May 2009 Archives

May 26, 2009

Sotomayor, Judicial Activism, and Personal Beliefs....

Irrespective of your political viewpoint, it is hard to watch what judges do and be able to say that their personal experience and beliefs don't enter into how they rule.

I've watched judges for more than 3 decades, up close and personal.  In court and in chambers. Worked for and litigated in front of.  Any objective observer has to admit that the most important thing when  a judge rules is that he or she wants to reach a particular conclusion - then, it's trying to find the statute or case law that allows a ruling consistent with that desire.  Sure, there are many situations when the law is so crystal clear that a good judge feels compelled to make a particular ruling, but so much is left to discretion, so much immune from appeal, that these almost seem to be a rarity.

The judicial system we inherited from the English goes back almost a millennium - it has always been dependent on a judge deciding which statutes or prior rulings apply to a particular set of facts.  Usually, the facts of the case before the judge is a variant of prior rulings, or a statute is ambiguous - the judge applies his or her experience and bias to decide which rule applies - if no rule is on point, a new one is created out of imagination.  The law grows, and develops.

Is it fair?  Maybe not.  Is it predictable?  Not always.  Is there a good alternative?  Not to my knowledge.

Do I want the laws and rulings that seemed appropriate in 1880?  Not at all - we've learned a lot since then. How about 1780?  Well, the Founding Fathers had a lot of good ideas:  The main one is the balance of powers to keep any one branch of government from going it alone too far off in one direction or another.

What about that Constitution?  Why does it have so many vague provisions? "Due Process of Law":  What does that mean?  It certainly isn't a clear standard.  Only the justices appointed to the Supreme Court can tell us how to apply that standard to the facts of a particular case, and give us guidance for similar cases that occur in the future. 

Do we want them to develop a rule based on the specific beliefs of a founding father who lived in a society that was predominantly rural, women couldn't vote, negroes counted as 3/5th of a person when counting slaves for purposes of apportioning representation - although they couldn't vote?  Beliefs that never knew a vehicle could travel 130 mph, that goods could be ordered in days between states using the Internet, that a rifle could fire hundreds of rounds per minute, that a ballistic missile could go half way around the world with a bomb that could kill millions in 1/2 an hour?  Beliefs that could not have imagined air travel, television, real medicine, and other scientific discoveries?   

Two centuries ago, farming was within the skill level of most of society, and factories almost unknown - there were few large, dense slums - periodic boom/bust cycles of capitalism didn't affect the entire nation as they do today.

If we expect our judges to pretend they know what the Founding Fathers would have done in our modern society, we are bound to be disappointed.  Our system is designed to learn from itself and the experiences we have had over time.
May 23, 2009

Cooperation, and the Desire to Find a Solution....

Yesterday, I promised a follow up about a better result.  Let me preface this by saying that last week I praised two lawyers with whom I occasionally come in contact, for their desire to find solutions to their client's problems, resulting in fairly inexpensive, low stress cases - I refer matters to each of them.  Looking for a solution is they way to solve problems - looking to win generally creates more of them.

Several months ago, I had to deal with the fairly young associate of an attorney with whom I always have had a good working relationship.  The associate was hostile and aggressive, and dragged me in to court on an ex parte basis [these are emergency matters, where notice must be short].  I objected that there was no emergency, I needed time to gather information from my client to respond, and there was nothing the court would do on short notice - she insisted on dragging the case in front of the judge.

The judge continued the matter to give me time to figure out what the dispute was about, as I had predicted.  When the associate said she was going to charge my client with contempt of court for not paying support, the judge responded "No You're Not! I expect the two lawyers to negotiate and work this out between them."

The next week, when her boss was back in his office, he and I discussed the issue and the problem went away.  We found a simple solution to a mistake that was no fault of my client, and the matter was resolved.  The difference?  The lawyers were trying to solve a problem, not win an argument.  It would be nice if all cases went as smoothly.
May 22, 2009

Intense Competition, Need to Litigate, Part Two:

April 19th, I posted about problems with an overly competitive lawyer.  This week, the latest episode had the lawyer attempting to skulk off after biting off more than he could chew - even whining in court didn't offer any daylight for his motion.  The story is illustrative of the need to win and the inability to find solutions for a problem, ultimately leading to far more costs to the clients, his own as well as mine.

