Archive for March 2019

Eight San Diego Mandatory Settlement Conference Prep Tips

I have learned what works for attorneys preparing for the MSC, and what doesn't. You can benefit from my experience with these eight tips.

I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

I have volunteered as a mandatory settlement conference (MSC) temporary judge in San Diego Superior Court for many years. I’ve also privately negotiated hundreds of settlement conferences. I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

While I’m sure these ideas will work in any court-facilitated settlement program, these are written specifically with the San Diego family law practitioner in mind.

Take the meeting seriously.

Getting scheduled on the mandatory settlement conference calendar in San Diego County can take months. Settlement judges are volunteers and there aren’t enough to go around. A lot goes into assigning and calendaring your case.

Your client expects you to be ready for negotiation. He or she is paying you to prepare. You are doing your client a disservice and insulting the settlement judge if you are ill-prepared by wasting their time and money.

Many times in my role as a volunteer settlement judge, attorneys aren’t taking the meeting seriously. This is a lost opportunity for clients. Help your client find closure without the expense and trauma of litigation. If you still have to proceed to trial, perhaps you can at least solve some issues — the difference between a three-hour set and a three-day trial on the wheel.

Prepare a well-written brief.

When volunteering as a settlement judge, it can be disheartening to receive a flimsy ill-prepared brief full of typos, incorrect names, and out of date citations. It is simply unprofessional and could be malpractice. Your MSC brief needs ALL of the information you would take to trial. It’s poor form to make arguments or claims in the law unsupported by the evidence in your brief.

If documents are required to make your client’s Epstein claim or reimbursement request, you’d better have them attached to your written statement. If you don’t, an experienced attorney may successfully get it excluded when you bring it to trial.

Remember these key pieces of guidance from the MANDATORY SETTLEMENT CONFERENCE GENERAL INFORMATION sheet (form SDSC D-047 – Emphasis Added):

“All parties must be prepared to seriously discuss how they would be willing to settle their case.”

“The brief must include all the information required for a trial brief as set forth in the California Rules of Court, rule 5.394.”

San Diego rules encourage the use of the Mandatory Settlement Conference Brief-Long Cause Hearing Brief-Trial Brief (form SDSC D-241). Follow the form like a checklist to make sure you get the information into your brief you need or construct your brief of a pleading following the same format.

Meet and confer meaningfully before the MSC.

Don’t waste time – time is money in legal matters!

In San Diego, parties are not required to meet and confer before the MSC. But why wouldn’t you try? Maybe you could settle the case before wasting anyone’s time or money. It never hurts to talk about how far apart you might be. You may find more common ground than you thought.

If you can settle without an MSC, do it.

I participated in a conference not long ago where it was clear a simple phone call could have settled everything.  There was no need to put the parties through the expense of an MSC. The briefs showed the attorneys failed to meet and confer. The parties paid a lot of money for their attorneys to prepare and participate when a brief phone call could have done the trick. I scheduled an entire day of billable time to review the briefs and to participate as a settlement judge. Instead of billing their clients to prepare an MSC brief, they could have just prepared the MSA.  Now they are billing their clients for both.

Don’t schedule the MSC if you don’t intend to settle.

At several settlement conferences, it was clear there was never any serious intention to settle anything. The attorneys were punching their card so they could get a trial date. If it is clear a case can’t settle in a mandatory settlement conference, the judge may be willing to skip the MSC and set the case for trial immediately. The court doesn’t want to waste valuable MSC time either.

Be polite and professional.

You shouldn’t need a referee during a settlement conference! Be polite and professional.

Years ago, I was disappointed by the unprofessional behavior of two seasoned attorneys in a conference They refused to speak to each other or to sit at the same table. I even had the two parties come to me together and confide with a longing look on their faces how they didn’t understand why their attorneys refused to settle.  They asked if I could help. I was astonished, but I made the attempt. The attorneys struggled but finally managed to put their clients first and we concluded the case.

How embarrassing. No wonder people hate lawyers.  Do us all a favor.  Check the bad behavior, the grandstanding, and the aggression at the door, and help your client settle.

Prepare your clients for compromise.

Meriam-Webster defines compromise as “to come to agreement by mutual concession.” For there to be a compromise, both parties need to give a little.

