Recent Posts in Attorneys Category

ATTORNEY MICHAEL C. PETERSON JOINS THE FIRM! 

• 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 both sides exchange the Final Declaration of Disclosure (there is more than one form) and FL-150's within 45 days of the first assigned trial date? The court does not have authority to have a trial when the parties have failed to comply with  Family Code section 2105.  Section 2106 clearly states this and Family Code section 2107(d) similarly states that it is not harmless error for trial courts to ignore FC §2105.

• 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!

Thurman W. Arnold, III, CFLS

Working with Family Court Judges

I recently attended the AFCC (Association of Family and Conciliation Courts) Conference in Orlando. Two Canadian jurists put on a useful workshop entitled "Dealing With Difficult Judges" and kindly gave their permission to share their materials with you. Many thanks to the Honorable Carole Curtis and to the Honorable Roselyn Zisman - both family court judges within the Ontario Court of Justice system. I summarize their observations and suggestions here, and add a few of my own I. would be grateful, and it might be beneficial to many of us, if you would weigh in on this useful topic by submitting comments!

As these two bench officers freely admitted, judges like all people can be difficult and reactive at times, and it can be quite challenging for attorneys and pro se litigants to know how to prepare for, and best behave within, the often edgy atmosphere of family court. This tension, if not understood or managed correctly, can have negative consequences to the legal consumers for whom family courts exist to serve. My intention is not to criticize the judiciary, since being an effective judge requires vast reservoirs of equanimity and knowledge, but to have a frank discussion about how lawyers and self-represented parties might consider presenting their cases - or in working with cranky judges - in ways that are dignified and productive. My hope is to improve the civility and professionalism of the family court experience for all affected, and to help unrepresented parties to have a fairer access to justice.

Here are some pointers for how not to aggravate your family court judge or commissioner and a few thoughts about what to do if that happens, despite your best efforts. The opinions expressed herein are not one size fits all. I also want to start a dialogue about how to make the job of family law judges easier for them, or - to put it another way - to discuss a bit about how we might help them to help us.

Suggestions for Interacting With Family Court Judges

• Rule #1: Be Prepared

Judges have little patience with attorneys, and pro pro litigants, who aren't prepared when they enter the courtroom. Many litigants don't seem to know what they are asking the court to do, why they are asking for it, and what the best legal or factual grounds are for the orders requested. Courts everywhere, but particularly here in California with the passage of Family Code section 217 (which requires live testimony hearings upon request), are grossly overburdened. Judicial resources are not sufficient to meet demand in these budgetary times, and this places a pressure and premium on directness and efficiency. Economic limitations can also make judges a lot crankier than if they had reasonable and adequate time and resources to manage their caseload and calendars.

Depending on County size, wealth and population, California Family Law Judges typically have between 20 and 35 or more matters on their morning calendars. In the afternoons they are often holding evidentiary hearings for the more conflicted OSC/Law and Motion litigants, or have blocked off afternoons for trials. If they are to move through these calendars by the end of the morning, brevity and efficiency becomes exceedingly important. When do we expect that they will find the time to read what is contained in possibly more than 30 files before taking the bench to listen to oral presentations and cross-examination? For the more diligent judges the answer may be evenings and weekends. Which is often when hard working lawyers likewise find the extra time that they need to prepare for hearings and trial.

Therefore, one of the biggest mistakes that agitates judges is parties or lawyers who aren't prepared and can't present their cases with clarity. If, as a lawyer who is directly paid to identify and communicate the justness of your client's position, you don't appear to care overmuch about your client's case then why should our judges care? Lack of preparation, especially for lawyers, is a cardinal sin.

• Rule #2: Be Prepared For This Particular Judge

In jurisdictions with direct calendar assignments, where a judge is assigned to a case for all purposes or for all purposes possibly until the case is reassigned for trial, learn about the particular bench officer(s) who presides over your case. The more you know the better. Information allows you to make useful assumptions about a particular judge's attitudes and policies.

As Judges Curtis and Zisman note, the best judicial officers are predictable and consistent in their rulings. "A judge's value to the public as a judge is in direct proportion to the ability of the lawyers who frequent the court to predict how the judge will deal with a particular issue." I find this to be so true in my personal experience. Lawyers who know how judges tend to rule on a given issue can with confidence set their client's expectations realistically. Armed with such knowledge, both sides are in a better position to have productive settlement discussions that avoid a "crapshoot" and the associated risks and expense. Moreover, they don't waste time potentially infuriating bench officers with weak arguments that judges may made known that they rarely accept.

