My wonderful brother convinced me to attempt an Iron Man in November of 2009. It looked easy enough while I was cheering for him in the Louisville Ironman race last Labor Day.
Even though I was exhausted from driving around in the 93 degree weather, cheering for the 2,500 participants, and standing in one spot cheering for hours at a time, what they were doing didn't seem all that difficult. After all, we were both exhausted, sweaty, hungry, and having the time of our lives.
So far, I've lost 10 pounds, gotten to know my local gym better than I thought I ever would, realize I need to learn to swim, and bought a really cool, light, bicycle. I've also watched Rocky I several times. . . .
Thursday, January 8, 2009
Sunday, June 22, 2008
Sharing Information with other attorneys
One image of attorneys is that they are a cut-throat bunch, caring little about their clients and less about their competitors. In fact, a great deal of sharing and mentoring goes on in the legal profession, even among competitors -- at least in the family law arena.
The Los Angeles County Bar Association, Family Law Section, has a listserve on which all members may post questions. Surprisingly, most questions are answered rather quickly, and there is often an ongoing discussion for a few hours, or even days, on subjects that are controversial.
By regularly monitoring the discussions, and occasionally pitching in, an attorney keeps his or her skills sharp, gets an insight into unusual or difficult situations that arise, and participates in a community of professionals. This helps to raise the standards within the legal profession and allows attorneys to receive regular feedback on their practices and procedures.
Since participation is entirely voluntary (and one must actually pay to be a member of the Los Angeles County Bar and pay more to join the family law section), the listserve is another area of life, and the law, that attorneys can be proud of.
The Los Angeles County Bar Association, Family Law Section, has a listserve on which all members may post questions. Surprisingly, most questions are answered rather quickly, and there is often an ongoing discussion for a few hours, or even days, on subjects that are controversial.
By regularly monitoring the discussions, and occasionally pitching in, an attorney keeps his or her skills sharp, gets an insight into unusual or difficult situations that arise, and participates in a community of professionals. This helps to raise the standards within the legal profession and allows attorneys to receive regular feedback on their practices and procedures.
Since participation is entirely voluntary (and one must actually pay to be a member of the Los Angeles County Bar and pay more to join the family law section), the listserve is another area of life, and the law, that attorneys can be proud of.
Sunday, May 25, 2008
Will Voters Provoke Supreme Court to Eliminate Marriage?
The California Supreme Court has held that the California Constitution is violated when the State refuses to recognize "same gender" marriages. Actually, the Court got a little confused, since it talks about discrimination based on "sexual preference." As anyone who has been paying attention should know, there are plenty of "gay" men and women who are ALREADY married - to someone of the opposite gender.
Whenever I write a brief, I know my client is right whenever I can write a very short brief, right to the point. The Supreme Court rambled on for 121 pages. This tells me that the Court was unsure of itself and felt very strongly that it would have to "justify" its decision.
Now, suppose that the voters of California adopt an amendment to the Constitution stating that "marriage" can only be defined as a certain type of relationship between two people of different gender. Will the Supreme Court have the courage of its convictions and, based on its Equal Protection arguments, strike down all marriage laws. Remember, there are two ways to resolve a situation where one group is being "unfairly" benefited - extend the benefits to all, or strike down the benefits. Presumably, were "marriage" once again defined as it has been for thousands of years, the Supreme Court could strike down all laws that favor marriage based on the logic contained in its 121-page decision.
California has a system of Domestic Partnership registration, in which domestic partners are given the IDENTICAL rights as spouses. Legally, the California Supreme Court decision therefore adds no rights to those who seek a long-term committed relationship sanctioned by the State to someone of their own gender.
What the Supreme Court is allegedly concerned with is what we "label" the relationship. According to the Court, it is simply intolerable that we use two different words to describe committed relationships between folks of the same gender and folks of different genders. The Court hypothesizes that young children might suffer stigma if they are unable to tell classmates that their parents are married.
