Archive for Courts

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.

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:

New Case – Watch out if asking question in a deposition about a custody evaluation

Early Intervention: Why Mediation Early in a Family Law Case Can Save Money and Stress

I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court.  While I enjoy helping folks through their MSCs, the help is simply too little too late for many people.

Often, the preparation for the MSC is nearly as stressful and costly as preparing for the trial itself for everyone involved including the attorneys, clients, and other professionals who may be involved.

Lawyers need to certify that discovery is complete and prepare elaborate briefs. Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice. The pained and stressed-out expressions on the faces of the parties and counsel at the MSCs I facilitate say it all.

Better Options for Settling Cases: Early Mediation

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

There are many options near the beginning of the case to settle issues, manage discovery concerns, and resolve unnecessary conflict.  Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict. Attorneys benefit from early mediation because it helps them settle the cases with a realistic chance of settling successfully. It frees them up to focus on trials for cases that won’t settle.

Here are some ideas for how you can engage the ADR services of a mediator early in your family law case.

Meet and Confer – On Steroids

Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues. Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls.

Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?

Discovery Management At Lower Cost

Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this takes place whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. As a result, parties can face months or even years of time-consuming, expensive discovery wars.

Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally at much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs. The mediator can help everyone conclude the case with fewer headaches and less stress for the lawyers.  This results in a lower cost for the parties.

Successfully Managing the High Conflict Case

You don't have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay

You don’t have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay

There is a common misconception that people cannot mediate high conflict cases. It’s simply not true.

Most high conflict behavior in divorce cases is based on fear and hurt. That’s because Court proceedings tend to exacerbate and actually encourage high conflict responses. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.

Rather than encouraging conflict including ugly public fights in court, consider short-circuiting conflict with a mediator experienced in high conflict. If the parties learn early how to interact productively, it then makes the rest of the case go more smoothly, and often more quickly.

Use Early Intervention Through Mediation to Resolve Interim Issues

The terribly backlogged family courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. Working with you and your clients in mediation, I can help you resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order. Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more.  Instead of reacting to ongoing problems, people can focus on concluding the case.

Consider a Court-Ordered Family Centered Case Resolution Plan Per Family Code Section 2451

Court ordered family centered case resolution plan under the California Family Code Section 2451 is a valuable tool in your toolkit.

One little-known Family Code provisions involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan. It is described in Family Code Section 2451. Additionally, California Rule of Court 5.83 describes how to implement the plan. Parties can appoint a case manager as part of the plan. They can also apply Code of Civil Procedure Section 639 to appoint the case manager as a discovery referee. Further, Family Code Section 2451 (a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:

“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”

This Family Code section 2451 procedure has been effective in my experience. It can do a lot to reduce costs, and keep the case moving quickly towards settlement.

Because there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early. Call on Weber Dispute Resolution to help. We have the training, skills, and experience to get your family law case past stuck. Our approach serves to support existing relationships with legal counsel, and will preserve the family’s wealth by reducing family conflict. Peace of mind is priceless.

What Does Alternative Dispute Resolution Mean?

options, difference, mediation, questions, answers

The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.

If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?”   Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues.  But, there is a lot of confusion about what ADR practice actually entails.  Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably.  However, these terms could not be more different.

The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral.  They are not there to advocate for or legally advise either party.  Rather, they are there to get the parties to a resolution, or settlement.  However, the powers and abilities that they have depends entirely on which process you choose.

MEDIATION

Mediation is typically what most people think of when they think of staying out of court and reaching an agreement.  A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves.  A mediator does not make any orders or decisions for the parties.  Rather, a mediator facilitates an effective dialogue between the parties.  Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party.  Mediation allows parties to never go to court, because it is a private process outside of court.  Mediation is usually the most informal process of these three options.

ARBITRATION

Arbitration is similar to a trial at court.  However, the arbitrator is the one who makes the decision rather than a public judge.  Each side will present their case to the arbitrator.  They might use the same procedural tools as a court process might require, such as discovery and evidence.  An arbitrator then makes a decision based on each side’s case.  Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.

Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom.  There are two kinds of arbitration – either binding or non-binding.  Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision.  However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.

PRIVATE JUDGING

Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does.  With private judging, parties generally go through the same process as litigation.  This might include procedures like filing a motion at court, but a private judge would determine the case instead.

A private judge is usually much more accessible than a public judge.  This is because private judges are typically experienced family law attorneys, or retired former judges.  Their schedules tend to be more flexible than the impacted calendars of current sitting judges.  Private judges are also able to devote more focus to one case at a time.  With court, a matter may take several months before a court even has time to hear it.  Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.

There are many different options for conflict resolution.  It’s important to know which one suits your personal situation best, as each process has its own pros and cons.  It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice.  He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.

San Diego Attorney Sandra Morris on Why Collaborative Practice Saves Money

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My friend and colleague, Sandra Morris, is an outstanding family law attorney in San Diego and a member of the Collaborative Family Law Group of San Diego.  She recently shared a great article about the cost benefits in choosing Collaborative Practice to do a divorce as opposed to the terrible cost of litigation.  It’s a good read.

My favorite quote from the article: “The economic and time savings in the costs of discovery is enormous. You have saved time, and therefore saved money.”

Here is a link to the article: http://collaborativefamilylawsandiegoblog.com/?p=349

For information about how you can use Collaborative Practice for your divorce or legal dispute, contact Shawn Weber at 858-345-1616 or visit http://www.bravewebermack.com/Family-Law-Overview/Collaborative-Divorce.shtml.

My Fourth Appearance on The Real Estate Radio Hour on ESPN 1700 AM

By Shawn Weber, JD, CLS-F

On April 4, I had another opportunity to go on San Diego ESPN 1700’s Real Estate Radio with my good friend and fellow collaborative divorce practitioner, Justin Reckers, CFP®, CDFA, AIF®.  It was a great opportunity because we had the full hour to ourselves to talk about divorce processes.  I have been a long believer that people facing a divorce need to take control early and decide what process they wish to use to complete their divorce. So many people and attorneys just jump straight to litigation, which for most people, is the the very worst way to transition a family.  It is more expensive and more destructive.

I was pleased that Justin and I had the chance to tell about mediation and collaborative divorce as excellent options for parties to reduce cost, take control of the outcome and transition their families in as healthy a way as possible.

Listen to the whole show here:

The Real Estate Radio Hour on ESPN 1700 AM

 

Shawn Weber, J.D., CLS-F

Justin A. Reckers, CFP®, CDFA™, AIF®

Love and Real Estate: I am in a divorce with my spouse, but I don’t want to sell our house yet because I am worried about the impact selling will have on our kids. What can I do?

By Shawn Weber, CLS-F*

It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:

‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.

Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:

Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.

[Duke at page 155.]

In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code §3801 (a).]) This house is then sold at some future time.

Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code §3801.]

In making this determination, the Court has to consider each of the following factors:

(1) The resident parent’s income.

(2) The availability of spousal support, child support, or both spousal and child support.

(3) Any other sources of funds available to make those payments.

[Cal. Fam. Code §3801(b).]

The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:

(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.

(2) Avoid inadequate insurance coverage.

(3) Prevent deterioration of the condition of the family home.

(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.

[Cal. Fam. Code §3801(c).]

If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:

(1) How long has the child lived in the home?

(2) What is the child’s grade in school?

(3) How close is the residence to the child’s school or daycare?

(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?

(5) What emotional detriment would there be to the child if he/she changed residences?

(6) How close is the house to the custodial parent’s work?

(7) How financially able are the parents to obtain suitable housing?

(8) What tax consequences would be experienced by each party as a result of the deferred sale?

(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.

[Cal. Fam. Code §3802.]

Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.

Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.

One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often we can entangle our emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially—then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.

Other resources regarding deferred home sales:

In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.

In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.

In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.

In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.

For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.