July 2009 Archives

July 26, 2009

Police, Overreaction, Race, and Politics....

The recent story of Prof. Gates and the Cambridge cop has been blown all out of proportion by the media, trying to make it a racial issue to further divide Democrats from Republicans. I agree with the President that the cop did something stupid - it's not a racial issue, just an overreaction to a fairly minor incident, and the President didn't assert it was anything else. [Perhaps the stupidity was in the mouth of the "journalist" who asked his opinion in the first place, during a press conference on health insurance.] The professor probably acted stupidly as well, but we'll never know what really happened.

A similar problem occurred in Cardiff [coastal San Diego County] a few weeks ago where a woman about 67 was wrestled to the ground and handcuffed, after apparently refusing to tell a cop her date of birth - he'd come to her house with a helicopter and about 7 squad cars on a noise complaint about 9:00 p.m. in the evening - the noise was an amplified speech by a female candidate for Congress, speaking at a fund raiser in a residential neighborhood.

The woman was offended by the cop's attitude, and attempted to shoo him off by saying "you know where I live and my name, why do you need my date of birth." From there, the problem escalated into a stupid act by the cop - both immature participants were white. [There were some political overtones, such as the name calling by the reporting neighbor who had allegedly been yelling from the bushes.]

Maureen Dowd's column in the New York Times fairly summarizes my views of the Gates situation. Although the races were different, the attitudes were about the same. This type of thing seems to happen a lot, and it's not racial, although in that case the anger came out in racial tones - we all have our hot buttons.

A few years ago, I was stopped by a CHP officer for using the shoulder to go around a truck that was stuck trying to access a freeway where all the traffic was stopped for construction. I had seen the officer in my rear view mirror as I avoided the truck and knew I was doing nothing wrong.

He was angry that I had gone around the truck, and argumentative - I tried to suggest he had discretion not to issue the ticket, rather than trying to argue the law, but that seemed to make him more determined: "I use those shoulders", he responded, as though what I had done could have endangered him had he been giving a ticket. I sucked it up, politely accepted the ticket, and set the case for trial.

At trial, the same jackbooted officer [a motorcycle cop] arrived loaded for bear. I presented the judge the statute that allowed what I had done. The officer was rabid in his defense of his action, and amateurish in his rejection of the statute - adamant that it couldn't mean what it said - perhaps a part-time night school law student. He couldn't allow me to have the last word, acting as a bad prosecutor over and over again, firmly committed to the idea that he was right. I was acquitted, and was he angry. I fear running into him again. Maybe he had a friend killed during a traffic stop on a shoulder, and that was a hot ticket item for him - from my standpoint, he merely looked foolish and wasted a fair amount of my time.

I've known a number of police officers well, and the overwhelming majority would never have acted as he did, never have wrestled a middle aged white woman to the ground in her own home, or handcuffed a middle aged professor with a limp simply because he was angry and yelling at them. Let's not make this a national issue, when we have a health insurance crisis, two major wars, and an economic catastrophe to occupy our minds. It's just two testosterone driven people who pushed one another's buttons.

July 24, 2009

Investing in a Law Practice, Overhead, and Costs of Doing Business....

Periodically, I get to complain about the high cost of being a Family Law lawyer. Last week, my network printer hit about 500,000 pages, and we'd been having periodic service calls - I had pledged to order a new one when we inserted the last laser cartridge - they run about $180 each, and I thought I'd try to squeeze out the last of them, and have a standby when it ran out - the printer cost $2500 when you could buy a car for that sum. I thought I could never burn it out, but who knew we'd print that much.

Unfortunately, one of the paper trays was pulled out to fill it, and wouldn't slide back in. So we decided to limp along with one tray, plus the envelope feeder. Then the remaining try started jamming. End of the road, I figure - cheaper to waste the new cartridge than pay for a service call. OK, so I got my money's worth, but it was supposed to last forever.

