Divorce And Mediation Blog

My office retired a copy machine a few months ago, having worn it out - more than 2 million copies ran through it. The replacement is faster but also scans and e-mails. We make a lot of copies, and buy a lot of copy paper. It has been her long enough that we became attached to it and the repair man who came more and more frequently to replace parts.

The need for a reliable machine came to mind when we received about 800 pages of photocopies, wrapped with rubber bands, no staples and no organization, from another law office. It is what they represented as being the "client's file." We inherit such files a few times a year when we take over a case for a client.

On those rare instances when we turn a file over to a successor law firm, we make copies of most everything in it. But, we make and keep the copies for ourselves, in case a question comes up somewhere along the line, which happens occasionally. We don't keep the original file in those instances - the original, under California law, belongs to the client. We must pass it along to the next lawyer or to the client upon request at the end of our representation.

Continue reading "Divorce Lawyers and the Client's File..." »

Somehow, I stumbled across this article about people fighting over custody of their dogs in divorce cases. Written in 2006, it discusses appellate court decisions on the subject, and the author's opinion of changing standards.

Historically, dogs were personal property. As I recall, there used to be California cases saying that cats weren't property, because no one could actually own a cat, but for this purpose I'm not going to research the subject to find such cases.

Lawyers in North County [San Diego] where I practice tell about a major trial over ownership of a parrot some decades ago, involving two very litigious attorneys who have since probably joined the bird in the hereafter. We all laugh at the absurdity of people spending 10's of thousands of dollars over custody of a pet. Now I appreciate their attachments to an animal, but essentially they are gambling that the judge will see it their way.

In a website that attacks judges and lawyers in San Diego, there are tales about courtroom fights in our county over dogs and cats, including a lengthy trial over Fifi - one-half of the 3-day trial was allegedly devoted to the animal. I understand an attachment to pets, but the Wife's fees in the case ran about $150,000. The article was critical of lawyers charging outrageous fees over such issues. I won't list the website, as it's largely run by a disgruntled litigant, who is occasionally right, but often wrong - he [or she] is anonymous, and seemingly from Beverly Hills.

In general, it isn't the judge's fault that such cases are litigated, something the site claims. It's the fault of the litigants who have more money than common sense. In part, it's lawyers who don't manage their client's expectations, or warn them of the risk and cost of going to court.

The lesson to be learned from these cases is that people don't often understand their own best interest, and will fight over a cause or principle, rather than over something that makes economic sense. For $150,000 you'd think it would make sense to buy a great dog, hire a full time trainer for a few months, then take the animal to Europe for the summer and develop a relationship with it. But that's just me.

I showed up in court a few weeks back for a 9 o'clock court appearance. Traffic was light, I arrived and parked about a block and a half from the courthouse, walked into the courtroom, and found the judge had already started the calendar and was on Item #8 [I was #2]. I checked in with the bailiff, and was the only one of the three lawyers on my case to have done so.

I then went back and sat down, opened my briefcase, and leaned back to wait for one of the other attorneys to appear. I casually looked up at the courtroom clock, and it said 9:01, as the judge called case #9. When the judge got to the end of the calendar, he started back at the beginning, looked over and saw me, and asked whether I was waiting for opposing counsel. I said I was.

I got up and casually walked to the back door, and as I exited the courtroom found one of my opponents coming it, assuming that he had plenty of time to get there for calendar call. We turned around, went back in, told the judge we needed 60 days to resolve some discovery issues, the judge thanked us, and we left.

Outside the courtroom, we were both dumbfounded. Each of us had left in time to arrive by 9 o'clock, assuming that the judge would be several minutes late, as judges usually are.

There are some days you just cannot get to court on time. Negotiating the I-15 to Highway 78 interchange can be a disaster. It seems everyone slows to a crawl because of something like a cardboard box lying empty on the side of the road, and the whack-o's who drive the Highway 78 corridor can't help but stop and look in case they might miss some bargain, a dead body, or free oranges.

My companion then claimed that another lawyer was "the worst". This is a lawyer who proudly trumpets that he the winner of "the coveted 128.5 award", routinely provided by the Certified Family Law Specialists' Committee of the San Diego County Bar Association to someone who is habitually late, files frivolous motions, etc., although basically a jovial fellow. My companion said that this lawyer had called his office on one occasion to find out what time he would actually show up, apparently trying to find out how much leeway he had in getting to the court on time. He eventually arrived an hour late.