Going to court has inherent risks. You may think your client has the mythical “slam-dunk” case. There is no such thing. The case may not go exactly as you thought.  In family law, judges have a lot of latitude and discretion. Help your client understand that the risk of going to trial, even if you think the law supports his or her position.

When two intelligent and experienced attorneys come up with diametrically opposed arguments, one of them has to be wrong! The value of settling includes reduced stress and legal fees, and acts as an insurance policy to minimize risk. Preparing your clients by getting them away from notions of “fair” and “justice” and towards the merits of a good business decision can make all the difference when you get to the settlement conference.

Read also “Why ‘Fair’ is the F-word in Divorce Negotiations

Consider hiring a private settlement conference judge.

You can stipulate to a private settlement conference. Judges are happy to clear up space on the MSC calendar. Your client will enjoy some real benefits:

  • You can select your judge and know he or she is experienced and a good fit for the case.
  • You can make sure your settlement conference is facilitated by someone trained in dispute resolution.
  • Meeting at a mediator’s office for a settlement conference is less formal and less stressful than court.
  • You are not constrained by the three hour time block for an MSC in court. You can take time to come up with a thoughtfully considered agreement.

Read more about private settlement conferences here.


Read also Early Intervention: Why mediation early in a family law case can save a fortune in fees and stress .


Don’t be a pig! Gender bias against a judge will not be tolerated

Cartoon sad pig lawyer animal character in grey costume isolated in white background.

In case you were unsure, it’s probably not a good idea to call your judge a succubus.


Mythological Female Demon Succubus

An interesting case came down from the California Court of Appeal Fourth Appellate District.  It should serve as a warning to any attorney practicing in California.  The underlying case had to do with an appeal of a trial court’s order relating to an employment dispute.  The case is Martinez v. O’Hara, No. G054840 (Cal. Ct. App. 4th. App. Dist. Feb 28, 2019).   The portion of the opinion of most interest to family law attorneys is the section regarding attorney misconduct.

The lesson?  Don’t include gender bias against a judicial officer in your pleadings.

Any manifestation of gender bias on the part of an attorney is misconduct and can get that attorney reported to the bar for discipline.

It’s unusual for me to learn new vocabulary words when I read an appellate opinion.  In this case, the plaintiff’s lawyer used some strange words.  Perhaps it’s time to pull out a dictionary.succubus word in a dictionary. succubus concept.

Apparently, the Notice of Appeal signed by the plaintiff’s attorney contained the obscure word, “succubustic.”  The Court of Appeal provided the definition of “succubus.”  It’s defined as a “demon assuming female form which has sexual intercourse with men in their sleep.” Nice.

Said the Court, “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”  To illustrate their point, the Appellate court reported the offending lawyer to the State Bar.

The Court zeroed in on the following passage in the notice of appeal as particularly offensive:

“Pursuant to Code of Civil Procedure section 904.1 et seq., Plaintiff Fernando Martinez hereby appeals from the lower court’s disgraceful order dated November 30, 2016, as incorporated into a reported judgment dated Febryary 21, 2017, and [as] such, technically appeals from that judgment.  The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to reverse peristalsis unto its four corners.”

[Emphasis added.]

Pomposity in legal writing is not particularly persuasive

Aside from being horribly written, this statement is just stupid. I wonder if counsel even knew what the words “succubustic” or “pseudohermaphroditic” mean. Surely, attorneys ought to know the exact meanings of their big words. Not only did this passage offend the sensibilities of the Court as a demonstration of bias, prejudice or harassment based on gender, but it is simply bad writing.

The court also found that statements in plaintiff’s briefs accusing the “trial court of intentionally refusing to follow the law” and suggesting that the “trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review” were made without any support in the record. As such, these statements also constituted reportable misconduct.

The appellate court aptly wrote in conclusion,

“We further note that many of the words and phrases in the notice of appeal have no place in a court filing.  We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis’ in the notice of appeal.”

The moral of the story? Don’t be a sexist pig

Be careful what you write in your briefs. Insult a judge at your peril. If your pleadings contain words demonstrating gender bias against a judicial officer, you may find yourself on the wrong end of a State Bar ethical complaint.

Read also:

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