This is a clever argument, since one of the primary purposes, if not THE primary purpose, of marriage is to create a stable, long-term relationship where the children can be raised by two parents, both of whom make sacrifices for the good of the family, and the children. Same-gendered folks will have children either by adoption, by surrogates, or by relationships with folks of different gender (both before, during, and after the relationship with the person of the same gender). But, statistically speaking, they are far, far less likely to do so than people of opposite genders.
Rather than suggest that children be taught tolerance, or that the children be taught that domestic partnerships give same-gendered parents all the same rights and obligations as spouses, or that same-gendered parents consider these issues prior to having children, or teach their children in their own way how to deal with the subject, the Supreme Court decides to "protect" children by extending the label "marriage" to people to whom it has never been applied before. If we just change the definition of "marriage" the little children will not feel stigmatized.
Unfortunately, a relationship between differently gendered people is different than one between same gendered people, especially with regard to the likelihood of having children. Over the last several eons, society has apparently found that giving special recognition to families composed of a man and a woman is a good way to encourage people to have children, and to properly care for the children.
Whenever one group is favored, this comes with a cost. For example, we may give tax credits to a married couple (or take away tax benefits) to encourage or discourage certain behavior. If the primary reason we are doing so is to encourage people to have children and raise them well, we try to minimize the unnecessary costs without causing too many unforeseen consequences that are detrimental. Not all families will have children, not all will respond in the same way to the tax credit, or tax penalty. We can only afford so much in taxes. So, we give a tax credit, but we don't say that married people pay zero taxes. It would simply be too expensive.
When we state that a spouse can be covered by the other spouse's health, auto or life insurance, this comes with a certain cost - either to the insurance company or to the unmarried in society, who end up sharing the cost.
If we change the mix of people who are likely to have children who receive such benefits, this changes the cost-benefit ratio of the public policy trying to help children by helping married people. It may, or may not, be affordable or desirable to continue offering the benefit. That is, if 80% of all married folks end up having children, we might be able to tolerate the expense created by the other 20%, since this might still be the best way to target children, and encourage people to be married when they have children. But if only 20%, or 50%, or even 60% of married folks have children, we might not be able to tolerate that expense.
In the first scenario, 80 cents of every dollar of benefit helps the target group. In the second scenario only 20, 50 or 60% of every dollar of benefit helps the target group. This is true when married people just stop having children, and it is also true if we redefine marriage to include a large population that is unlikely to have children.
If we want everyone to have group health insurance, instead of a cost we might see the broadening of the definition of marriage to be a good thing, even worth the cost of having to redesign literally billions of forms and sales pitches, and conventions wherein if we know a person is married, we know the gender of the spouse. Advertisers utilize this to target advertising. If the cost-benefit of doing so changes, advertisers may choose not to advertise. This means a lack of benefit for the people who are already married.
There are no doubt millions of conventions, assumptions, business practices, and financial arrangements currently based on the idea that marriage is a relationship between a man and a woman. When and how we change those conventions, assumptions, and practices should be up to the people of California. We may want to try it on for size, fine-tune our system of incentives and disincentives for marriage and child-rearing, change our mind a few times until we can recalibrate marriage.
This is a matter for our body politic and Legislature, where the public policy priorities are pitted against one another in the grand compromise that gives rise to our laws. The Supreme Court is not well-positioned to make these evolving decisions.
Before the Supreme Court ruled, the Legislature had decided that enough people want to enter into marriage-like relationships with someone of the same gender to warrant setting up a system by which they can easily do so - Domestic Partnerships. While granting partners the same rights and obligations as spouses, the law also allowed the Legislature to tinker with public policy. For example, the Domestic Partnership Law did not allow people of opposite gender to become domestic partners unless they were 65 years old or older. The Legislature apparently thought that the trade-offs involved did not warrant extending Domestic Partnerships to all people of opposite genders - perhaps out of fear that more people would seek to gain the benefits of having a spouse without making the types of commitments that we normally associate with marriage, thereby overburdening our system of encouraging marriage. This is what Legislatures are supposed to do.