We then joked about the perpetual excuse that he was doing some religious event [a prayer breakfast, speaking at a church luncheon, or leaving early for a "church retreat"], as though everyone should understand that his schedule involved in these religious matters should take priority over the schedule of the court or the convenience of the other side.

Typically, Family Law is a "hurry up and wait" kind of litigation practice. The calendar may be set at 9 a.m. or 1:30 p.m., but you may arrive finding 20 other cases on calendar, many of which will be argued in an order determined by the whim of the judge. Some judges routinely call matters where there are lawyers involved first. This frees the lawyers to go to another courtroom to argue another case, and historically makes the process move more quickly: Once you have both lawyers in the same place, it is easier to get them done so that they can go off and deal with other matters, in front of other judges who may be waiting for them.

A few judges put the lawyers down the list, either to avoid the complaint that they show favoritism to cases with lawyers, or because they are concerned that the non-represented litigants will learn something from the lawyers' arguments and make their cases more difficult.

Lawyers quickly learn that arriving on time does not necessarily get them out quickly, and judges learn that lawyers are not always there because they are checking into some other courtroom or arguing a case elsewhere. The reality is always a mix, with some lawyers taking advantage of the fact that they won't be missed since the judge has plenty to do, and they routinely make no effort to show up on time. Occasionally you will see a litigant wandering around looking for his or her lawyer, or be approached asking if they should be doing something because their lawyer isn't there.

The longer we practice, the less enamored we become of the courtroom process, and the less we accept without complaint waiting for hours for a 20-minute hearing that really does not do the issues justice, but is all that we can squeeze out of the courts unless we are willing to wait a few months for a hearing.

Well here's another complaint about non-lawyers handling your divorce, from our local newspaper, the North County Times

Allegedly the drunk entrepreneur operating a "divorce assistance office" [or as I call them "practicing law without a license"] was drunk and pointed a .357 at two customers.

Maybe this is the way to keep the costs and heartache down: "Settle now, or else"; or how about "Focus on me and your own problems won't seem so great." Well, they do have a website and claim to have thousands of satisfied customer for divorce or bankruptcy, although they don't claim to have any license or training. The "founder," one Dennis Jester, puts an "MA" after his name. That implies he has a Master of Arts degree: Maybe in Art History, or Hotel Management - doesn't say!

I hope he qualifies for a court appointed lawyer and doesn't try to represent himself. :)

The last couple of months in my practice have seen a flurry of frivolous motions to set aside or modify existing judgments, based solely on one party's desire for a different result than they had originally agreed to. Maybe it's the economy driving litigants to re-divide assets, or attorneys who need the work, but it seems to be an epidemic in my office - often where one party has been denied relief by the judge, that person keeps coming back with a different strategy.

The basic rule of law is that a judgment is final, and can only be set aside or modified for specific reasons, such as fraud, mistake, an undivided asset, or failure to serve an appropriate declaration disclosing assets. The policy of the law is that judgments should be a final resolution, not an invitation to further litigation.

Let's say, for example, that boyfriend gives girlfriend an engagement ring - they get married - they stay married for 10 years - they get divorced - in their judgment the wife is awarded all her jewelry. A few years later, the husband decides he wants his ring back. Should he get it? What did wife give up to get her jewelry? Maybe nothing, maybe a lot, but the parties negotiated an agreement.

How many times do we litigate the value of the wife's jewelry, or whether it is community or separate property? How many years do we allow the husband to wait before he changes his mind, and files a motion to divide the ring?

Or how about a case we see often: The house is awarded to husband, and he pays wife an equalization payment for one-half the equity. In this market, he may not be able to refinance the property, or it may be upside down and can't be sold or refinanced, but he intends to stay there so he buys her out. Because of the conditions of the market [or just bad lawyering], no one put anything in the marital settlement agreement about refinancing the property to take wife's name off the mortgage. Wife got her bargain, and husband got his - how many years later can wife come back and sue, claiming she should have gotten an order that her ex-husband should be required to refinance the property to take her name off or, if he can't do that, he must sell the house? What if the house had equity when they got a divorce, but now it is upside down - can the court order him to sell the house at a loss?