Lawyers who are active practitioners in any given court usually have good insights into local judge's attitudes. They may also be aware of information about a judge that is not generally available to the public, like their expertise, practice focus, and reputation before they took the bench. Knowing that while a lawyer your judge participated in a case that generated a published appellate decision on a move-away case, for instance, could provide you a wealth of ideas on how to tailor your presentation. Likewise, knowing whether a judge has been reversed is useful for making sensitive presentations.

Pro per litigants should consider observing a judge going through her calendar over the course of one or more days. You will learn tons about their judicial attitude from watching them in open court, and indeed you may witness other parties get scolded or reprimanded for missteps and so avoid the same mistakes. A simple but classic example is the family court litigant who brings a small retinue of family members who are there ostensibly to provide familial 

• Rule #3: Notify the Court If the Case Will Be Continued the Day Before

Sometimes one or both attorneys or parties intend to seek a continuance of a hearing, possibly because they want to discuss settlement but often because one or both are not ready to proceed or has late papers to submit.

Different judges have very different attitudes towards continuances, particularly where they have already invested the time reading the materials and then are faced with a continuance request. Lawyers who know that a case will not proceed are well advised to contact the courtroom clerk at least a day in advance to give a head's up - otherwise, they may wind up with a judge who justifiably feels "put out" and therefore cranky. Some allow self-represented parties to give advance notice of agreed upon continuances, but the other side will need to confirm it. Often messages must be left on the clerk's answering machine, and you may not know in advance whether they were received or acted upon.

Where both sides have attorneys and a particular judge is known to permit it, counsel should always let the court know one or even two days in advance that the hearing is not expected to proceed that day.

• Rule #4: Look At the Local Court Rules, If Any, and the California Rules of Court

Some counties or individual courts have local rules; many do not. Most judges have their own rules and styles, often never to be found in written form. It never hurts to ask the Court clerk, when the judge is off the bench, whether that courtroom follows any specific preferences, customs, or rules of procedures. 

The state-wide source for procedural rules impacting California Family Law (and Juvenile cases) are the California Rules of Court, beginning with Rule 5.100. Rule 5.118 is one of the immediately most important, since it deals with initiating common OSC and Motion requests for custody, support, etc. These rules apply to all family law matters in all California courtrooms.

The Riverside County Local Rules pertaining to Family Law cases can be found here. Start with Title 5. I discuss these in more detail below. The Los Angeles Family Court Rules can be accessed here. Basically you ought to go to the County website where your case is filed and look for the local rules for that particular venue. If they exist you will be well served to review them for relevant tips and local policies. 

• Rule #5: Talk to the Judge, Not the Other Party or Lawyer

The time to discuss your case or argue with the other side is before you enter the courtroom. It drives judges nuts when two lawyers, two pro se parties, or any combination of them begin to argue at counsel table as though the judge was not present. Keep your focus on the judge, and generally avoid looking at the other party except for emphasis. Never address them directly.

A very important related concept is that if you bring witnesses or support people in the courtroom, tell them in advance to keep control of themselves. This means no interruptions, no head shaking or head nodding, no gasps, and no agitated movements. It is natural that the people your bring to the hearing have a some degree of investment in the outcome. However, when these people act in an uncontrolled fashion, that may affect the court's evaluation of you. Thorough lawyers always remind clients and the support people who accompany them to maintain a even demeanor and not to speak unless spoken to.

• Rule #6: Never Assume the Court Has Read the File, and Never Ask

Judges can be easily overwhelmed at times for any number of practical or personal reasons. Never assume the Court has read your pleadings, but at the same time it is pointless to ask him if he has. Asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they've admitted on the record they've not read the file.

Instead, start your presentation as though the Judge has not read the materials. Most judges will interrupt you to advise you when they have read it. Be nimble. At the same time, understand that the court only has enough time to listen to summaries of information, not the entire case. You need to know in advance what your highlights are soundbites are, and they should be presented in as orderly a way as possible. Having outlined these in advance is very helpful in the heat of the moment, where you become distracted by some exchange you did not expect and must return your focus to your goals. Outline your highlights on a notepad in a way that a given sentence triggers your memory of the remaining points you wish to make.

• Rule #7: Make It Easy for the Judge

• Rule #8: Avoid Head-Butting With the Judge (and the Other Side)

Whether or not a judge seems difficult or cranky, it does not help to get into a head-butting contest with him or her because you just can't win it. Head-butting may be a "kiss of death" for an advocate; the issues themselves have degenerated into an ego contest, and if you are in court to serve your ego you will likely have an unpleasant outcome. Remember, people are watching, including court staff. The Judge not only knows that she is the supreme power in the courtroom, she has her dignity to protect. Confrontations with judges suggests a battle between equals, and you are not equal. It also implies a winner and a loser. If you head-butt with a Judge, you are asking them to prove to everyone present who is in control. That usually ensures that you will be shown to be the loser for the simple reason that finding in your favor may then imply that you are in control.

