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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.

December 22, 2014

Family Law Lawyers' Vacation, Problems

As family law lawyers, we are used to emergencies - goes with the territory. Judges like to say that sorting out Christmas visitation is not an emergency, since it always comes at the same time every year.

Well, that doesn't stop clients. I got an email from a client on Friday that his ex-wife is disputing the contents of a custody order - admittedly, it wasn't well written [I wasn't in the case at the time] - I had drafted a revision to the order with some new agreements the parties reached in mediation, but the ex-wife won't sign. In so doing, I re-wrote the poorly drafted provision and no one complained about my language.

Well, now the ex- wants the agreement interpreted as she thinks her attorney should have written it. So, I call the attorney, and was passed off to her voice mail this morning, and it says that her office is closing at 5 p.m. today, the 22nd, and won't reopen until January 5th. In other words, they can't be reached to solve any problems.

Must be nice. The first I heard of this being done was 9 years ago when a friend closed for the week between Christmas and New Year's because he was completely re-decorating his office - carpet, wallpaper and paint, and it seemed a good thing to do since the place would be a mess anyway.

This seems to be becoming a practice for a lot of downtown attorneys, some of whom pay their staff hourly, rather than salaried, so they close when no one really wants to work anyway. I'm still here, however.

November 20, 2013

Paul Daniel Marks elected to the Family Law Bar Board of Directors

On Tuesday night, I was elected by a vote of my peers to the Board of Directors of the San Diego Family Law Bar Association.

This is a new organization formed last summer, and is the largest organization of family law lawyers in the county. For decades, the San Diego County Bar Association had a committee of its members who were certified family law specialists - close to 200 of us. I had served a full term on the Executive Committee of that group in the 1990's, and was later appointed to fill out the term of a lawyer who retired. In each case, I was filling a slot for a North County representative.

The specialists, through the Executive Committee, raised a great deal of money for the Bar, primarily by producing very successful seminars - a lot of specialists were only member of the county bar so they could be a member of that committee, and they paid a lot of dues.

There were always tensions between the parent organization and the Executive Committee. Last Summer, the Executive Committee and the County Bar decided to part company. The core idea of the new association was to take over the Executive Committee's role in speaking for the certified specialists and take over its own finances. A bolder part of the decision was to create a new family law bar association representing all lawyers who practice family law, not just the specialists, and the new group is well on its way.

The new organization is the successor to the old committee, the Board of Directors has taken over the role and position of the old Executive Committee, and the transition has largely been seamless. North County had one representative on the executive committee, and has one seat on the new Board of Directors - typically our North County Specialists Committee of about 40 members has chosen that person. This year that position came open again - my friend Paul Gavin was that person, and will be our representative to the Board.

I decided to run for one of the three "at large" positions to see if we could give north county greater representation, and, frankly, to see if I had the support of enough members to gain a seat. I didn't really hold out much hope, as only one north county lawyer has won an at large seat in as long as anyone can remember. With only 25% of the specialists practicing in North County, San Diego controls the votes.

Well, I won.

May 22, 2013

Same Sex Marriage, Cohabitation, Child Custody....

Here is a New York Times article that gives lawyers and judges one more thing to chew on in child custody cases.

A Texas court enforced an order prohibiting a same sex couple from living together in Texas with the children of one of them in the home. In Texas, they can't get married, so the court enforced a morality clause in a divorce agreement to keep them apart when the children were present. According to the story, such provisions are typical in that jurisdiction.

The last time I saw a judge in California make such an order in a case with two people of opposite gender living together has to have been 30 years ago. Occasionally there will be delays in allowing such arrangements for very young children, or when the separation is fresh, due to the impact on the children emotionally from seeing one parent moving on to a new relationship. But, in general, California judges do not consider this type of conduct to be very serious. We see few cases with same sex couples in this situation, but I doubt the rulings here will be any different, but it will be interesting to watch, no matter what side of the argument you are on.

Decades ago, I had a client move to Missouri with her children. Despite a court order from California to the contrary, she was able to get a judge in Missouri to prohibit visitation to the father because he was living here, in California, with his girlfriend. The consensus here was that the Missouri ruling was "quaint." That was the last time I had experience with such an order. Things are different here.

May 16, 2013

Collecting Delinquent Child Support, License Suspension....

Under a 2012 law, the Indiana Secretary of State suspended the licenses of two Indiana stockbrokers for failure to pay child support - one was from California, but he was licensed in Indiana. We tend to forget that this remedy is available for the very delinquent, but this case brings it back into our focus.

