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Recent Blog Posts in July 2011 |
| July 31, 2011 |
| APPLE LION and VMWare- Upgrading Your Virtual Computer to Run Flawlessly With the New OS X |
| Posted By Thurman Arnold |
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So, I am a Apple/MAC freak but most legal programs are written for Microsoft operating systems. I run XP with MS Server 2003 at my office and at home. I use VMWare on each of my seven work stations as a virtual computer that runs Microsoft OS and related progams.
I have now installed Apple Lion with VMWare and, after checking for other's difficulties and reading their cues, my upgrade from Snow Leopard to Lion, utilizing VMWare, worked flawlessly.
This is what I did:
It all worked seamlessly - and I have to say my MAC/Virtual computer running XP is faster than it has ever been - in fact, screamingly fast! I am not sure if the quality of the screen images might have degraded - if so, I am confident this will be fixed and the quid pro quo is worth it, to be sure. It seems that my internet connection has been boosted dramatically too.
All my MS programs are operating without errors or mistakes, including Amicus Attorney, so far. I recommend this configuration for lawyers and other business people who need computing speed. This reduces the fees our clients otherwise must pay us to get the job done!
If I had a ton of dough, I would throw it at Apple stock - again! (Last time was with the Iphone - thanks Steve Jobs!)
Cheers!
T.W. Arnold
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| July 30, 2011 |
| Can I CONTINUE My DIVORCE TRIAL? |
| Posted By Thurman Arnold, C.F.L.S. |
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Q. My divorce trial is scheduled for next month. I want to change attorneys - will the case be continued to give a new attorney enough time to prepare my case correctly?
A. Trial continuances are disfavored under the law. Any application to continue a family law trial must be made pursuant to Cal.Rules of Court, Rule 3.1332. It allows for "ex parte" requests to continue trials as well as such applications on noticed motions upon a showing of good cause and in the interests of justice, and lists some examples of what a trial court might properly consider to be "good cause." Subsection (c)(4) includes substitution of trial counsel as a ground
"but only where there is an affirmative showing that the substitution is required in the interests of justice." Courts are highly unlikely to permit more than one continuance without a really good reason, so I hope this is your first request.
Usually when you file this kind of ex parte you should also ask the court, "in the alternative", for "an order shortening time" (OST) for the hearing on the motion" since judges are feeling pressured from the "Elkins" changes in the law and are stretched in their abilities to read ex parte paperwork (usually received by the court the day before or the morning of) at the last moment. Indeed, ex parte applications on all matters except the direst emergencies are being increasingly denied - and they irritate judges. In fact, some judges may sanction a party or their attorney for a clearly improper one.
Whether you seek an OST also depends upon where you are in the procedural timeline - for instance, if the discovery cut-off (including the exchange of any designation of experts per the Code) has not yet occurred but would toll between the date of an ex parte hearing and the date of a hearing on shortened notice per your applicable local rules or by statute, then be sure in your ex parte to include a request that the discovery clock be switched off until the court issues its ruling on the continuance. Otherwise you or your new attorney will need to file a motion to reopen discovery once the case is continued - assuming that important things remained undone - usually the case when parties are switching attorneys on the eve of trial.
In fact, I have seen cases where parties want to change attorneys because the offer that is on the table is at a substantial discount for how much or what agreements the case should reasonably be settled for, but because the weaker party's attorneys messed up the case that party is now at such a disadvantage that they must seriously consider taking the offer or doing worse at trial. Strong, aggressive counsel for a powerful party (usually the "in-spouse") will vigorously try to push the case to its conclusion before you, the "out-spouse," can catch your balance. This is a recipe for disaster. By the way, having good competent divorce counsel from the beginning greatly enhances the likelihood that your case will be fairly settled and that it will not go to trial - that is the goal for any sensible person.
Here are my suggestions:
- See whether the side has done everything the law requires of them in formulating your grounds for "good cause" under Rule 3.1332. If they have and your attorney failed to also comply, this is not good. If neither side did what is required to avoid irregularities, then that is better. If your side did comply but the side did not, that is best and you should point this out in your papers and in oral argument.
- Did the other side comply with all applicable Local Rules regarding trial? For instance, in Riverside County we have local Rule 5.0053 which mandates that a Trial Readiness Conference be set before trial, and at least in Indio that you (or your attorney) sign a form that you understood and will comply with what those rules require. Here is a link to Title 5 of the Riverside County Local Rules for Family Law cases. There may be similar rules in your jurisdiction. Rule 5.0065 discusses ex parte procedures in Riverside County, which generally includes the family law divisions in downtown Riverside, Hemet, Indio and Blythe.
- Draft a declaration that establishes good cause for your request - one that speaks to both justice and procedural issues. Anticipate what prejudice the other side will claim in opposition to your continuance request. Offer to ameliorate it if you can, in advance of the hearing on the ex parte.
- Rule 3.1332(d)(10) permits the court to impose "conditions" if it grants a continuance. These need to be reasonable of course. A frequent condition "no more continuances." Unreasonable requests may be that you are asked to waive a fundamental right that is a key issue in the case itself, i.e., a waiver of spousal support or an agreement that the court will have retroactive jurisdiction at the trial when it does occur to reach back and modify support to the first trial date. Offering to contribute to the other side's attorney fees incurred surrounding the rescheduling may be appropriate under certain facts.