Head-butting might well begin with an attitude on the part of the judge. If this occurs, move into "damage control." Immediately lower your tone. Avoid flailing hands or arms. Speak evenly, slowly, and respectfully. This may defuse the situation before it becomes impossible to redeem. As Judges Curtis and Zisman put it "You must do whatever you can to end this contest. Consider a retreat, whatever that means in the circumstances. Move your reaction into this range...:  be calm, be measured, be focused, and be polite (be unfailingly polite)." With a particularly difficult judge, the hotter it gets the calmer you must become.

A cautionary note here: Many judges I know respect an advocate or a person who will stand up to them, and not simply fold because there may be some debate. So much depends upon your tone and style even as you perhaps stubbornly, but calmly, present your arguments or evidence. Hence, do not take these suggestions as meaning that if the judge seems to disagree with you that you should become silent. It is how you convey your message that often matters most.

Be persistent, unless it becomes obvious that the Court has heard enough. Often judges will tell you this.This can become a real problem if you have not had the opportunity to make "a record" for purposes of a possible appeal (something you never want, but sometimes must consider).  If you are foreclosed from making a record, you should note that respectfully before quitting.

Similarly, it is usually pointless to argue with a judge once they have ruled on any given matter, but if you feel there is more to say and you are uncertain whether the judge has heard as much as she will, you might try "Your Honor, before the court moves on, might I add one more thing?" 

• Rule #9: Never Lie to the Court

It is amazing to me how often attorneys will intentionally misstate facts to the court, or create inflammatory arguments that has little basis in fact. I am sad to tell you this happens a lot, and in fact this is one reason why divorce attorneys may be viewed as bottom feeders. Yet, this is only a small, if vocal, segment of the legal practitioner population. Similarly, parties in relationship disputes are highly motivated to misrepresent information for more directly obvious reasons. 

As a advocate, one of the most important things that lawyers possess is their reputations. Judges who will talk about it will candidly admit that they are every bit a catty lot as the next person or profession. The talk in chambers, they talk in lunchrooms, they talk in restaurants, they talk in meetings amongst themselves. One of the common topics is about the lawyers who come into their courtrooms. Their views about particular attorneys' reputations can be infectious within the judicial community, which is not to suggest that they do not attempt to remain impartial on a case by case basis. It is true that sometimes it feels that attorneys who too freely spin the facts get away with it. This is one reason I am a proponent of monetary sanctions against attorneys directly, something I suggest in my Davenport Blog. One consequence of unaccountability is that opposing sides, and unrepresented parties, take their cues from the lawyers they come into contact with and mimic bad behavior of those they observe. The behavior of legal professionals matters. terrible message to send. There are so many reasons why it is imperative that lawyers not be deceitful.

Never lie to the Court, whether you are a lawyer or a party. Once a judge gets fixed on the idea that your information is untrustworthy it will pervade his view of you within your case, and is likely to haunt you. There are subtle and not so subtle ways of punishing litigants by imposing outcomes that can be catastrophic for your life, from fixing alimony or support orders above your level to pay to depriving you of time with your children. And, be advised, lawyers love it when the other party lies. This is exactly what can be seized upon to win their client's case, sometimes far more dramatically than when people just admit the weaknesses in their positions and move on.

• Rule #10: Don't Tell the Judge it is Obvious She's Already Made Up Her Mind

It does happen that lawyers and parties may find that the Court has prejudged the case before any oral presentation; an example being the circumstances identified above where the lawyer or litigant has lost all credibility. But at other times it can be very difficult to understand why a bench officer may seem to have already decided your case before you open your mouth.  

This is a tough one there may not be much that you can do about it. The advice of judges Curtis and Zisman is to stay calm and focused, and just keep going. Don't respond with something like well, "I can see your honor has already made up your mind," and don't otherwise communicate this with your body language, glares, or tone. This too can be a tall order. But on balance neither the client nor their case can be served in this fashion. For lawyers, my experience is that clients better appreciate the fact that you remained professional rather than snotty with the judge, because they will watch in real panic as their spokesperson begins to lose his or her poise. Similarly, they will know you did everything you could where you don't pour accelerant on the fire.

Judges Curtis and Zisman suggest that lawyers and parties need to know, under such circumstances, when to fold. They also need to know how to protect the record - that is what is said on the record that is recorded by the court reporter. As with the rude and abrasive judge discussed below, a good record for an appeal may be your only hope especially in jurisdictions that video or audio record the hearing, since tones of voice and sarcasm are often lost in a written hearing transcript. And, beware, I once had this happen with an extremely difficult Juvenile Court Judge (retired some years now) and so made a request for the written transcript (which was all that was available), and when I received it I found that major portions had been edited out entirely. Obviously the judge had instructed the court reporter to falsify the transcript, but how was I to prove it? I did manage to get a Writ of Mandate on appeal that removed the judge from future hearings in the case, and then won it in front of a much better judge at trial. BTW, proof that a judge has doctored the hearing transcript would almost certainly result in judicial discipline if proved, but that is can of worms I do not recommend since if your attack on the court fails that judge might actually make it their mission to ruin an attorney or their case.

