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August 5, 2015

Lawyer's Advertising - What You Are Reading....

I had a trial last year against an attorney I consider to be unethical. He's bad enough I no longer will speak to him, as I believe there should be consequences to his type of conduct. The old practice of shunning has, unfortunately, become underutilized. [As usual, to disquise the people about whom I write as though the person were male, although the persons described may be male or female]

After having had an opportunity to review a Yelp rating for a company hired by my 99 year old father - a company with a horrible ranking. Yelp in crowd sourced, so I tend to rely on their reviews, and you can check on all the other reviews supplied by anyone commenting. With the company my dad called, all the positive ratings were from people who only submitted 1 or 2 reviews - they were outweighed by dozens of very negative review. [My sister has a friend whose daughter rates fake reviews for a living, so be careful.]

Years ago a service called AVVO.COM set up a website to rate lawyers - a well-financed start up. I have 4 reviews, 3 great and 1 bad. The bad one is from a mediation client who is angry that I identified an asset that he hadn't disclosed to his wife or in any of the forms he filled out for me, so he had to divide it with his spouse. The complaints were bizarre, but I can live with it - he complained that I had the parties reach their own agreement [excuse me, but that is what mediation for]. He complained that I did not disclose that I was not competent to divide his pension [the undisclosed asset]; I am competent to do so, but it is not cost effective for me to do that work, so I referred the parties out - almost all of my peers do the same in virtually every case going through their doors.

Oh well, that's the joy of the Web's anonymity - the reviews could be written my a 9 year old cocker spaniel for all you know.

The lawyer I looked up on Avvo had dozens of reviews, almost all extremely positive, and some using unusual, repetitive phrases. There were several that said "The best lawyer in town," as though any client would know of other family law lawyers, or even enough to make that statement. And, what "town" are they all referring to? Oceanside? Or some other small city in our large county with many neighboring communities. Sounds like someone is writing reviews and lacks imagination.

Then I noticed that the lawyer's picture has a bold square in contrasting color that says "PRO." That surprised me, so I looked further. It seems that if you pay AVVO, they will put that legend on your photo, so you think this person must have special skills, so he's a PRO. AND they then put your two most favorable reviews at the top of the list. There are only 2 reviews on the page with the lawyer's picture, so one would have to click on a link to go to another page to find negative reviews. Under lawyer endorsements, the two that appear on his page are his spouse [a lawyer, listed as a co-worker], and an employee - no bias there.

I can understand that Avvo.Com was created to generate revenue from advertisements, but spare us. It's like looking for reviews on a product and finding a website that seems written by a manufacturer of one or two products - who else would buy a domain name like "BandSawReviews.Com"? There is such a site, but in finding a band saw to use in my retirement years, it was of no help whatsoever.

August 3, 2015

Lawyers Misleading Clients - Trying to Predict Outcomes...

As part of my concern about lawyers' advertising, and misrepresenting themselves to clients, I recall an interesting interview with a prospective client a number of years ago.

A client [name and gender sanitized] came to see me, referred from another lawyer [name and gender sanitized]. The spouse had owned a house prior to the marriage and had kept it in his name. Because of pay downs on the loans secured by the property, the community was entitled to some reimbursement. Basically, the pay down of principal [and a few other things] is added back to the community property to be divided, and by a series of formulas known as Moore/Marsden an interest in appreciation is also divided. The rules come generally from two old cases involving the marriages of the Moores, and the Marsdens - for shorthand, we refer to the rules by the names of the cases from which they were derived.

I asked the person a series of questions trying to quantify what her interest might be: How much did your spouse pay for it? What was owed on it when you got married? What is the balance today? What do you think it's worth? And a couple of more.

I then did some quick math and told her my best guess if all the answers were accurate, she would receive something between $30-40,000 in reimbursement for that asset, from an estimated equity of about $300,000.

Her response was "That's not what the other lawyer told me." I hadn't known she was shopping.

I then asked who the other lawyer was: Someone I view as very competent and experienced. So I asked what the lawyer told her about the house. She responded "Well, she said she couldn't tell me what I would get, but that it would be less than $150,000," which would have been half the equity.

