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Recent Posts in Second Legal Opinions Category
| August 29, 2011 |
| SECOND OPINIONS With THURMAN W. ARNOLD - Honest Feedback on Family Law Matters |
| Posted By Thurman Arnold, CFLS |
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Quality Divorce and Family Law Legal Advice and Second Opinions
and Some Philosophical Spice!
Because this Blog has brought me into contact with so many wonderful people, a segment of whom are facing daunting struggles in their personal lives who would otherwise never wish to share the company of attorneys (not because family law attorneys are necessarily bad companions, but because divorce lawyers like myself are rarely called in except when situations reach critical mass), I hope to share from time to time about issues that extend beyond my role as a family law specialist and speak to the dangers that flow from the disintegration of our core identity and value systems - the family unit.
Whether mine is an exercise in self-aggrandisement or a cutting edge dialogue about the elephants in the rooms we all inhabit remains to be seen. However, as a person on the front lines where people battle against one another about basic concerns over economic and emotional security, I worry that the collapse of the most basic unit of human interaction - families in whatever configuration - potentially guarantees the collapse of the social structures upon which we all depend. We may deny that Americans are vulnerable to the same erosions that beset Pakistan, Syria, Africa and so many parts of the world. But once traditional expectations for the quality and entitlements of peoples' everyday lives seemingly becomes impossible to fulfill (for instance because fundamental needs for food, shelter, or intimacy cannot be met) a radicalization will occur that devalues and undermines all social glue in a self-perpetuating cycle of violence.
If at the end of relationship, as I observe not infrequently, people seek out lawyers to act as destroyers and imagine courtrooms as the place to accomplish revenge, they are already living within a self-imposed world of divorce jihad. Indeed, I have written much about how "people blow themselves up in divorce all the time." Considered from that perspective, the self-centeredness that devalues the lives of others and goes to war with each and every other person's right to seek happiness becomes the soil in which we figuratively begin to plant roadside bombs within our own communities.
The good news for those who find such thoughts depressing is that with a click of the finger you can vote to relocate your attention elsewhere in an instant! : ) For those for whom the tone of this website resonates, I'd like to deepen our relationship.
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I remember with great fondness and gratitude many of the lessons of Richard "Dick" Flacks, a sociology professor at the University of California at Santa Barbara (now retired), who made his mark on me back in the 1970's when we lived in a seemingly kinder and gentler world that was nonetheless beset by challenging and scary transitions.
Everything that we worried about and foresaw at that relatively innocent time of our cultural and even global development has unfolded in ways consistent with our darkest fears. And yet, the seeds of all of the glimmerings of hope and social responsibility remain with us and have sprouted in equal measure. This tension between polar extremes seems to be the battle that we are waging today, whether as individuals and nuclear and non-nuclear family units or 'tribes' of people. These are difficult and frightening times. People at the end of relationship and families in transition are the microcosm that collectively mirrors our experience as individuals in a larger way. Society's successes and failures tend to match our individual interpersonal successes and failures - and this interdependency ought be noticed, honored, and managed carefully - for the future of us all. If we cannot regulate our choices and behaviors in positive ways when we come together in twos and threes why should we expect different results en masse?
One of the most enduring principles that Richard Flacks taught was the idea of "making personal history", a concept that was not based upon a vision of egoistical success of becoming an 'historical figure' as the words seem to suggest, but which referred instead to the idea that each one of us can make our own small contribution to improving the circumstances of others (and therefore ourselves), one person at a time, by incorporating morality and ethics into the decisions and choices our daily lives. The fact that Dick was one of the founding members of the 1960's movement known as the SDS (Students for a Democratic Society) made him something of a radical, authoritative, and inspiring figure (I remember meeting with him once after class about a paper I was writing, and having him point to an indentation in his skull received by a gun butt when the FBI raided the SDS offices - or at least, that is my memory of what I was told).
Relationship transitions and the struggles of families managed by adult human beings struggling with conditioned minds that easily slip into trance (fear, resentment, the imperative to control) is where the rubber hits the road in terms of our impacts upon others and our own happiness. And in terms of charting our way through the trainwreck of our times. How we manage divorce and family law trauma can enslave or redeem us.
My desire is for all of us to speak the truths more often than not. For those people in the midst of a divorce or custody crisis, and for purposes of this Blog article, who have found themselves questioning the legal advice and performance of the family law or civil attorneys upon whom they are forced by circumstance to rely upon, or for those others who cannot afford counsel and just don't know what to do, my wish is that something in these pages gives you some insight or inspiration to do things better than might otherwise be the case.
But my greatest desire is that the lessons of Richard Flacks live on through your decisions and choices - for you and your family, that you decide to make "personal history" in ways distinct and more evolved than what you did before, or what your parents did. Divorce trance is generational: It passes from parent to child until someone questions and betrays the cycle of unthinking insanity. True, you must not sacrifice your safety. But safety is not always that image that our fears first cause our minds to define.
