Divorce And Mediation Blog

When I interview a new client or prepare an existing client for a hearing or trial, I find they usually want assurance of what will happen when we get to court, or some guidance on what a judge would do at trial in evaluating whether or not to settle. Unfortunately, the majority of the issues in Family Law are left to "the sound discretion of the trial judge."

In fact, that is language that is found in a high percentage of appellate court decisions in family law cases precisely because there are many unique situations, and unique personalities - it is the philosophy of many appellate courts that the trial judge is in the best position to fashion a rule to guide the family's life. Unfortunately, this also increases the unpredictability of the process.

The more experience an attorney has in going to court, the more likely it is that he or she can predict the range of likely outcomes. The ability to make such predictions is dependent upon watching judges make these decisions over a long period of time, and in particular watching the judge assigned to your case make similar decisions in other cases. We often talk to our peers about their experience so we can better predict what a particular judge may rule in your case.

Predictability becomes more difficult as we have more judges assigned to the family law bench. In Vista court, we have five full-time family law judicial officers [judges and commissioners], and one part-time handling support issues. The downtown branch has eight [and three others doing support], and there are several in South Bay and East County.

The commissioners who do nothing but support cases in the Family Support Division of the Superior Court have less latitude since child support has specific guidelines the court's are required to follow most of the time, and spousal support is guided by informal guidelines - even there, however, the judge has wide discretion in determining income and applying various factors when entering data into a computer to calculate net incomes and support.

When you have a family law problem, the best thing you can do is discuss it with a Certified Family Law Specialist: Someone who has devoted his or her career to practice in this field, and who has a lot of courtroom experience. Even those who no longer go to court on a regular basis because they have chosen some form of alternate dispute resolution, had experienced a wide range of fact patterns and have grappled with the various rules that can be applied.

Because of the nature of the certification process, it is also required that they take more 15 hours of specific family law training each year to maintain their certification. The typical lawyer is only required to complete about 8 hours of education per year, and that can be in a broad range of subjects, including those that aren't substantive, such as law office management, bias, and substance abuse - specialists are required to take such classes to keep up their licenses, in addition to the 15 hours in family law. They truly are experts in predicting what judges will do in your case.

I your spouse isn't working to capacity, you can ask the court to attribute to him or her an earning capacity for support purposes. But, how do you do that?

A vocational evaluation can be conducted to show the court that a party has the ability to work and that jobs are available. The evaluation is a means of having an expert conduct a study to provide the court with information about the ability of one or both of the spouses to earn more than they claim.

In our present economy, there may be few jobs available, but that doesn't mean that a spouse can remain unemployed for a long period of time and still continue to collect full amounts of child and spousal support, or avoid paying, as though he or she were incapable of working. The evaluation process is essential to get expert opinion to the judge who must make a determination - you can't just tell the judge how much they can make, or even what they used to earn in earlier days - only an expert can provide such evidence.

Once a judge has information that the party has job skills, he or she may order that the person make job contacts, and report them on a form listing the name of the company, the manner of the contact, to whom the person spoke, the job for which they applied, and the outcome of the contact. We often see those who we think are not anxious to find work making the required five or ten job contacts a week simply by logging onto the Internet and forwarding a resume - some judges require personal contact.

Most vocational evaluators will testify that jobs are usually found through personal contact (including family and friends), and that the success rate in sending a resume without such contact is very low. At least one appellate court has observed that it is easy for a person to avoid working if he or she wants, so the judge is ultimately required to make a gut reaction to a set of facts to determine whether the litigant is affirmatively seeking employment.

In one of my cases years ago, the non-working spouse would report on the court form, that she was going to an industrial park, usually on Monday or Tuesday, then going door to door passing out resumes and picking up a business card from the receptionist. Every two weeks, she would then report back 20 job contacts, but it was painfully obvious that she was only looking for work one day a week.

We suspected that she was actually working somewhere the rest of the time, probably under the table. The judge looked at her qualifications (fluency in four languages), the master's degree she had from college, and assigned to her a relatively high-income level, and ordered child support accordingly and ended the husband's spousal support obligation. A good vocational evaluation is essential to that process.

In the present job market, it is relatively easy to claim that someone is not earning a living in his or her chosen field, for example a real estate broker. A judge has to decide whether or not to push that person to look for work in some other industry, or try to weather bad times because the person was previously successful and will probably be successful again when the market picks up. In the long-run, the decision to pursue one career move or the other may affect the persons long-term ability to pay increased child or spousal support.

These kinds of decisions are left to the sound discretion of the trial judge. Whichever side of the issue you are on, your position is best presented to the judge by a certified family law specialist; and vocational evaluations are essential.

If you can present evidence of a pattern in the manner of job contacts, or even show that you have followed up to determine that the contacts were actually made, you are more likely to be successful in that process. If you treat it casually, or assume that the judge will simply believe in your position, you are likely to be disappointed in the outcome.

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. :)

Betty Broderick was denied parole yesterday for the murder of her ex-husband and his new wife a few decades ago. I believe she is a crazy, angry, ex-wife with no sense of boundaries and no ability to acknowledge her own fault, and needs to stay in prison, probably forever.