- Before you file your ex parte, be sure to attempt to "meet and confer" with the other side in an effort to obtain a stipulation to continue instead, and in order to discuss how you might minimize their inconvenience and prejudice and to discuss possible reasonable conditions in advance of the hearing that would address those issues. Attach any confirming letters as an exhibit.
- Make your motion as short as possible and author it to read fast - not more than 10 pages including declarations, points and authorities, and exhibits. Judges have no time to read long winded stories.
- Be sure to notice all the parties for the ex parte. For instance, if there has been a Borson motion by either side that attorney (the former, Borson attorney) must also get notice of the hearing and the paperwork at the time you set the hearing.
- Hire your new attorney first and have them make the motion (which is costly in terms of the amount of the retainer they will reasonably require, since if the motion is denied that attorney knows he may be going into a trial that will take immediate emergency hours to come up to speed on).
- If you haven't retained counsel yet and just want to continue a trial "to get counsel," you have a problem. While this excuse might work at the first hearing on an OSC or regular motion, it is unlikely to convince a judge who is managing his trial calender.
Good luck with your new attorney! |
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| July 29, 2011 |
| FREE LEGAL ADVICE for DIVORCE - I Cannot Possibly Respond to Everybody! |
| Posted By Thurman Arnold |
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I want to apologize to those people who write me notes that I simply cannot respond to. While my websites are now getting over 15,000 visitors each month, I am but one person. The articles and blogs I write are intended to be much more than a source of business for me - they are my "pro bono" contribution to you all and my greatest hope for those of you whom I can never meet is that something in my writings assists you in your legal case, or persuades you to find some mindfulness in these difficult times. I am so grateful that my writings are of any value to anyone!
My staff receives 25 calls each week for free advice and guidance, and I get as many emails - in addition to those folks who actually do come in and whom I accept as clients. Those are the people that are my supreme responsibility and I work for them 24/7 for a fair fee once an attorney client relationship is established. I won't put their interests second. So help me out please on the calls.
For those who send me emails - whose situations I deeply feel for - I try to respond as I can, but I have a full practice doing divorce litigation and family law mediation and I don't stop when I go home, particularly when I can find time to Blog. Please make them short and to the point - I try to read them all and respond as I can or to write a Blog but the long ones are hard to absorb in a short amount of time. Please do not be offended if I cannot and don't respond to you. I LOVE comments to my Blogs and I respond to 95% of those - but remember this mantra in family court, "reduce, reduce,.... reduce!" I remind myself of that with every brief I write, and it is a challenge.
Please try word combination searches with my onboard search engine (upper right corner) and you may bump into something that will help decide which lawyer is best for you in your locale, and how to proceed if you represent yourself.
I am available for phone conferences and webcam consults on a limited basis for people who want honest, smart advice about their cases and family/legal situations. I presently bill $350/hour for those consults. I only have certain times set aside for that part of my legal practice and these can be set up with my office and paid in advance by credit card.
Forgive me if this sounds pretentious. It pains me that I cannot serve you all and if it happens that I seemingly "ignore" you within this horrific landscape of relationship end.
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| July 21, 2011 |
| The MINUTE ORDER In My Case Differs From What The JUDGE SAID But My Ex Says We Must Follow It - What Can I Do? |
| Posted By Thurman Arnold, CFLS |
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Q. I was in Court three weeks ago and I swear the Judge said something entirely different from what the clerk's minute order says now. My ex says we have to follow the minute order, but it is WRONG - what should I do?
Libby, Rancho Cucamonga
A. Libby -
This is a timely question and a common problem. Sometimes the judge's clerk misunderstands or doesn't take down all of what a judge orders - which is no surprise since discussion tends to move fast and emotionally in family law court and these folks may be rushing to take notes or be distracted.
There is always something called a "minute order" in the court file, or online if your jurisdiction makes the court docket available, which the clerk prepares immediately, later that day, or sometime even later then that which identifies the name of the case, an abbreviated description of what motion was pending, whether the parties had attorneys and who they were, and summarizes the court's rulings were at the hearing itself.
The problem is that they may not accurately reflect what was said because while the court reporter is recording everything spoken, there is rarely any discussion between the judge, clerk, and reporter later to assure that everybody is on the same page and that the minute order tracks it all.
Really minute orders give some immense power to nonlawyer/nonjudge court clerks in the sense that these people may really have a limited understanding of what was transpiring or what its import was. If the minute order is in error, most court filing departments will not accept and present to the judge for signature a formal order after hearing that does not conform, usually verbatim, with the minute order even if it is right!
I want to say, however, that some of my favorite people are court clerks. I can't imagine it being intentional, and divorce court is just plain complicated and challenging!
Yesterday an important decision was published which answers your question. In In re A.C. (2011) 197 Cal.App.4th 796, an opinion issued by the Second Appellate District Court of Appeal, the justices held that the reporter's transcript of what the court orders on the record trumps the clerk's minute order. This outcome should be obvious, but many court offices slavishly follow minute orders.
A.C. is an appeal from a juvenile court order. There was a conflict between the oral order of the court and what was recited in the clerk's transcript. The appellate court ruled "we presume the reporter's transcript is the more accurate."
So, get a copy of the transcript and see if this helps you. If so, file a motion to clarify or correct the minute order or the order after hearing and present the transcript to the court.
I will tell you that all good lawyers with clients who can afford to pay the freight (for the transcript to be prepared) request a transcript after every important hearing. These are invaluable to have in your possession where good stuff for you was said on the record, and it can be impossible to obtain them years later if you then find you need them.
I will write another day about how to deal with court reporter errors....
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