The majority of the Supreme Court apparently believes that we should think of relationships between people of the opposite gender the same as between people of the same gender. In order to try to force us to do so, it is now in the business of redefining language.
This is a very, very big change that will have enormous cultural, political, social and economic ramifications. My own view is that Judicial Fiat is not the best way to make public policy of this type.
No one can know at this time how many gay married couples will be raising children, whether more people will opt for marriage than opted for Domestic Partnerships, what those marriages will look like as compared to opposite-gendered marriages, and how this will affect our willingness to encourage marriage. We do not know whether this will strengthen society (perhaps leading to more marriages, more stable relationships that encourage the type of long-term sacrifice that benefits society), weaken our ability to promote child-friendly policy at a reasonable cost, or change absolutely nothing.
Whenever I write a brief, I know my client is right whenever I can write a very short brief, right to the point. The Supreme Court rambled on for 121 pages. This tells me that the Court was unsure of itself and felt very strongly that it would have to "justify" its decision.
Now, suppose that the voters of California adopt an amendment to the Constitution stating that "marriage" can only be defined as a certain type of relationship between two people of different gender. Will the Supreme Court have the courage of its convictions and, based on its Equal Protection arguments, strike down all marriage laws. Remember, there are two ways to resolve a situation where one group is being "unfairly" benefited - extend the benefits to all, or strike down the benefits. Presumably, were "marriage" once again defined as it has been for thousands of years, the Supreme Court could strike down all laws that favor marriage based on the logic contained in its 121-page decision.
California has a system of Domestic Partnership registration, in which domestic partners are given the IDENTICAL rights as spouses. Legally, the California Supreme Court decision therefore adds no rights to those who seek a long-term committed relationship sanctioned by the State to someone of their own gender.
What the Supreme Court is allegedly concerned with is what we "label" the relationship. According to the Court, it is simply intolerable that we use two different words to describe committed relationships between folks of the same gender and folks of different genders. The Court hypothesizes that young children might suffer stigma if they are unable to tell classmates that their parents are married.
This is a clever argument, since one of the primary purposes, if not THE primary purpose, of marriage is to create a stable, long-term relationship where the children can be raised by two parents, both of whom make sacrifices for the good of the family, and the children. Same-gendered folks will have children either by adoption, by surrogates, or by relationships with folks of different gender (both before, during, and after the relationship with the person of the same gender). But, statistically speaking, they are far, far less likely to do so than people of opposite genders.
Rather than suggest that children be taught tolerance, or that the children be taught that domestic partnerships give same-gendered parents all the same rights and obligations as spouses, or that same-gendered parents consider these issues prior to having children, or teach their children in their own way how to deal with the subject, the Supreme Court decides to "protect" children by extending the label "marriage" to people to whom it has never been applied before. If we just change the definition of "marriage" the little children will not feel stigmatized.
Unfortunately, a relationship between differently gendered people is different than one between same gendered people, especially with regard to the likelihood of having children. Over the last several eons, society has apparently found that giving special recognition to families composed of a man and a woman is a good way to encourage people to have children, and to properly care for the children.
Whenever one group is favored, this comes with a cost. For example, we may give tax credits to a married couple (or take away tax benefits) to encourage or discourage certain behavior. If the primary reason we are doing so is to encourage people to have children and raise them well, we try to minimize the unnecessary costs without causing too many unforeseen consequences that are detrimental. Not all families will have children, not all will respond in the same way to the tax credit, or tax penalty. We can only afford so much in taxes. So, we give a tax credit, but we don't say that married people pay zero taxes. It would simply be too expensive.
When we state that a spouse can be covered by the other spouse's health, auto or life insurance, this comes with a certain cost - either to the insurance company or to the unmarried in society, who end up sharing the cost.
If we change the mix of people who are likely to have children who receive such benefits, this changes the cost-benefit ratio of the public policy trying to help children by helping married people. It may, or may not, be affordable or desirable to continue offering the benefit. That is, if 80% of all married folks end up having children, we might be able to tolerate the expense created by the other 20%, since this might still be the best way to target children, and encourage people to be married when they have children. But if only 20%, or 50%, or even 60% of married folks have children, we might not be able to tolerate that expense.