It is easy to come up with these hypotheticals because we and our friends see such motions filed all the time. To curb these frivolous motions, the legislature has seen fit to set limitation periods for the filing of such motions, depending on the nature of the grievance. For fraud, the longest periods generally, the right to sue usually starts at the time you knew about the fraud, or should have known about it - in other words, if you had all the documents all along, but didn't look at them, maybe you should have known about the "alleged fraud" and the period might run from the date of the judgment rather from a date years later when you bothered to look.

The point of this post is to point out a flaw in the system, allowing people to sue when there is absolutely no merit to their position, with no consequences. Yes, courts have the power to order sanctions for frivolous motions, judges just don't tend to want to upset anyone by actually ordering sanctions. Who is more likely to complain? The party who is sanctioned, or the one who doesn't get a sanction award - I guaranty you it is the former - judges tend to take the easier path, sometimes assuming that people really aren't mean spirited, even when they clearly are.

I recently heard a news story from KNX Radio in Los Angeles that there is a petition drive to put an initiative on the California ballot to ban all divorces. The expressed reason is that divorce is a sin.

The petition drive may, or may not, be a joke. I'll leave it up to you to decide whether to sign the petition when it comes to a shopping center near you. I could always give up family law and start practicing criminal law again - without divorce, violence may be the only way out if your spouse doesn't have the common curtesy to die of natural causes - that might spike the crime business. :)

Those of use who practiced law when divorce required proof of fault remember that divorces still happened, but they were even more messy than they are today. It will be fun to watch the debate, however.

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.

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.

There are a couple of lawyers I can't stand, especially this week. Most clients actually like their lawyer, it's "lawyers" as a concept they hate.

The difference? Those who hire lawyers are generally seeking someone to help or protect them. Lawyers in general, however, are often criticized for dirty tricks, making life expensive, or pursuing frivolous cases. Then there's the lawyer who sues at the drop of a hat to prove he has muscle, or compel a result or settlement he or she couldn't otherwise get - forcing someone to honor an expired warranty or take back a product they don't like. We are all happy that hospitals count the sponges before they sew us up, but don't think to thank lawyers for that.

When a lawyer's action is viewed as without merit, it damages the relationship of all of us. Most lawyers I know are sensitive to this, and don't throw around their muscle - they try to work it our, or suck it up, without threats.

Last week I won a motion to dismiss a case against a client. The case was without any merit whatsoever. I spent a large amount of time, money, thought, and energy to this case, trying to bring it to a easy end - at that, it took almost a year to get rid of the case. My client loves me, and hates lawyers in general, as a result. I'm not so happy with the other lawyer either - he's mad at me for calling him disreputable.

Continue reading "Hate a Lawyer Week: Abuse of Power and Process..." »

As I've written here before, I have several word searches enabled through Google to keep me up to date on legal issues, primarily divorce, family law, and the geographical areas where I practice. Generally, I want any information relating to my area of practice and the two towns where I have offices: Rancho Santa Fe and Escondido.

When I don't recognize some alert Google sends me, I click on the link and go to the web page to which it refers. Some of these alerts merely send me to someone else's blog, which I read to see if it contains anything related to my practice. Sometimes, the blog is virtually unintelligible, for no particular reason. Today, I found the following "post":

"This is an warning of a WordPress page, you could modify this to place aggregation
most yourself or your place so readers undergo where you are reaching from. You
crapper create as some pages same this digit or sub-pages as you same and control
every of your noesis exclusive of WordPress."

WordPress is a site which will host your blog for you. Now I get a lot of these - they sound as though maybe the original was written in English, translated by a computer to Swahili, then converted to Japanese, then a computer translated the result back to English.

If this is "The Information Age," why do I have trouble finding the information part of it, hidden among the crap. Sometimes it's like looking for the needle in the haystack, not knowing for sure that there is a needle in there.

Doctor Batista didn't get compensated for the kidney he donated to his wife during the happier days of their marriage: See the disappointment on his face, and read the whole story HERE.

Who cares? I do: It means some judge got it right - always like to see that.

I wonder how much the parties spent over this dumb issue. Do I smell an appeal in the air?

Continue reading "Escondido Divorce Lawyer Back in Operation after Near Disaster...." »

Somehow, I stumbled across this article about people fighting over custody of their dogs in divorce cases.  Written in 2006, it discusses appellate court decisions from across the country on the subject, and the author's opinion of changing standards.  I know of no reported California cases on the subject.