The direct replacement for an HP 5Sx we've been nursing along for the last year, is about $2500, delivered, and weighs close to 100 pounds. Individual printers for each staff member that last a long time just take up too much room, so when I bought this office, I decided networking would save each staff person desk space. Saturday, I get to bring in several people to help me cart off the old one and put the new one in place, so we can be up and running by Monday.

The copier is at around 1,000,000 copies - when we bought it we got a super deal - we had a close relationship with a repairman, who found a very slightly used machine for us, and replaced every conceivable part - essentially, it was brand new, and has served us well. Our service company got bought up by another company and it won't continue to fix the machine since it sells a different brand, so a new one is on the horizon. The new cost for the existing machine was $18,000 [no, I didn't pay anywhere near that], and my connection is long since retired - looking toward paying retail for a new digital/scanner/printer/copier/whatever it does. I feel like any day it will stop working.

Then there's our $3200 scanner. I know someday I'll need to start buying a service contract and having someone deal with that - it has been running daily for 1 1/2 years. It's been absolutely reliable.

Amazing how the paperless society has created so much paper. It's certainly helping me contribute to the economic recovery. And I won't talk about the new carpet and paint.

July 24, 2009

KGTV, Crappy Reporting, and Family Law Experts...

Last week, I bemoaned the hit piece by a local TV station's amateur reporter, Lauren Reynolds of KGTV, the San Diego ABC-TV affiliate.

Well, one of my colleagues tried to set the record straight. Last week she sent the vice president of the station a lengthy rebuttal to the biased report, including readily available public information, copies of publications, and written statements from witnesses.

An apology? A retraction? Nope! Seems the station acknowledges there is a difference of opinion, is sticking by its report, and not telling the other side of the story. Since I now know what they claim is journalism lacks integrity, I won't be watching the news there any longer. Sorry Charley [Gibson], but you're off my list of favorites, along with your cohorts.

July 21, 2009

A Unique Take On ADR to Solve Marital Problems...

Last Friday, a not too well liked or respected lawyer who practices family law was arrested. The allegation was that he had found a new way of alternate dispute resolution [ADR] to solve his divorce problems: According to the San Diego Police Department, the lawyer had repeatedly solicited others to murder his estranged wife, who had a restraining order against him. Early this week, he was released when the DA announced they were still investigating the case because they didn't have enough information to ensure a conviction.

Now, it could be a husband sarcastically saying "I'd like to find a hit man to get rid of her," or some similar comment without real intent, or....

Among lawyers the arrest fell into the "I hope he did it and gets convicted" category. Much like the obnoxious, lying pig of a lawyer a few years ago who died [originally of unknown causes] in his mid-50's - everyone was hoping he's been murdered - vicariously imagining someone taking the life of a miserable human being [although I'm sure he was nice to his wife and children, most of the family law bar despised him].

Phones were ringing off the hook as lawyers called to alert their friends, and confirm their alibis, and joking that the list of suspects was the San Diego phone book. Many were depressed when it was disclosed he died of a heart attack - certainly not the joy of thinking of someone literally ripping his heart out.

Nearly 30 years ago, an attorney named Richard Crake was murdered at his front door in a gated community - same jokes, but the most likely theory was that it was a former client, former opposing party, some member of the bar association, or someone else who learned to hate him - turned out to be employee of a man who claimed Crake owed him $100,000, who hit him in the head in an attempt to intimidate him into paying.

It's not that we really want these people convicted or dead, it's just our way of hoping there is justice, even though not direct - like Al Capone going to jail for tax evasion.

July 16, 2009

Divorce in San Diego, Hiring Experts, Custody Disputes, and KGTV.......

Currently in San Diego, there has been a flurry of stories, e-mails, telephone calls, and gossip, relating to a well-known and well-respected psychotherapist who has been sued by a person who apparently didn't look too good in the doctor's evaluation in a custody case. In general, lawyers and therapists in the family law community are outraged that the doctor, who on advice of counsel is saying nothing, has been tarred by a member of the media based on the ravings of a losing litigant in a custody dispute [like you'd expect the loser to be rational on the subject].