My client had a support obligation - he paid support in chunks as he got paid by his employer, primarily by transferring money into a joint bank account from which his wife made withdrawals - admittedly, he didn't keep a log of what he'd paid, but he thought he was current.  Along the way, his wife made a couple of transfers out of some joint assets for which he thought he should get credit.  Overall, he thought he was current, especially since she had taken money out of their joint accounts.

The outcome?  Keep reading....

Rather than try to discuss his claims so we could find out who was right, this lawyer ignored by letters setting forth the husband's claims, and simply filed a motion with the court to have his arrearages set.  I filed my client's story, and it appeared he had actually overpaid, even if we didn't count the money his wife had taken.  

At the very last minute, the lawyer then set forth a lengthy declaration trying to explain his client's response to the husband's assertions.  The judge looked at the mess, and concluded there was too much disagreement - a lawyer was appointed as a special master to review all the documents and claims, and make a recommendation to the court - a special master would have more time than the judge could devote to a complicated dispute involving a lot of paperwork.

Continue reading "Intense Competition, Need to Litigate, Part Two:" »

May 21, 2009

Collecting Support from Trusts and Estates.....

When I studied for the California Certified Specialists examination 20 years ago, one of my study mates [Cheryl Tomac, since retired] created a mnemonic for a long list of possible enforcement remedies for family law orders.  I'd list it here, but it's a little bawdy.  

Of the 20 or so on the list, none referred to how you get money from a trust or estate - it's one of those little known, and rarely used, procedures.  Let's say that the person obligated to pay support draws income from a trust, or is a beneficiary of Aunt Mildred's will.  You can't just obtain a writ of execution or garnishment from the court and serve it on the trustee or executor - there are special procedures requiring petitions to the Probate Court.

If you didn't even know you could do this, or didn't know how to do it if you thought about it, you should contact a Certified Specialist in Family Law, someone who has the expertise to help you collect - perhaps someone who knows the mnemonic that lists the other 20 possible remedies.
May 11, 2009

Cost of Technology & the California Divorce Lawyer....

One consideration in choosing an attorney is his or her investment in, and commitment to, technology.  This can be important in deciding whether he or she can serve your needs.  While computers, software, and online services may not lower your cost, they should increase the level of service, and have become a necessity. 
In San Diego County, with about 150 certified family law specialists, the level of technology in many offices has become quite high.  A well equipped family law office needs to be tech savvy.  
It's a lot more than e-mail and word processing.  For about 20 years, California has had child support "guidelines" that can realistically only be calculated by a computer program.  I use quotes because California's guidelines are essentially mandatory figures.  These programs take the parties' gross incomes from various sources, calculate state and Federal income taxes, apply custody time share, and provide the judge with the amount of child support to be ordered.  That amount is mandatory in almost every case.  

Without a computer, it is no longer possible to estimate child support for purposes of guiding the client or negotiating a settlement, except in unusual situations [such as a zero custody timeshare for one parent].  Beyond word processing, this has become an almost elemental use of technology for family law lawyers, and saves endless hours and provides accurate data - although there are websites that provide calculations, they are primitive, and don't allow the data to be provided to the lawyer and client in useful ways.  With a dedicated support program installed, for example, a lawyer can quickly try different scenarios, such as shifting tax exemptions, and plan for better tax consequences for the parties; he or she can show the after tax effect of support, how the net incomes are split between the parties, and the impact of different tax strategies.

The need for computers doesn't stop there. Networked computers allow lawyers and paralegals to access computer files with ease - no more "sneaker net" to share files, no more running floppy disks around the office or to and from you home.  With a virtual private network, we can access our files remotely: For example, while negotiating a settlement in another lawyer's office, working from home when a staff member is ill or must care for a sick child, or sitting at the courthouse.

High speed scanners allow incoming mail and documents to be converted to electronic files, then immediately transmitted to clients or opposing counsel.  We can save $5 in postage [or $20 for FedEx in a rush], and yet get copies of the opponent's document production or court pleadings the day received - this permits faster turn around, and better preparation for court.  
Sure, you can use a fax machine, but that is 1980's technology [actually 1970's] - paper jams, toner cartridges to replace, fuzzy print, a phone line, and constant monitoring - faxes are labor intensive and provide a poor quality copy - and they usually require the client to have a working machine, turned on and operating.

Continue reading "Cost of Technology & the California Divorce Lawyer...." »