I responded "Isn't $30-40,000 less than half?" She looked at me like she didn't understand the question. So I told her that I had tried to put real numbers on her situation so that she could have some degree of predictability. Yes, the other lawyer could easily tell her she wouldn't get half the house, since it remained the husband's separate property, subject to reimbursements - it wasn't a lie, but the answer wasn't really helpful to the client.

Of course I couldn't tell her what she would get, as we were using estimates all along, with no documents to support the discussion. Maybe it had been an interest only loan, and she was just guessing at the amounts, or maybe the loan had been paid down with a separate property inheritance. These things are never known at this stage, but I knew she wasn't going to walk away with a large bundle of money from the house.

So, of course, the prospective client went back and hired the first lawyer, as she made her feel more positive about what she would get.

Can't argue with that logic, but the client wasn't prepared for the ultimate outcome.

August 1, 2015

Lawyers' Ads, and Reality....

I had a conversation this week with a young lawyer who has been an associate in a small law firm for 2 years. The lawyer is looking for another job that has better long term prospects. I will call the lawyer Bill, which is not the real name, and no inference should be drawn from using the male pronoun as to whether Bill was male or female.

When Bill told me the firms with which he had interviewed, I knew them all well. He said the biggest surprise of the process was the posturing of each firm, and how it represented itself to new prospects. Little they said about themselves matched what he had seen of them and their work.

Much the same happens when you read a lawyer's advertisements, especially on the web. I have regularly complained about lawyers' advertising, as it leads clients to pay more than the should, get worse service, and be more unhappy with the process. Lawyers were better when they got their business by hard work and referrals from other lawyers and past clients.

I address these issues again as this was my last week as a litigator, except to close up some loose ends on a couple of a cases that are almost over.

As I look back on my career, one thing clients cannot legitimately say about me is that I mislead them about the law or the facts of their case in order to et their business. Some client's go away and hire someone who makes them feel more positive about their situation - but getting a divorce is rarely going to have favorable results for either party, and the prospective client should be prepared from the beginning.

In my next blog, I will write about a gimmick for getting business most of us never considered.

November 20, 2011

Training Lawyers and a Lack of Legal Training...

Several years ago, a New York Times article discussed the lack of legal training designed to help a lawyer practice law, and changes coming in firms and law schools that recognize the problems this lack of training creates.

Contrary to public opinion, law school doesn't prepare a lawyer to practice law - graduating and passing the bar exam merely gives you the opportunity to practice. The system assumes some form of mentoring as the young lawyer goes from knowing nothing to bare competence - from there, skills should improve over the years as the lawyer gains experience, largely through trial and error, often making mistakes in smaller cases. As you gained skills and experience, people would h

As a beginner under the old system, the young lawyer had one advantage: Lots of free time. He or she could research any issue very thoroughly, where the older, experienced lawyer with a busy practice often relied on memory of statutes or appellate court decisions he or she had read over the years, which may no longer be fresh in his or her mind.

Continue reading "Training Lawyers and a Lack of Legal Training..." »

March 17, 2011

More Divorce Lawyer's Press Releases...

Yet another press release crossed my computer desktop from a lawfirm that handles divorce cases in San Diego County, braggin about the firm having shown up to do its job. Apparently, if they actually get their clients what they are entitle to receive, they consider it a big deal in their office. :)

In the press release, the lawyers are bragging that one of their own managed to get their client a 50/50 division of a pension. I think that is what is supposed to happen, although the other side doesn't always cooperate. It is also possible they didn't tell all the facts, and there may be a real reason this was a victory. [In fairness, it appears the other side had already collected some of the monthly benefits, and the court ordered half of those paid to the client - but that is what is supposed to happen.]

They go on to brag that the court had the other side pay a portion of their client's fees. That's pretty typical if there is a large disparity in earnings or assets between the two parties, or even an uncooperative litigant on the other side, but hardly a stunning victory. Now, if the judge had ordered 100% of their fees I'd praise them for that, since it is a rarity, but I'd hardly brag about getting "a portion" of my client's fees paid. Ok, maybe if my client's fees were $10,000 and the other side ordered to pay $9,000 I would consider that a job well done, but if that were the case I wouldn't be bragging that I'd gotten "a portion" of the $10,000.