The reporter for KGTV in San Diego never bothered to discuss the case with well respected experts in the field before doing a hit piece on television, or at least didn't quote them - to compound the problem, a local "dog trainer" ran a similar story containing massive amounts of misrepresentations because its "reporter" only listened to one side of the case. They obviously didn't care how experts are chosen and what is important - I can attest to the fact their resumes are largely irrelevant.

I have never used this particular therapist to do evaluations in any of my cases, although I believe he had been appointed to treat some of the children over the years. I have known him only by reputation and an occasional brief conversation at one Bar function or another over the last 25 years - I doubt I have had a total of an hour of discussion with him in that period - we have no personal relationship, but I have a great deal of empathy for him and his position at this stage of an illustrious career. I can add my 3 decades of experience to help non-lawyers understand the situation.

Allegedly, there are several minor misstatements claimed in his 5 page resume - I checked several of the claims against a 3 year old resume of the doctor I received at a seminar where he spoke - I couldn't find that he'd made the claims I checked, let alone that he was wrong, or lying. He has no need to pad out the resume. The "investigation" shows he is not a member of a couple of organizations with names similar to those he has listed, but obviously not the same.

Some local TV reporter [a field populated by those whose primary qualifications relate to which makeup counter at Nordstrom they frequent, and I've know quite a few] has chosen to listen to a few disgruntled litigants, rather than the lawyers and judges who rely on his reports year after year to ferret out the ferrets in our cases, hopefully so that children will be protected, or even just grow up happier. Neither reporter bothered to speak to legitimate sources for their opinions of the dispute, just a handful of the parents he has examined and treated. Typical slash and burn, leaving wreckage in their wake.

I have a few stories that come to mind as a result of this story. In one, a friend was sued after being appointed by the court as the children's attorney - the lawyer recommended more time to one parent - the other sued "on behalf of the children" claiming the lawyer had committed legal malpractice in reaching the conclusion - that parent tried to be in charge of their case, although they lived with the other. The case went nowhere, but the lawyer had to pay an insurance deductible and sit back and worry for months until the case was dismissed - this lawyer had been a valuable resource to the courts for years, but as a result decided there was no upside to continuing to be paid to act as minor's counsel [often at $60 per hour by the court, which doesn't cover overhead], and hasn't done it since. Novel legal theory, but really just the ravings of a dissatisfied parent.

A second friend was a therapist for young children whose parents were trapped in a custody battle. During therapy, the children asked that the therapist to do something to protect them from their father - a declaration was written to be used to gain some protection while the court sorted out the issue. Probably at the instigation of his lawyer [affectionately known by some as "The Dick", and described by others as "soulless"] the father, after losing the custody dispute, tried to have the therapist's license to practice suspended. After thousands of dollars in defense, the therapist was vindicated, but remains gun shy whenever the thought of being involved in the court process comes up. When we try to find therapists for children in custody cases, the vast majority refuse if there is any chance they may be required to testify - a huge loss to the public, and the courts.

The third case is the other side of the coin. A client came to see me on referral from a friend/lawyer who felt the case was too hotly contested and that the client needed someone stronger than she wanted to be. The first thing I did was tell the client he didn't present well [a euphemism for a bad personality] - at my direction, he sought counseling with a therapist I recommended. Over a period of several months, he changed when he realized how others saw him. He went from a 20% time share to primary care - not by suing the prior therapist in the case, but by recognizing that he had some impact on how he was perceived. When the case ended, I got a note from him that I had changed his life - I was shocked, as I had done so little - he had changed his own life, I just confronted him on his conduct.

Fathers in custody cases generally fare more poorly than mothers. It's not that they are bad parents, it's primarily that they were less involved when the family was intact - the courts generally end up preserving the status quo, which means that the mother generally ends up with more time. Some fathers resent that outcome, but it is predictable based on their role during the marriage. Some are just bad parents [there are a lot of mothers who are just as bad]. Some lawyers exploit the fathers' resentment, without trying to explain why there appears to be prejudice, and what can be done to overcome it [which may take a few years of changed conduct].