In the first scenario, 80 cents of every dollar of benefit helps the target group. In the second scenario only 20, 50 or 60% of every dollar of benefit helps the target group. This is true when married people just stop having children, and it is also true if we redefine marriage to include a large population that is unlikely to have children.
If we want everyone to have group health insurance, instead of a cost we might see the broadening of the definition of marriage to be a good thing, even worth the cost of having to redesign literally billions of forms and sales pitches, and conventions wherein if we know a person is married, we know the gender of the spouse. Advertisers utilize this to target advertising. If the cost-benefit of doing so changes, advertisers may choose not to advertise. This means a lack of benefit for the people who are already married.
There are no doubt millions of conventions, assumptions, business practices, and financial arrangements currently based on the idea that marriage is a relationship between a man and a woman. When and how we change those conventions, assumptions, and practices should be up to the people of California. We may want to try it on for size, fine-tune our system of incentives and disincentives for marriage and child-rearing, change our mind a few times until we can recalibrate marriage.
This is a matter for our body politic and Legislature, where the public policy priorities are pitted against one another in the grand compromise that gives rise to our laws. The Supreme Court is not well-positioned to make these evolving decisions.
Before the Supreme Court ruled, the Legislature had decided that enough people want to enter into marriage-like relationships with someone of the same gender to warrant setting up a system by which they can easily do so - Domestic Partnerships. While granting partners the same rights and obligations as spouses, the law also allowed the Legislature to tinker with public policy. For example, the Domestic Partnership Law did not allow people of opposite gender to become domestic partners unless they were 65 years old or older. The Legislature apparently thought that the trade-offs involved did not warrant extending Domestic Partnerships to all people of opposite genders - perhaps out of fear that more people would seek to gain the benefits of having a spouse without making the types of commitments that we normally associate with marriage, thereby overburdening our system of encouraging marriage. This is what Legislatures are supposed to do.
The majority of the Supreme Court apparently believes that we should think of relationships between people of the opposite gender the same as between people of the same gender. In order to try to force us to do so, it is now in the business of redefining language.
This is a very, very big change that will have enormous cultural, political, social and economic ramifications. My own view is that Judicial Fiat is not the best way to make public policy of this type.
No one can know at this time how many gay married couples will be raising children, whether more people will opt for marriage than opted for Domestic Partnerships, what those marriages will look like as compared to opposite-gendered marriages, and how this will affect our willingness to encourage marriage. We do not know whether this will strengthen society (perhaps leading to more marriages, more stable relationships that encourage the type of long-term sacrifice that benefits society), weaken our ability to promote child-friendly policy at a reasonable cost, or change absolutely nothing.
Thursday, December 6, 2007
Divorce Mediations Group
 |
DivorceMediations |
Visit this group |
A group for mediators of divorce. Any divorce mediator can become a member and add posts. Those interested finding a mediator are invited to view the group's posts, and you can learn how to contact a number of divorce mediators.
Monday, October 22, 2007
Cycling from LA to San Diego
Last weekend, my older brother and I rode our bicycles from my office in Arcadia, California to La Jolla, California - about 125 miles.Tim, an Estate Planning attorney in Tallahassee, Florida, with a J.D. from the Harvard School of Law, has been running marathons, triathalons, and Adventure Races for years. He is even looking to participate in an Iron Man race in the next 12 months.
San Gabriel River near Duarte, CA
Huntington Beach, CA - pier
By contrast, I ran my first Olympic Distance triathalon earlier this year, and was fortunate to even finish. I just starting cycling about a year ago, and don't really have any particular training schedule or technique. Although I knew that I could complete the distance, I was worried that I would not be able to keep up with my brother.
Laguna Beach, CA
San Onofre, CA
As it turned out, we had a great time, and kept pace with each other throughout the ride. The primary reason we were able to maintain a similar pace was that I rode a street bike, while he rode my spare Mountain bike. The street bike made the ride far easier for me than it did for my brother.