Does anyone really pay attention to this stuff, or is it just Internet junk we could all do without?

February 5, 2011

Divorce Lawyer Bragging Rights? Pulling the Wool....

The economy is lousy, so I expect a little puffing by my competitors to get a bigger share of business. But sometimes the claims are really silly.

I have a permanent Google alert set to send me any news about family law in San Diego, so I get a lot of weird posts from blog sites, press releases, and other efforts by lawyers trying to get noticed: I.e., to move up their Google ratings. The more their names and and web addresses appear on the web, the higher they rate, on the mistaken assumption that a lot of people are pointing to them.

Sometimes, the stories or posts read as though they had been written by a third grader who wasn't a very good student - pure gibberish, incomplete sentences, and typos in almost every sentence. [yes, I know, I make a few]

Last week, a lawyer who runs a mill and isn't a certified specialist, issued a press release bragging about the great skill of one of his employees. The young lawyer had "managed" to increase a father's custody time share from 35% to 50%. That is almost a 50% increase, but hardly one that requires great skill in most cases.

Any lawyer who has a significant volume of cases has results like this all the time, and most of the time it has nothing to do with his or her skill - usually you get such a result when Family Court Services recommends and increase, but sometimes it's not much more than a father who decides he is able to spend more time with his children, or a mother who goes to work full-time and can't care for the children all day.

It reminds me of an older post commenting on a lawyer whose website brags he is the recipient of a "coveted award." That award, in reality, used to be given out by a retired judge at our family law bi-annual dinners to point out lawyers who show up late regularly, and always have an excuse for not quite measuring up - someone we like, but not too reliable. You need to be careful with what you read - it's not always what it seems.

May 24, 2010

San Diego Judge Elections - San Diego Union Endorsements....

Many election years, I get questions from family and friends asking for whom they should vote in a judicial election. This year, the stakes are higher and there are far more elections than usual. The San Diego Union published its endorsements today.

As usual, I recommend family and friends vote for the incumbents. This year is no different from usual, but the stakes this year are more important than usual. This year, a group has organized to run against a number of very good judges. Why? Because they want the law to be different from what it is, and view election to the bench as their way of changing the law. Talk about judicial activism! They have not chosen to oppose bad judges, just anyone in office, apparently selected at random. The Union has endorsed all but one sitting judge, and made no choice for the remaining seat. I can't disagree.

One of the judges running is not well respected: Not by lawyers, and not even by many judges. That doesn't change my position, and the Union has elected not to take a position in that race.

Lawyers who run against sitting judges, in the overwhelming number of cases, aren't the best of their profession. Often, not even close. I do not know well any of the judges still in the race - two of them had long stints in Divorce Court, where I saw them do their jobs well. I see no reason they should not be reelected, and the lawyers who have appeared in front of them far more than I speak highly of each.

A third former Family Law judge, Harry Powacek of Vista, was challenged by a lawyer who didn't meet the legal standards for the office and was kicked off the ballot. Although he does not have to run, Judge Powacek had legal expenses to deal with the matter in court. What had he done wrong? Nothing. He was just an incumbent. I appeared in front of him many hundreds of times, and he always tried very hard to do a good job.

Many such challenges come from a lawyer who didn't get the result he wanted in his own divorce. Many, just from lawyers who want the publicity because it may be good for business.

As I look back over the last 40 years of such nonsense, very few poor judges were opposed for election, and few great lawyers were challenging them for the position. Those few judges who lost reelection did so largely because on some horrible publicity: One was caught tearing down his opponent's campaign signs. One was accused of putting a "little old lady" in jail on Christmas Eve on a minor traffic matter. In the first case, the lawyer one and turned out to be a good judge. In the second, the replacement turned out to be a disaster. In each case, the judge was running against bad publicity for his personal conduct, or perceived conduct. These very rare occasions, where a judge screwed up and lost an election, have given comfort to potential challengers.

A few years back, a lousy judge was opposed by a mediocre lawyer - no one wanted the judge around, but the choice wasn't clear - the judge had not had a lot of bad publicity, so he won handily. In one election, a bad judge resigned when challenged, but that was a rarity.