We need to understand that the courts have insufficient resources to resolve complicated custody disputes. As a long time judge has said "I don't get paid to make the right decision, I just get paid for making decisions." They need therapists and lawyers willing to take on these cases to give them guidance, without fear that the media will listen to the disgruntled loser and fail to present a balanced view of the issue.

In the case in the news, the court didn't help: It's response was that judges don't check out the resumes or credentials, they rely on the lawyers to do so.

I regularly pick experts for custody evaluations, therapists, appraisers, income analyzers, etc. - I rarely even see their resume, and generally don't care what is on it - I rely on the advice of friends and colleagues, and my own experience using or watching them. Are they pretty consistent in their opinions? Can they support their positions if they are called to the witness stand without folding up under cross examination? How much do they charge? Do they prepare reports in a timely fashion? Do they consistently view the world from a biased perspective [such as routinely siding with mothers or fathers, for example]? Are they well respected by other lawyers and judges, so their reports help settle cases?

The resume? I only care about it if the expert is on my side and I need to qualify him or her as an expert at trial. Do I care whether someone listed himself as a "Fellow" of an organization, when in reality he was a "Diplomat" because that is the label it puts on its members, or that he says he was a member of an organization 10 years ago, but isn't paying dues any longer or otherwise lost interest? Do I care whether an organization to which he belongs has any standards? NOPE! I just want him to do a good job. And, I have no way of checking out the organizations to know whether they exists or have any requirements of membership.

I acknowledge that about 10 years ago a "therapist" was exposed for lacking an important certification and degree when someone pinned her down during cross-examination, and everyone was shocked. The person had started out providing a service, and somewhere along the line a few lawyers started asking for reports - although not qualified to write them, they were written until a diligent lawyer tried to determine whether she was even licensed to do the work she had taken on. That is hardly the case here - the therapist in the news has been well tested on the witness stand by the best, many times, and always comes out unscathed.

We need a free press, but it needs to be responsible or it is useless. Here, it has done some real damage to the future of child custody litigation. KGTV owes an apology to the public, the courts, and the therapist for shoddy reporting, yet its reporter is sticking by the story she told solely through the mouths of troubled people, while doing an inadequate job of confirming the allegations she reported.

July 4, 2009

Divorce in San Diego & Health Insurance....

As we form our political and social views we are, of necessity, influenced by our personal experience. Those of us with money or jobs tend to have had health insurance all of our lives - in the family in which I grew up, not having coverage was unthinkable. In business, health insurance was historically a way of rewarding employees, keeping employees, ensuring a healthy, productive, and secure work force, and helping them keep their minds on work rather than the health of them and their family members. I can't imaging not having coverage, and not offering it to my employees.

I provide health insurance for my staff for all these reasons - on the one hand, it gives me an advantage over my competitors who don't offer the benefit - of greater importance to me is that people I care about don't feel they cannot go to the doctor when they have some minor problem [like a chest pain] out of fear of the cost of an office visit.

And, I don't want them to worry that their children might get sick, and they can't afford to care for them. But more than health care affecting me as an employer, as a Family Law lawyer it affects my clients every day and creates problems for many with which we must deal.

Each week, in one case or another, this is an issue we face. Sometimes it is as "simple" as trying to convince a client he or she needs to make insurance a higher priority, or guiding the client in a job search to a profession where it is routinely provided by employers [large companies, public agencies, etc.] Of greater difficulty is explaining to the soon-to-be ex-spouse that health insurance will soon run out, or may be extended for a number of months at a high rate. Lately, the job choice doesn't exist.

Commonly known as COBRA rights, many larger employers are required by state or Federal law to extend benefits to former employees or their former spouses as an extension of their prior policy. The COBRA cost is supposedly approximately equal to the regular cost of coverage [without subsidies, plus a small handling charge]. Sounds like a good deal? Last month I saw my first quote that caused me pause: My client's ex-wife would be paying more than $750 per month to keep her existing coverage after the divorce - she is in her 40's - that sum is not within her budget, but pre-existing conditions also keep her out of the market for a policy on her own.

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