Through the Department of Child Support Services, such remedies have been available in California for many years,

Although DCSS requires that the recipient open a claim with that office, which has its own problems in pursuing support in many cases [including many months of delay and inadequate use of discovery to obtain information], DCSS has available to it several remedies such as this that are not available to private lawyers. We frequently have clients open a file at DCSS so that we can have the advantage of that remedy, while still representing our clients in conducting discovery to determine income and wealth, as well as doing other types of enforcement where a competent, private Certified Family Law Specialist can be more efficient and effective.

License suspension can included driver's licenses, licenses to practice law, dentistry, or medicine, real estate licenses, barber's licenses, and almost any approval from the state required to engage in business. Commonly, we are looking at suspension of building contractor's licenses. In most cases, these actions spur the payor to at least make an effort to pay what is owed, since it can impact his or her ability to earn a living, or even drive a car without fear of being stopped by the police.

Periodically, DCSS will send a list to the U.S. State Department, which interferes with the right to renew or obtain a passport for foreign travel - since you now need one to go to Mexico and Canada, and be able to return, that can cause quite an inconvenience. No more European cruises for the truly delinquent.

May 15, 2013

No Money for California Divorce Courts, etc.

In a recent article in The Recorder, it was reported that Governor Jerry Brown's revised spending plan [his 2013-14 budget] contains no additional money for our courts.

The story quotes a Judicial Counsel lobbyist as stating that the courts will not be able to make payroll by July, 2014, the start of the fiscal year, because of new changes proposed by Brown that will prohibit courts from maintaining a reserve account of any sizable amount for cash flow purposes.

If you have been in a family law department in the last year in San Diego County, you will see part of what budget cuts have done - hearings are set many months out for important issues like child support and custody - court reporters are only available in each department a few days each week, which means that there is no record of the proceedings the other days if you don't bring in your own court reporter - and, no, you aren't allowed to record hearings, so with no record there is no agreement on orders and no ability to be able to mount an effective appeal.

As usual, if you have money, you can take your case out of the court system, but the middle class can no longer afford court hearings even if they can afford lawyers.

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 31, 2011

Divorce in San Diego, Elkins, Court Resources and Delay....

Several years ago, Mr. Elkins was getting a divorce in Contra Costa County - he ran into a buzz saw when he showed up for trial. Much to his surprise, the judge essentially wouldn't let him present a case because he hadn't followed local court rules - mainly, he hadn't reduced all the testimony he wanted to present into declaration form. Those rules were specifically designed to eliminate trials in Family Law matters in that county.

San Diego is what is known as a Reifler County - pursuant to a California court case in the Marriage of Reifler, on a county by county basis, courts have been allowed to use declarations in lieu of oral testimony in family law cases - it's clearly faster and more convenient, and in the vast majority of cases justice is done by that process - if you want oral testimony, there is a procedure to follow, but the judge has discretion not to allow it. For trials, however, San Diego has always required oral testimony.

In theory, the Elkins decision had no impact on San Diego divorce cases. Unfortunately, for most litigants it isn't that easy. After Elkins, an "Elkins Task Force" was created to solve all the problems in the family law courts. [Insert smiley face here] They ran with the ball and have managed to make a major upheaval by permitting testimony in all hearings as a matter of right, and allowing children to testify in their parents' divorce.

These changes, part in force now and part in 2012, are going to make family law cases much more expensive and much more complicated. Rather than increasing justice, they will deprive more people of their ability to effectively present their cases. In the best of times, divorce courts have been the poor stepchild of the law - the worst court rooms, an insufficient number of judges, and judges poorly trained in the subject matter.

The high volume quickly too its toll on the best of judges, let alone those with no prior family law experience. Because of the high volume of cases assigned to each judge, the emotions attendant to the decisions, the number of substantive decisions that need to be made in each case, and the effect on families of mistakes, burn out among judges often comes quickly.

Where are the judges going to come from to handle the increased work load required by so much oral testimony? Certainly not from the judges who have the seniority to balk if assigned to a family law department.

Where it may take two to four months to get a hearing on a one hour matter before the new changes in the law, what will happen if it takes twice as long to get a hearing because the judge is busy hearing hour after hour of senseless testimony? Increasing chaos, less justice, and higher cost overall.

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 23, 2011

Whom Do You Trust to Give You Divorce Advice?

As part of my practice, I have Google alerts to keep me advised of news involving San Diego Family Law. Amazing what Google sends me daily - often some blog or other website change by a lawyer trying to impress potential clients, but also stories about divorces in the news - your basic TMZ saga of a celebrity or a really rich person.

Today, one alert was notice of a "divorce and property support group" where you would talk about your rights, avoid mistakes, learn who gets to keep the house. That's practicing law, or at least teaching the subject. Who sponsors the group? A real estate broker. The charge? $50. Doesn't sound like a support group to me. Sounds like a way to make money in a down real estate market, while getting your name known to people who might need a broker because they are forced by finances to sell their home.