The problem with the process: Judges are afraid to take legal positions out of fear they won't be re-elected when they sit every 6 years. The fear isn't great, since they have almost no chance of losing - but the cost of running, financial and emotional, is high. 25 years ago, a judge made a hard call and dismissed a few dozen drunk driving cases because the DA's Office screwed up in failing to charge the cases properly - he was right on the law and felt he had no choice. One of my friends decided to run against him because he sensed vulnerability - I didn't know the judge, but opposed my friend, who then withdrew when many others came to the judge's defense.

The process is broken, especially in this political climate. It will be further damaged by voting out very competent judges. That only serves to make those who remain more scared of losing their positions, and more likely to make safe choices when hard choices are called for. Even where the Union has elected not to endorse a candidate, I recommend a vote for the incumbent - it will help stop the nonsense of challenges where there is no need for change.

March 26, 2010

Getting Your "Divorce in a Day": No Way....

There is one local lawyer in San Diego County who specializes in bashing the legal profession, and bragging about the ability to handle a complete divorce in a day: Mediating a settlement, gathering the financial records, drafting all the documents, having an agreement signed, and the case ready for filing with the court. Sounds attractive - especially if you are rushing to get an agreement signed.

That attorney brags of a 100% success record. Unfortunately, the claims are not justified by experience. While that attorney may be able to claim to have talked the parties into a settlement and signed most of the documents in that day, not counted in those bragging rights are the many cases that have later been set aside by a judge or by stipulation because they were unfair, or entered into without sufficient understanding of the law or facts. The same person instills fear in potential clients by telling them that letting some other lawyer near their case will end up costing them tens of thousands of dollars, making outrageous claims of the cost of the average divorce.

And the saddest part is that the work is of low quality, and often could have been handled more competently at lower cost. Two mature, reasonable people, can mediate with a competent mediator inexpensively, and do it right: They don't need to pretend they can or should wrap it all up in a few hours. Typically in my practice, we meet 2 or 3 times over several months; by the time we are done, each knows his or her rights and feels comfortable with the agreement. And we strongly suggest they at least consult with an attorney before signing.

As a concept, it sounds nice that two reasonable people who know what they are doing can go to an attorney, polish the rough edges off their agreement, and have all the paperwork completed quickly, efficiently, and cheaply. Unfortunately, that isn't what happens in practice when they try to do it in a day. One of the things I complain about in this blog is people with insufficient education and training performing mediation in the guise of protecting people from the legal profession and their own inability to reach agreements on their own.

Continue reading "Getting Your "Divorce in a Day": No Way...." »

November 29, 2009

Divorce Mediation, Costs, Lack of Training & Scare Tactics....

Today, courtesy of Google, I received a link to a webpage titled something like "Free Divorce Help in San Diego", followed by an advertisement looking like an article touting a private mediator with a law degree, but apparently someone who never passed the bar examine to become a lawyer. Aside from the irony of starting by offering free help, then charging, the page contained a lot of misinformation.

As with much mediator advertising, it was peppered with misstatements about the cost of the legal process. It reported that lawyers charge "at least $500 per hour" and many charge non-refundable retainers as much as $7500, and "total fees of $100,000 are not unheard of for a divorce."

Although legal services are expensive, let's set the record straight. In San Diego, the number of competent lawyers consistently charging $500 or more per hour is probably well under a dozen. Yes, a divorce can cost $100,000 or more, but that's because the parties are unreasonable and lousy candidates for mediation in the first place - and few lawyers have done cases that have gotten that expensive.

Retainers of $7500? Again a small number of lawyers, or those where the attorney knows going in that there is going to be a large amount of work to do, or there are other issues [a lot of property to keep track of, custody disputes, prior lawyers, a particularly obnoxious attorney on the other side] - and non-refundable retainers are generally prohibited in California, so you are only going to pay for the actual work needed.

And, this person bragged that most cases are mediated for less that $5,000: Now that's still a fine fee to charge if you are a lawyer, and in my experience far more than having a competent family law lawyer mediate your divorce and process it through the courts, as long as the people are reasonable and mature. Yes, most of us charge on an hourly basis for the work, so there is no limit, but you can have it done competently for less, in most cases.