• Rule #11: Don't Duke it Out With the Rude and Abrasive Judge

Unfortunately I witness this more than I care to admit as an observer at courthouses, although very rarely in my cases these days and one possible reason is that I usually know when to shut up. Judges Curtis and Zisman state "Some judges are rude, aggressive, even abusive, for no apparent reason, or at least none that justifies this behaviour. It is extremely important for the lawyer (or the party) to be calm, and to remain calm, polite, [and] focused." I quote them directly to reinforce that I am not one lawyer griping about judges; similarly, I have friends who are retired bench officers and they will admit that such conduct occurs, and even that at times they regrettably engaged in it. 

The goal of lawyers in such situations is, above all, to defuse the situation. This may seem an impossible task, particularly when it is our job to protect our clients. If the behavior is really so over the top that our clients are being abused we must object to such behavior.

All I can recommend to nonlawyers is that they not get sucked into such exchanges with the court, but that at the same time they politely and firmly stand their ground.

• Rule #12: Ideas for Coping With Judges Who Do Not Know Family Law

California matrimonial law is immensely complicated. Many lawyers who regularly practice in family court really have little clue what they are doing, in part because the simpler contests arise over and over again and many lawyers learn enough to deal with these simple situations but would be highly stressed on more complicated situations. Likewise, many family court lawyers have very little actual trial or even deposition experience. They don't know how to cross-examine witnesses. They only have a glancing familiarity with rules of evidence. Some of these lawyers actually go on to become judges. Others may be quite skilled in the criminal arena, for instance, where they were once prosecutors or public defenders. These judges were once real trial lawyers, but that doesn't mean they understand family law. Others may have been quite senior civil litigators who nonetheless rarely if ever handled these types of cases. 

Curtis and Zisman point out that this situation is actually more easily remedied than some of the others discussed here. They suggest that particularly when you know that a bench officer is not overly familiar with this area, that you adjust your presentation to ensure that you covering the basics. State what you are asking for, identify any statutory authority, and discuss the legal standards that apply. One of the reasons I blog so much is to popularize information to empower nonlawyers. Lawyers have lots of legal treatises to subscribe to and review (when they bother); the public generally does not have these so nearly accessible. I hope this website aids you. However, please remember, my blogs and articles are intended merely to be educational and it is impossible for me to guarantee their accuracy under any fact pattern. You have to do your own work and draw your own conclusions.

• Rule #13: What to Do With the Judge Who Hates Family Law

This is usually a function of judges who don't know family law although as you might suspect, a jurist who hates family law is likely not going to bother to learn it. The best way to overcome this problem is to be polite, be brief, and educate the court about what you want and why you are entitled to it. If you have no idea as to either, the judge who hates family law may become an abusive judge as well. Politely and firmly resist being rushed. But get your points in clearly.

• Rule #14: Cite Recent Authority Whenever Possible

Thurman W. Arnold, III, C.F.L.S.

Marriage of Greenberg (April 28, 2011) 194 Cal.App.4th 1095

Q.    What are the refund policies if I reconcile with my spouse or switch attorneys?

A.    Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention. 

Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees.  They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money.  They are required to give a full statement and explanation of your fees and charges upon request.  Refusal to do within 10 days or less may be a cause for State Bar Discipline. 

Q.    Where does the Retainer Deposit go?

A.    Lawyers are required to place all unearned fees into a State Bar approved Attorney Client Trust Account. This is because the deposit does not belong to the attorney, it belongs to the client. It is only after fees are earned or costs are expended that the attorney may remove that amount of money from their trust account.  Some lawyers do not maintain or use their trust accounts, and some will take the money upon retention as though they have earned it. This can result in discipline against the lawyer. 

The importance of ensuring that you attorney follows State Bar practices cannot be overstated. Do not hire a lawyer that does not maintain a trust account. 

Q.    What is a Family Law Retainer Agreement?

A.    A Retainer Agreement is a written contract between you and your divorce lawyer. The California Bar requires that any agreement for services where fees are to be charged in excess of $1,000 must be memorialized by a written Agreement, and the Client must receive a copy. It describes what types of services the attorney agrees to perform, office practices, billing rates and practices, and how any fee disputes will be resolved between you.

For the agreement to be enforceable by the attorney, it must state whether or not they maintain legal malpractice insurance.

Q.     What should I ask a family law attorney to see if we are a good fit?