Historically, dogs were personal property.  As I recall, there used to be California cases saying that cats weren't property, because no one could actually own a cat, but for this purpose I'm not going to research the subject since it's not intended as a treatise on the law.  [As i recall, these cat cases dealt with issues such as whether a neighbor could steal your cat or dog, or be responsible for injuring one.]

When lawyers in North County [San Diego], where I practice, talk about old time practitioners, they often tell about a major trial over ownership of a parrot some decades ago.  It involved two very litigious attorneys who have since probably joined the bird in the hereafter.  [One billed himself as "The Prince of Darkness."]

We all laugh at the absurdity of people spending 10's of thousands of dollars over custody of a pet - now, I appreciate their attachments to an animal, but essentially they are gambling that the judge will see it their way.  It's one thing to fight over a child and how many hours of time share might swing one way or the other depending on how the judge sees things, but with rare exception the dog is going to one or the other [please don't get me started on judges who try to set visitation rights for pets].

In a website that attacks judges and lawyers in San Diego [that will go unnamed], there are tales about courtroom fights in our county over dogs and cats, including a lengthy trial over Fifi - one-half of the 3-day trial was allegedly devoted to the animal.  Now I understand an attachment to pets, but the Wife's fees ran about $150,000.  The website and that article is critical of lawyers charging outrageous fees over such issues.  I won't list the website, as it's largely run by a disgruntled litigant, who is occasionally right, but often wrong - he [or she] is anonymous, from Beverly Hills.

That site portrays the fights as a way for lawyers to gain fees at the expense of their clients - now that happens a lot.  But, the clients allow it to happen by making the issue over which they are fighting more important than their financial and emotional futures.  In our parrot case, the lawyers were just argumentative and overly competitive - this was in the day before divorce cases often ran to days or weeks, so the arguments and testimony took only a few hours.  Our lawyers weren't fighting to gain a few bucks, but over principle and their client's desires - the cost wasn't a major factor in those days, but winning was.  I wish I could say the same today. 

Over the decades I have practiced, I have seen many people fight to the death over absurd issues, spending endless dollars on issues they can't win or as to which there is going to be no winner. 

Fighting over a child has a certain biological imperative about it - you can't go to a kid show and pick up another kid bred for the same look and temperament.  But you can probably find a dog that gives you as much love and affection as the one you give away in the divorce - especially if you have $150,000 to spend since you aren't buying your lawyer a new Corvette or a few dozen St. John suits.

Friday, some friends brought home a playful, loving chocolate Labradoodle puppy to replace the Golden Retriever they had lost a few months ago to illness.  It is amazing how, in one day, the new member of the family has taken over as the focus of their lives.  And, they have $149,000 left to spend on something worthwhile.  It's not Fifi, but they don't seem to notice as they never knew Fifi.

Sometimes cases just need to be decided on the flip of a coin, and the parties move on.

I'm about to head our for my 4th settlement conference this week [yes, I'm tired].  That means I had to have 4 settlement briefs out the door last week.  Most Family Law cases settle in San Diego, because we strongly bias the process in favor of resolving differences.  And, as I've written below, no one ever knows who is right.

However, here's a mess that is destined to remain in the papers for a long time, reported in the San Diego Union.  It's about a San Diego Padres' outfielder.  Now, if your life looks like this, you need more than a divorce lawyer - I'm not laying any blame, but how do you get yourself in these situations over and over again if you're paying attention?  There are many people who make false domestic violence allegations, but usually there isn't security camera footage or independent witnesses watching - I'm just saying....

As a psychologist friend of mine once told me: 

I got a call from a patient - he told me his first divorce had cost him $250K, his second cost $500K, and if he didn't get out of his current marriage quickly it was going to cost him at least $1,000,000 [this was about 20 years ago when that was real money].  I told him it would be cheaper for him to fix his problems than to divide up his assets over and over again every few years.

I never asked if the patient [1] took the advice, or [2] benefitted from it; the odds are that the answer to one of the questions is "NO!". Some people just can't learn from their own life experience, let alone the experiences of others.  Either the guy in the story has a problem, or the women in his life have a problem - probably both, but not equally offensive.