One regular warning I make here is that you need to examine the credentials of the mediator: In my mind, it is more than taking a short class in how to help people reach agreements, and knowing some basics about the law. You want accurate information about your legal rights and responsibilities and knowing the mediator's thought processes have been honed by litigation, where biases and assumptions are tested daily. A J.D. degree means the person went to law school - it does not mean or imply the person knows the law, or ever competently practiced. Masters and Bachelor degrees are meaningless in choosing a mediator.

There is no substitute for education and experience as a family law specialist with years of litigation experience. Scare tactics to draw you in should be viewed with suspicion. If you can hire a true expert for the same price, why go to someone with a good sales pitch that lures you in with a promise of free or cheap resolution of your divorce? Someone who badmouths competitors on the basis that they are educated, knowledgeable, and experienced. There are a few, money hungry lawyers, whom you can't trust, but the vast majority know what they are doing and went into the legal profession because they wanted to be able to help people.

October 31, 2009

Amateurs Doing Mediation in Divorce Cases in California:

On a law practice website I share with a friend, we have an article about non-lawyers and inexperienced lawyers pretending they can mediate a divorce settlement - sure, they MIGHT be able to help the parties achieve a fair and cheap resolution of their issues, but if that happens it is by accident.

An essential part of the process is that each side knows his or her rights. These cases aren't about two businesspersons or two neighbors fighting over a contract or boundary dispute, it's about fundamental fairness between two people who owe each other about the highest duty known to the law: That, coupled with the ability of each to continue to function financially, to provide housing and food on their tables, plus some semblance of a normal standard of living. Half the process is ensuring that each party knows his or her rights, and the other half is getting them to be reasonable in assessing the alternatives.

Within the last month, I've had two prospective clients come see me who have been in the mediation process with unqualified mediators. In one case, two "housewives" with no semblance of training in law or mediation, have a website - they are giving the married partners their untrained version of family law, performing guideline calculations with no evidence they know what judges do with various financial issues, and when they are done they are preparing a marital settlement agreement, which is the unlawful practice of law.

In the other case, the parties have been before a trained therapist for more than 2 years, and have not a single written agreement to show for it. Has it lasted so long because they are progressing to a meaningful conclusion? No evidence of that, and the parties don't seem to be getting along well, either. Do they know anything about the law? Not much from what I could tell.

If your goal is to gain an advantage because you know more about your rights than your spouse, you may perceive it is to your advantage to drag him or her to an untrained person to mediate the divorce - on the other hand, you may be in for an expensive litigation battle when the other decides to set aside your divorce decree and require you to start over, or in anger abandons the process and proceeds to litigation.

Your choice of mediator should include only those with a substantial background in family law, and mediation training.

June 15, 2009

Rancho Santa Fe, Divorce, and Google: Too Much Information....

Yesterday, I was responding to an e-mail from a friend I lost touch with many decades ago - she had written for guidance with respect to a couple of attorneys to whom she had been referred for a civil matter in San Diego, although she now lives out of state.  In the process of catching up, I was telling her my typical Sunday a.m. was to watch hours of the morning news shows, and trying to devour the NY Times Sunday edition.

Her response was that she didn't watch the shows because they gave her too much depressing information.  There really is almost too much information available to us because of the explosion of media, including the Internet, and we must question whether we really need or even want it all.

I have an office in Rancho Santa Fe, practice family law [including divorce], and serve on a public advisory body for planning and zoning centered around that community.  So, I have a daily Google search to send me any information relating to RSF and Divorce, in particular.  Google allows us to set up such searches to run at regular intervals [even hourly], so we don't miss anything.  I suppose if I were a quilter in Carlsbad, I could find out any news stories or blogs relating to "Carlsbad and quilts" so that I might learn of a new quilting store or gallery in the neighborhood.

It's amazing how many stories hit each day with my search.  The cryptic blurb I get from Google is to entice me to link to the underlying story.  What I normally receive is...

Continue reading "Rancho Santa Fe, Divorce, and Google: Too Much Information...." »

February 13, 2009

Blackwater, XE, and Branding..

It was announced that Blackwater, the American Mercenary Company paying $80K per soldier to provide military services in Iraq, is changing it's branding to "XE." Pronounced "Zeee", or something like that.  I guess Blackwater has that waterboarding/war-crime thing attached to it, and wants to appeal to a younger group now that Cheney is gone.  Like maybe the new guys won't notice we're the same old guys.