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One of the aspects of the practice that I greatly enjoy is weighing in on how you might better navigate whatever path lies before you and helping to evaluate the professionals that you must employ. I do it for a fee, but if I hit the lottery I promise to devote myself to public service (sound familiar? I've never won more than $2!). In the meantime I am available for Skype and phone and office consults for those who otherwise don't wish to or cannot retain my services directly.
I do my best to answer emails for those simply seeking free advice, but please don't be offended if I do not respond to you directly. Hopefully the articles and blogs contained herein serve you and make some small difference!
Thurman Arnold, C.F.L.S. |
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| April 07, 2010 |
| How do I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. How do I fire my attorney?
A. You are free discharge your attorney, and terminate his or her services, for any reason and at any time. Attorneys cannot require that you first pay off your bill, or that you reimburse them for expenses (including any costs associated with copying your file) before they will withdraw. In California this is accomplished with the Courts by both you and your attorney signing a Substitutions of Attorney which is then filed with the clerk of the Court where your case is pending. Simply download this form, fill it out, and take it to your attorney's office for their signature. Usually they will get it filed and send you a "conformed" copy (i.e., one that bears the filing stamp of the court).
If you do not have a pending case, you need simply write your lawyer an email or letter telling him to cease all efforts on your behalf.
She must return your entire file, except her notes, within 10 days of a written request. The California State Bar will discipline lawyers who fail or refuse to comply. She must also give you a final accounting on his bill within that time, and return all unused fees to you. Unless you have a true flat fee arrangement, she cannot keep the balance of your retainer and must turn over to you all unused funds within a reasonable time.
One important bit of advice, however: Be careful how you time firing your lawyer. He or she is "on the hook" insofar as the Court is concerned so long as they remain your attorney of record. There may be reasons why you should wait until after a hearing takes place before signing the Substitution.
In the event you choose not to sign a Substitution of Attorney - where for instance it is the attorney who is firing you - that attorney remains on the hook until an Order for Withdrawal is signed by a Judge, which can only occur after a Notice of Motion is filed by the attorney to be relieved as your counsel. The motion process takes at least 25 days and you are entitled to oppose it. The lawyer must provide a declaration stating that the attorney-client relationship is broken between you, but they are not required to say why (for instance, that you lied to them or were uncooperative). Unfortunately, however, I see many lawyers who sloppily do tell the court something that may hurt your case or the court's perception of you. Frankly, if they do that it may be grounds for a State Bar Complaint.
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!
Thurman W. Arnold III
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| January 20, 2010 |
| What should I do before selecting a divorce attorney? |
| Posted By Thurman Arnold |
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Q. What should I ask a family law attorney to see if we are a good fit?
A. Before you step into a lawyers office, you should know something about them. Today this is easy. Go to the California State Bar website. Search the attorney's name. You will learn where they attended undergraduate school and law school; when they were admitted to the Bar, whether they belong to any Bar Sections and stay current with the law, and how long they've been practicing. Not all law schools are created equally.
You will learn whether they have been disciplined. Lawyers can be disciplined for a number of reasons; some go to the essence of that attorney's character and affect their reputation in the community, including with Judges before whom they appear.
Second, ask for a referral. Be sure the reporting person is reliable themselves, not over-conflicted, and that they have a basis for their opinion.
Referrals from long practising mental health professionals are an excellent recommendation.
Referrals from other lawyers is a very good way to choose a lawyer, and if you know an attorney run the names you are considering by him or her. Martindale.comrates lawyers in terms of client satisfaction.
Web sites, like this one, are also a good place to start. They may tell you something about the attitude of the attorney and the style of their practice, or they may be a misleading billboard. Most attorney websites are put together by advertising firms and don't reflect the real personality of the lawyers. Many lawyers pay ghost writers to put up blogs or "articles" on their sites. They subscribe to "newsletters" that they appear to have, but have not, written.
Thurman Arnold has researched and written every word on this site (truly). We don't believe there is another family law website in the country that matches our commitment in making dissolution related information available to people for nothing.
Many lawyers will not charge for an initial consult. The Law Firm of Thurman Arnold III does not charge for initial consults, over the phone or in person, and we usually spend a half hour to an hour with clients when we first meet them. We want to know about you, and it is important that you get to know us.
Remember that lawyers are busy professionals, and time is their stock in trade. It isn't ethical for you to interview lawyers to gather free information or just to validate your opinions.
Asking the attorney their opinion on issues important to you at the initial meeting is not inappropriate or off limits in the slightest.
You are trying to determine several bits of information:
1) Is this attorney actually experienced in ways that are helpful to you?
Family law is complicated because it is not just the lawyer's experience with the law that is important, but it is also their familiarity with professional and life situations similar to your own.
2) What is the attorney's attitude about how divorces should be handled? Does she know how to listen?