Camp Pendleton, CA
Oceanside, CA - pier
Despite the fact that he is the more experienced rider, the better trained athlete, and much stronger than I am, my bicycle was far superior to his for this particular task.
Also, even though my brother is the more experienced rider, I had previously ridden to San Clemente, about half way to La Jolla, and knew what to expect. I had the right tool for the job, more experience at the specific task at hand, and so was able to lead the way and keep pace with a superior athlete.
La Jolla, CA
Sleeping seals at La Jolla, CA
In the same way, parents who hire the right lawyer with expertise and experience in family law can keep pace with the other parent in the marathon we experience in raising children.
Wednesday, October 10, 2007
Good Folks at Orange County Dept of Chld Support Services
I had the good fortune of spending an afternoon in Department L-52 of the Orange County Superior Court the other day. Most of the afternoon was spent waiting for a commissioner to arrive (ours was on vacation so the others were doing double-duty in their own courtroom and then in ours when they finished their calendar).
I observed three top child support attorneys interacting all day with various attorneys, parents, and each other. They uniformly showed courtesy and respect for all concerned, a good sense of humor and a positive outlook. They were professional, respected all arguments, and were quick to grasp the nuances of various issues and positions.
After our matter had been resolved, I ran into another DCSS attorney who regularly works in Department L-51. This attorney is also smart, professional, courteous, with a great presence and a relaxed, positive countenance.
With so many great people showing their best to the public when no one was looking (there was no judge present for most of the afternoon), its clear that somebody over there is doing a lot right. It appears that the culture of the Orange County DCSS, or at least the group I dealt with, is healthy and positive.
I observed three top child support attorneys interacting all day with various attorneys, parents, and each other. They uniformly showed courtesy and respect for all concerned, a good sense of humor and a positive outlook. They were professional, respected all arguments, and were quick to grasp the nuances of various issues and positions.
After our matter had been resolved, I ran into another DCSS attorney who regularly works in Department L-51. This attorney is also smart, professional, courteous, with a great presence and a relaxed, positive countenance.
With so many great people showing their best to the public when no one was looking (there was no judge present for most of the afternoon), its clear that somebody over there is doing a lot right. It appears that the culture of the Orange County DCSS, or at least the group I dealt with, is healthy and positive.
Sunday, September 23, 2007
Mediation Basics
Mediation is an informal process in which the participants, and not a judge or arbitrator, ultimately determine the outcome.
Know your mediator. The neutral mediator plays an important role in any mediation, and must disclose any prior dealings or relationships of any type with the parties or their attorneys. One should always ask the mediator about any dealings with the attorneys and parties.
Know the Participants. The mediator should ask everyone present to identify him or herself and explain why they are there. This may include principals, attorneys, witnesses, insurance adjustors, those providing moral or other support. Anyone other than the disputants and their attorneys will be excused, with witnesses subject to recall if needed.
The name, address, and contact information for each person should be obtained by the mediator.
The mediation process.
Mediation is an informal process, not a court hearing. The contents of case files, mediators notes, statements made during the mediation, and all documents and communications relating to the mediation are confidential, pursuant to sections 1115 - 1128 of the California Evidence Code.
The role of the mediator is to set the tone, facilitate direct communication, help define the issues, clarify expectations, explore feelings and help the parties to define their needs and develop alternatives for resolution of the dispute. The mediator does not decide the outcome, place blame, or determine liability.
Witnesses and other professionals will be excused after the opening statement and participate only as agreed by the parties.
Caucus. The mediator or the parties may determine that a separate interview or caucus is necessary or helpful - that is, the one party and his or her attorney meet separately with the mediator, outside the hearing of the other party and attorney. Matters discussed in caucus may be held confidentially, or shared, depending on the desires of the party.
Attorneys. Although parties may have an attorney, they are not required to do so. Attorneys are present to advise their clients, not to conduct discovery. A party may ask for a recess in the mediation at any time to discuss something with his or her attorney. The parties may also write down an agreement and wait to sign the agreement until his or her own attorney has seen it.