I guess that's what you do when you don't want people to remember what you did.  Change your name, pick up a few new friends, and keep doing what you're doing.

Sort of like Remington Steele; remember the semi-comedic detective series with Pierce Brosnan from about 25 years ago?  Hire a good looking front man for your agency so people will hire you, then have the brains doing the work in the background.  

You don't really want people knowing who is being paid by the government for doing its bidding, earning 100's of millions of dollars for providing soldiers of fortune.  The only difference is that no one was dying in RS, and we weren't creating enemies of the state to haunt us for decades.

Sorry for the rant, but it seems consistent with the false advertising thing I've been writing about.  Wouldn't it be nice if the new name was "Mercenaries by the Month," or something equally descriptive, so we'd know to whom we are giving our monies?


February 11, 2009

Lawyer Ads, Freakonomics, and Unequal Information....

A friend sent me an e-mail in response to a post about misleading ads by lawyers.  Along with it was a link to a San Diego lawyer who brags on his website that he's the recipient of "a prestigious award."  I know the award, and there is no prestige associated with it - in fact, it's like a movie getting "four tomatoes;" you probably don't want to go see it, and you don't see it in the movie posters.

One premise of the best seller Freakonomics the disparity of information between experts and their customers makes it impossible for the latter to determine how to do the expert's job, how to know if the expert is making things up, or whether the expert truly has any expertise.  As a result, the expert gets paid a lot of money because he knows the secret information.  There is a huge information gap, resulting in the expert getting paid a lot for access.

This is changing rapidly as the world turns toward the Internet, where there is actual information you can use if you dig deeply enough, available free to everyone.  While I can't recommend that most clients use the Internet to do their divorces or other legal work, they can use it as a way of confirming what they are told or providing a list of questions to ask their attorney. 

There is still no substitute for the knowledge of the lawyer about how court's work, what particular judges do, how certain opponents approach their cases, and the nuances of the law.  But there are many websites providing limited information on calculating guideline support [assuming you know what to input into the program], and case law is available from many sources.  You just need to be careful applying what you read, because the facts of your case may be different from those of your friend, or from the examples you find online.  And, there are wide variances from state to state, and even from county to county.

It is impossible in a blog to discuss where and when you should seek out a lawyer, but I can state from experience in representing lawyers and their spouses in divorce cases that even lawyers who practice in other fields don't understand family law when they read it.

Now, back to the ad.  The award is named after a California Code section, and is given periodically by a local association.  Sounds impressive, until you read the code section itself:

Continue reading "Lawyer Ads, Freakonomics, and Unequal Information...." »

February 7, 2009

Advertising and the "Rancho Santa Fe" Divorce...[or Del Mar, etc.]

Elsewhere, I've written about the "ambiguity" of advertising by lawyers, making themselves seem bigger than life, experts at everything, and the best there is.  This devolves from court decisions that lawyers should be able to advertise just like every other business.  It rarely has helped get information out to the public - often it is merely a way to generate business to be handled by inexperienced lawyers.

In a local newspaper last week in a community where I have an office, I found an ad for an attorney who bragged about how good he is at handling big asset divorces.  The community is filled with wealthy families, with multimillion dollar homes - the kind of market from which big divorces come.  The first thing I noticed was the name:  In 30 years of practicing family law, often in court daily, I'd never heard of the man.  Next, the fact that he "offices" in each of the 3 wealthiest neighborhoods [all within 10 miles of one another].

So I looked further to see who he was.  It was almost comical.  The "main office" was a house near the beach.  The office labeled in my community was actually 5 miles away, the address of a business attorney I don't know - I didn't check out the others, but assumed he has agreements to use a conference room wherever he can find a client.  

Then I assumed these are ways a lawyer from somewhere else in California who is moving here to retire might seek a few cases - but it surprised me that the lawyer specifically limited the practice to divorces.  Yet, he wasn't a certified specialist in family law.  So I looked further.  Where's the lawyer's real office:  A large city in the mid-West, according to what he lists with the State Bar of California. 

Continue reading "Advertising and the "Rancho Santa Fe" Divorce...[or Del Mar, etc.]" »