Through 35 years of handling divorce litigants, I've never had a murder in any of my cases, and very few serious injuries by one spouse against the other no matter how many threats were made, how angry people were, or how disastrous the outcome of court proceedings.

When threats to kill have been made [to a spouse, new girlfriend, or relative], I'm generally comfortable in reassuring my client that the risk of actual harm is pretty minimal - people make threats in the heat of arguments, usually to get attention, and don't really carry them out in the vast majority of cases, especially in middle and upper class America where my clients reside. As long as they aren't blinded by drugs or alcohol, they always have the ability to understand that mayhem isn't a successful life strategy, let alone socially unacceptable. Then, to paraphrase Chris Rock, there's always that episode of CSI that makes them think they might not get away with it, so they do something less permanent.

Betty was an angry person. Her marriage failed. I have no doubt she contributed to its failure. Maybe it was as simple as choosing to marry someone who wasn't faithful or one likely to think that a stable marriage for his children was less important than an exciting new relationship. On the other hand, maybe the craziness she later exhibited was symptomatic of a person who wasn't too easy to live with, and may have been emotionally abusive in her own right; maybe anyone fun and pleasant to be with was a welcome change, and it wasn't just that she was younger and thinner.

When you speak to the other participants in her legal process, as have I, you hear a very different picture of Betty - she was loony during the divorce process - her inability to obey restraining orders was a clear indication of that [her having had multiple, competent lawyers, is always a concern as well].

I wasn't a friend or even an acquaintance of her ex-husband, and never met him; I have no opinion about his merits as a lawyer, father, or spouse, and frankly don't care. But I've seen cases with people like Betty, and it's not a pretty sight. You can't explain anything to them; you can't get them to behave; they blame everything on their spouses, their lawyers, minor's counsel, therapists, or the judges; and, they are the creators of their own demise.

They believe that everyone is against them, and don't understand their own role in the process - true paranoia. Usually it doesn't lead to violence. They usually just go from lawyer to lawyer to find someone to believe in them for a while, or they try to represent themselves until they antagonize the judge and everyone else in the process.

Maybe they run over the ex-spouse's mailbox every year on their anniversary, but rarely murder. They rant and rave and repeatedly tell their own versions of history, but the experience of the judicial officers, custody evaluators, and documentary evidence, generally show a different reality than they try to present as the case unfolds.

This isn't a woman who was beaten, controlled, and manipulated during a marriage, and felt she had no where to go - there's a certain sympathy for the woman in that situation who feels she has no alternative but to stop the abusive spouse's breathing. Even then, I'm not comfortable that they go into the general population when they establish the level of abuse - they had other remedies, their minds just didn't allow them to see them in most of those cases.

With Betty, we have someone who felt she had to get revenge for being left behind. I understand her anger, fear of the future, and sense of loss. I don't understand her reaction - with an abusive spouse, murder may be the only obvious remedy - Betty wasn't seeking a remedy for her situation, she wanted punishment.

She wanted to be cared for the rest of her life, and wanted to remain a socialite - in a sense, she now has both, all stemming from the death of her ex-husband - perhaps she got what she wanted, although without the freedom to mill among us. I think it's wise to keep her there, both for our safety and to serve as an example to others who may need her lesson to guide their behavior.

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.

Today's San Diego Union contains an article on the front page with a headline that "S. D. County home prices inch higher." While this is certainly welcome news, it hardly serves as notice of the end of falling prices and is not enough to make settling divorce cases easier.

The statistics cited in the article refer to median home prices in the county - for those non-math majors, that means that one-half of the houses sold are above, and one-half below that median number. The increase, if you can call it that, is .5%, year to year for October. That can easily be a statistical anomoly, and not reflect an actual increase in prices, although the article does reflect a 2% increase in the number of sales - of course that increase is from the extremely desperate days of October, 2008, just before the election, when it seemed our financial world was about to end, which is probably not a good guide post from which to measure the market.

What I notice in my family law practice is that houses at the very bottom of the market are selling as a few buyers think they can pick up a rental propery cheap [especially based on early 2005 prices].

In one case, we have two houses to value; one in the $300,000 range, and one nearer $700,000. Because of delays, we've had two appraisals of each house - the same appraiser says that the less expensive house has actually increase in value about 10% in the last year, while it is opinion that the higher priced house remains unchanged. With the median at $325,000 [according to the article], it may just be that the bottom end has firmed up as buyers think they are getting a bargain, while the number of foreclosures and repossessed houses continues to keep the overall market soft.

Those few friends who are looking at houses in the range above $700,000, are finding they can buy nearly new, custom built houses far below the cost of construction - one friend remarked that the top end is equivalent of being given a free lot, then a discounted bid on building - he's interested in moving, but is really picky because he finds so much from which to choose - he doesn't have to suffer noise problems or bad layouts, as there are other houses on the market.

