Divorce And Mediation Blog

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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...." »

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.