Is that attitude consistent with your own goals? For instance, if you intend to lie to your spouse, hide assets, and if you care only about the outcome from your own perspective, you would need to hire a lawyer who tends to practice in a way that accomplishes that goal. If that is who you think you are, you want a divorce gunslinger.
But, beware, these lawyers will treat you the same way as you treat others.
If instead you are like most persons involved in the trauma of divorce, rational one day but distressed and confused and even nasty and reactive the next, you need someone compassionate and ethical to guide you. If you think that being ethical means being soft, examine what it is in your thinking that concludes that.
Conflict resolution is not the same as conflict avoidance. You do need to make sure that your lawyer has the background, ability, experience, and interest in you to manage your case. The best attorneys have some educational background in the family sciences or family studies, and regularly undertake family law continuing education. Such training reflects an unusual commitment to the craft that may distinguish them from the pack. The Law Firm of Thurman Arnold III actually lists our experience, training, and continuing education on this site to evaluate - we challenge other attorneys to do likewise.
3) You need to feel that you and the lawyer you hire are a good fit. If it reliably seems that the two of you can act as an empathetic team, and that you value the same things, you are on the right track.
T.W. Arnold
1/20/2010
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| January 17, 2010 |
| I have an attorney but what if I want a SECOND OPINION? |
| Posted By Thurman Arnold. Certified Family Law Specialist |
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Q. I am represented by an attorney. However, I don't have a lot of faith in him anymore and now trial is scheduled in four months. Am I being paranoid in wanting a second opinion about my divorce case?
A. Dissolution proceedings generate great anxiety. The circumstances surrounding the breakup of relationships, division of property and debts, sharing of custody, fears about future economics, and being a stranger to a process that one can only marginally direct or control cause difficulties in evaluating the quality and value of advice that clients receive.
Please don't hesitate to seek a second or even a third opinion about your family law matter.
We all ought to have a healthy skepticism about what professionals tell us, particularly when the subject affects us in an intimate, immediate or lifetime basis. It is not uncommon to become suspicious of one's attorney, or to lose confidence. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer; a second opinion may become useful in grounding you. Your fears may be well founded, or they may be caused by a lack of understanding (most often a result of poor communication skills on the part of an attorney, or a lack of apparent empathy for your plight). In either case with these warning signs evident and some time left to change horses if that is indeed what you conclude is necessary, failing to investigate this further right now is a recipe for disaster.
Lawyers are not all created equally; some are unquestionably smarter and more poised and articulate than others, and there is a huge variation in the level of skill and commitment that individuals possess or bring to any particular case or specialty topic.
Certified Family Law Specialists are highly likely to understand the legal complexities of modern divorce, and to be familiar and comfortable with current best practices in the mental health sciences as they relate to individual and family dynamics. Most attorneys lack sufficient interest to bother to undertake the fairly grueling training, education, and testing required for certification as a legal specialist. Although certification as a divorce expert does not guarantee the outcome you desire to achieve, it does stack the odds in your favor - hiring a specialist is more likely to pair you with an experienced legal professional who is at the top of the divorce lawyer bio-sphere. If your attorney is not certified, or even if he is and you sense that his advice is not efficient or it is not making sense to you (or others), it is no sin to discreetly step away, take some breaths, and get reliable and independent feedback.
If you are feeling uneasy about the quality of the legal representation you are receiving, don't ignore the signals. Given what is at stake, why not seek a second legal opinion from a qualified attorney? At worse you may find that your anxiety has been dispelled and that the real problem with you and your lawyer involves a lack of communication or a lack of understanding by one or both of you that can be remedied; at best you may avert a developing train crash before your life and finances are thoroughly wrecked.
We don't have crystal balls, but we all possess intuition and common sense. Use yours!
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!
Thurman W. Arnold III, C.F.L.S.
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| August 18, 2009 |
| I want to hire a NEW ATTORNEY with money my husband was ordered to pay my last lawyer. |
| Posted By Thurman Arnold |
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Q. The court ordered my husband to pay my present attorney $10,000 for legal fees at $500/month. He has made 2 or 3 payments. The court order says the fees are to be paid directly to her. She (my attorney) filed a motion to withdraw, and fired me.
Now I need a new attorney. Can this money be used to pay them instead? Her bills say I owe her $11,000?
Julia. Rancho Cucamonga
A. Family Code section 272 provides, in dealing with court orders that one party pay the other money on account of their legal fees, "(c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the [prior]attorney may enforce the order only if it appears of record that the attorney has given to the former or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10 day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion."
So, in order for your former attorney to be entitled to continue to receive payment she has to have given you notice which is unlikely since few attorneys know about this rule. Effectively, you probably need to demand she give the notice, and then file or have a motion filed within the 10 days to tell the court you cannot continue your case if those fees are not used for your new attorney!
Thurman W. Arnold III
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