Now a broker might be able to sell your house, but tell you about your divorce property rights? Give me a break. When I tried to find out who was doing this, I learned there is a group passing out "certification" as real estate collaborative specialists in divorce. Their claim to fame seems to be that they can do a better job of selling the house of people going through a divorce than someone who hasn't gone through their 12 hours short course. Never heard of such a certification program before. No surprise there. They are trying to capitalize on the "Specialist" and "Collaborative" designations, especially the latter which has some real meaning in Family Law. And if you want to get your divorce information from a Certified Family Law Specialist, there is a legitimate program behind that rating.

Personally, I know several brokers who don't claim this new "certification" who have sold dozens of homes in my cases with minimal friction between the parties - these are called PROFESSIONALS. I send my clients to them because they do their jobs, and no one complains to me about the choice. And, because they are professionals, they tell their clients to get their legal advice about their property rights from a lawyer.

Then there was the press release from a local divorce mill [advertise heavily, suck in a lot of business, and higher young and/or inexperienced lawyers to work on the cases]. The release was bragging about the great skill of one of its lawyers who had managed to get a father's timeshare with his children increased from 35% to 50%.

Sounds like quite a coup, until you talk to a certified family law specialist - he or she will almost certainly tell you that such orders are really pretty routine, it just depends on the facts. Although such a court order represents a 50% increase in time, it really means adding about a day a week - often a pretty easy feat as long as the non-custodial parent is competent, the children are doing OK in school and socially, and his or her work schedule permits the extra time - the system is biased in favor of equal sharing between competent parents, especially where they live close together, even though children generally perceive a 60/40 split as about equal.

Changing an order can be pretty easy if the 35% share hasn't caused problems, the children are doing well in school, no one has been arrested for a bar fight :), and especially if Family Court Services recommends the change. FCS mediates between the parents, and makes a recommendation to the judge if the parties don't agree.

In fact, an experienced lawyer may have his client agree to a 40% times share at the beginning of a case, knowing that adding an extra 10% [36 nights a year] is pretty easy to achieve the next time the case comes before the judge - all that is usually needed is that the non-custodial parent has kept his or her nose clean, stayed involved with the child or children, and can adjust his or her work schedule to accommodate the extra time since the prior order.

Now, if the non-custodial parent worked 60 hours a week, worked odd shifts, didn't or couldn't participate in parent-teacher conferences and doctor appointments, or take the children to their after school events, different case. Show me such a parent where the timeshare increased 50%, and I'll take notice. That would require luck and good lawyering. A beginner might be lucky....

February 21, 2011

Cost of Litigation in Divorce Cases: Millions for Defense....

Here's a question: Would you spend upwards of $300,000 in attorneys fees trying to get your spouse from collecting what he or she is probably going to get anyway? Does the answer change when the dollars change? Does the answer change if the person is in a tax bracket close to 50%, and has to earn close to $600,000 to pay those fees.

Let's say, hypothetically, there is a very long term marriage. The high earner makes about $1,000,000 per year. The low earner wants support to maintain the marital standard of living. In this hypothetical, the low earner worked throughout the marraige and still works, full time, earning about $80,000 per year. Hypothetically, the temporary support ends up being around $30,000 per month. In gross terms, that leaves the high earner with about $640,000 a year, and the spouse about $440,000 per year. Sounds like a lot of money, doesn't it, but hardly unfair to the high earner after 30 years of marriage.

Temporary support in my county, San Diego, is almost always computer and formula driven: Pretty predictable once you agree on the amount for the parties' earnings and tax deductions. Our computer programs calculate net incomes and divides them on about a 60-40 ratio, although it is adjusted for the recipient-spouse's earnings and often ends up closer to 55-45 if the low earner makes a good living.

Long term support [also called permanent or judgment support] is what a judge would order after trial and the division of assets - the court must then consider a bunch of factors, and is not permitted to use guidelines. Notwithstanding that rule, long term support tends to be close to temporary support for long term marriages: Those twenty plus years, especially if a career was built during the marriage.

Knowing all of that, why would anyone spend that kind of money avoiding the inevitable? I don't have an answer, but it's a question that I ask a lot. Especially after watching it happen time and time again. Personally, I'd rather give the money to my ex-spouse than to the lawyers. The lawyer isn't going to walk my daughter down the aisle or come to my son's graduation, and at least I'm keeping the money in the family.

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.

February 3, 2011

Co-Parent by Divorced Parents:

Here is a link to an interesting article in the New York Times Magazine from last Sunday dealing with the effects of divorced or separated parents attempts to co-parent.

I neither endorse, reject, nor comment on the contents, I am just the conduit. :)