Before taking a step into buying a new house, think carefully. We may not be at the bottom. And, remember, one factor in keeping the bottom firm is that interest rates on these sub-jumbo loans remain very low, and money is available to many buyers in that price range. That does not necessarily mean that people are trading up, only that houses at the bottom are becoming attractive to investors, while pricing remaining a gamble. If interest rates rise, prices will drop. As always, be sure you have the financial stability to keep the property you buy even if housing prices and rental values drop, and interest rates go up.

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.

There has been a change in the Settlement Conference process in the North County Branch of the San Diego Superior Court, in an effort to move cases along while dealing with a shortage of court rooms and volunteers to help settle cases. In Vista, all cases have been subject to a mandatory settlement conference for more than a decade, and the process very successfully resolved almost all of the cases without trial. As discussed below, that process has been falling apart.

Our settlement conferences at the court have been set on Thursdays, a day when the judges would set longer cases and trials to be heard.

The existing process had each of our 5 Family Law judges assign his or her cases to a Thursday calendar, in rotation among them - all of a judge's cases would be set for the same day, at 6 week intervals. The problem is that the first available date might have been 3 or 4 months out - if one lawyer was unavailable, the next available date for your judge's cases fell 5 weeks from that date and your first possible settlement conference would be 4 or 5 months away. Invariably, one of the lawyers would have a conflict with that date as well, and the 5th week after that put you 5 or 6 months out, and so forth. Occasionally, I lawyer didn't want the case moving closer to trial, and may have made up an unmovable conflict so that the date got set farther and farther out - and occasionally the judge would be on vacation and unavailable for the normal rotation.

Under the new process, to avoid such delays, each judge will set one case each Thursday morning and afternoon - for some judges, the problem is that there are many more cases being set for trial, so that judge's cases may be set many more months later than another judge simply because all the slots will be filled more quickly. The new process takes effect in January - we'll see if it works better than the existing system, or even better than no mechanical system to control the calendar.

Historically, the Vista Branch of the court has had many volunteers acting as pro tem [temporary] judges, assisting in settling cases. [We used to also sit as judges to help pick up the slack, but a lot of judges thought it would be better to have more judges appointed and more assigned to Family Law, than allow lawyers to volunteer their time to fill in.] That process brought out most Certified Family Law Specialists to volunteer our time - that came to a screeching halt when the California Supreme Court decided we needed regular education, fingerprinting, a background check, and a bunch of confidential information floating around the clerk's office as a condition for providing free services to the court and the public. Until then, the volunteers had to be picked for the panel by the judges, but that wasn't good enough [maybe other counties were more careless].

Many of us resented the fact that we had been acting as pro tem judges for 20 to 30 years, with virtually no objections or problems; more training in how to act like a judge [and the training is really boring, especially after the first time since it must be repeated every few years - 8 hours trapped in a room listening to a judge (who may know less about a courtroom, and certainly knows less about family law) tell us how to be polite and avoid conflicts of interest.

The result? The system has fallen apart - most of the best lawyers decided they could charge for our skills as "private judges", instead of having to volunteer at no pay, then be required to go to additional seminars. We usually charge less than our normal rates, and the lawyers who know us get to pick the right person to help settle our cases rather than taking pot luck at the court house, depending on who volunteer that day. You can imagine how successful an inexperienced lawyer is at persuading a long time specialist.

Essentially, as a private judge we are getting paid for serving as a mediator in cases where both sides have competent counsel, hopefully have legitimate disputes, and the issues are interesting. This is usually more rewarding for us, financially and intellectually, than going to the courthouse and dealing with two unprepared litigants who often just can't get their emotions under control and have no sense of appreciation for the volunteer's time - they don't care that we help them divide the towels and silverware that aren't worth the value of our time.

I used to volunteer regularly - I've been doing it more than 30 years. I am not currently on the panel, although I regularly volunteer to help lawyers settle issues when I am around the courthouse and they need a 3rd opinion [as do most specialists].

We are waiting to see if the new system helps at all.

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.

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.

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.

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.

In a recent court of appeals case, ENRIQUE M. v. ANGELINA V, a San Diego trial judge was affirmed after making a decision choosing which school the child would attend. The father contended that the choice proposed by mother substantially impacted his ability to parent the child, and failure to apply "strict scrutiny" to the choice deprived him of a fundamental right. The court selected the school proposed by mother, the school which many of the child's friends would be attending the following year, as being in the child's best interest.

In a 2000 case [Troxel], the US Supreme Court held that parents have fundamental rights subject to strict scrutiny, when weighed against the rights of grandparents who wanted to exercise visitation. Troxel held the order against the parents must be set aside or limited unless it serves a compelling purpose and is necessary to the accomplishment of that purpose.

In Enrique, our local court of appeal ruled that no such scrutiny is required in deciding between parents. In so doing, they held that the court was not required to make an order that treated the parents equally. Essentially, the best interest of the child controlled, not equality between the parents.

What does this mean in a particular case? No change, in my opinion. Judges have usually look at each custody or visitation case as unique, and try to decide what they think is in the best interest of the children. One parent will think the judge is biased or stupid, and the other thinks he or she is brilliant.