking solutions—from that perspective, it's very incomplete. It doesn't do somebody a lot of good to get a wrongful death [payment] if what they're upset about is that they weren't treated with respect; it doesn't help to win sole custody of your children if you end up damaging them because they don't have a relationship with the other parent. It’s just so nuanced, and the law is not nuanced, it's fairly black and white. That is a problem when it's applied to human beings.

Do you think that it should be other professionals, or should we be changing the way we train lawyers for ADR to work properly?

It's a debate in the collaborative law community, whether or not you can be a collaborative attorney right out of law school—before you learn all your bad habits—or whether you need to understand the legal underpinnings of divorce and have practiced in that arena legally before you can do good collaborative law. Over the years I’ve been on both sides of that debate.

The other thing about law that's particularly problematic in the context of family law or even in medical malpractice—which is what I did before I went to family law—is that we present fact-finders with only the facts we think are relevant. Having somebody make decisions for children, who doesn’t understand psychology and child development is dumb, it's just dumb. So, do I think attorneys should be trained differently? Yes and no. I think that they should still understand the legal standards but you can't be a good family law attorney if you don't have empathy. You just can't, and if you don't understand the damage you do psychologically to a family system that's a big problem too.

It sounds to me like you can never really separate yourself emotionally from your clients. In fact, your emotional connection to your clients is probably one of the things that has made you very successful? 

You have to be really careful not to become enmeshed with your client perspective. Part of being a zealous advocate is giving your client advice that they need to hear but don't want to hear—that's what a good advocate does. You cannot be objective if you're completely sucked into the mindset of your client—perspective is really important. Don't pick a fight your client doesn’t need. Understanding your clients’ needs is critical because people feel very vulnerable going through a divorce—it's a loss of identity, a loss of earning time, a loss of financial resources. If you don't have empathy, they are going to feel brutalized, not just by what they're going through, but by the process.

Can you talk a little bit about how you see pro bono fitting into your overall practice?

A fair amount of my practice has always been pro bono, and one of the great advantages of my law firm is that they made it possible for me to support myself and do pro bono work—for that, I give them a tremendous amount of credit. I would not have lasted this long had I not had that ability to do the cases I really thought were important.

Pro bono is really an access to justice issue. I concentrate my pro bono work on appellate work. The problem is that if you create the idea that everybody's covered because we're doing all this pro bono work you ignore the bigger problem, that law is increasingly out of the financial means of people who need it. That's particularly true in probate and family law cases. Some people are more protected than others based upon what they're willing to sacrifice financially.

Do you have any advice for law students? What should they be focusing on in law school?

I think one of the most important things about legal education is understanding the historical context of what the law does and what it's set out to do and to analyze how that serves or doesn't serve present-day society. A lot of people ignore administrative law, but it's critical, and you have to understand the brilliance of it and the limitations of it. You have to understand how legislation works.

Conflict resolution is a lot of what we do, but law is a lot of other things too. Regulation is a huge area of law that isn't taught…There's just so many areas of law that we don't think about in law school because we're thinking about law and order, we're thinking about the courtroom scene, but law is everywhere. It's the fabric of our society. My advice to law students would be to look at that and to realize that it is so much more than litigation. Litigation's the tip of the iceberg in terms of how law impacts us, and you really need to have a bigger perspective because, as an attorney, you will be impacting other people your entire career. You have so much to give back to our society in terms of potential and understanding and helping to be part of the solution and not part of the problem.

To watch the full conversation with Ann, and other episodes including The Hon. Wade MacLauchlan and The Hon. Graydon Nicholas, please visit unb.ca/lawpodcast.

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