Voluntary Process. Mediation is a voluntary process. The mediator has no power to enforce any agreements or impose any decision upon the parties. Many consider mediation to be primarily a good faith negotiation whereby the parties agree to disclose fully any and all facts or information pertinent to the dispute.
Agreements. An agreement reached at mediation is binding if both parties are of legal age, they understand what they have agreed to, and neither party was forced to agree. The language in the mediation agreement should specify that the mediation is enforceable, and that the agreement itself is not confidential. Without the proper language in the agreement, both sides are on the honor system with regard to carrying out the agreement.
Initial Statements. Where appropriate, the mediator will advise each participant that they may make an opening statement. Neither party shall interrupt the other's opening statement.
Other Ground Rules. The mediator should make known at the outset any and all ground rules for the mediation.
Know your mediator. The neutral mediator plays an important role in any mediation, and must disclose any prior dealings or relationships of any type with the parties or their attorneys. One should always ask the mediator about any dealings with the attorneys and parties.
Know the Participants. The mediator should ask everyone present to identify him or herself and explain why they are there. This may include principals, attorneys, witnesses, insurance adjustors, those providing moral or other support. Anyone other than the disputants and their attorneys will be excused, with witnesses subject to recall if needed.
The name, address, and contact information for each person should be obtained by the mediator.
The mediation process.
Mediation is an informal process, not a court hearing. The contents of case files, mediators notes, statements made during the mediation, and all documents and communications relating to the mediation are confidential, pursuant to sections 1115 - 1128 of the California Evidence Code.
The role of the mediator is to set the tone, facilitate direct communication, help define the issues, clarify expectations, explore feelings and help the parties to define their needs and develop alternatives for resolution of the dispute. The mediator does not decide the outcome, place blame, or determine liability.
Witnesses and other professionals will be excused after the opening statement and participate only as agreed by the parties.
Caucus. The mediator or the parties may determine that a separate interview or caucus is necessary or helpful - that is, the one party and his or her attorney meet separately with the mediator, outside the hearing of the other party and attorney. Matters discussed in caucus may be held confidentially, or shared, depending on the desires of the party.
Attorneys. Although parties may have an attorney, they are not required to do so. Attorneys are present to advise their clients, not to conduct discovery. A party may ask for a recess in the mediation at any time to discuss something with his or her attorney. The parties may also write down an agreement and wait to sign the agreement until his or her own attorney has seen it.
Voluntary Process. Mediation is a voluntary process. The mediator has no power to enforce any agreements or impose any decision upon the parties. Many consider mediation to be primarily a good faith negotiation whereby the parties agree to disclose fully any and all facts or information pertinent to the dispute.
Agreements. An agreement reached at mediation is binding if both parties are of legal age, they understand what they have agreed to, and neither party was forced to agree. The language in the mediation agreement should specify that the mediation is enforceable, and that the agreement itself is not confidential. Without the proper language in the agreement, both sides are on the honor system with regard to carrying out the agreement.
Initial Statements. Where appropriate, the mediator will advise each participant that they may make an opening statement. Neither party shall interrupt the other's opening statement.
Other Ground Rules. The mediator should make known at the outset any and all ground rules for the mediation.
Tuesday, September 18, 2007
Abraham Lincoln got it right when it comes to lawyers
In my opinion, Abraham Lincoln got it right 150 years ago:
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
-- Abraham Lincoln
Lincoln, Notes for a Law Lecture, Abraham Lincoln Online, Speeches and Writings (1850), Source: The Collected Works of Abraham Lincoln, Vol. 2, Basler, ed.
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
-- Abraham Lincoln
Lincoln, Notes for a Law Lecture, Abraham Lincoln Online, Speeches and Writings (1850), Source: The Collected Works of Abraham Lincoln, Vol. 2, Basler, ed.
Saturday, September 15, 2007
same old same old from attorney, my client a pleasant surprise
A few days after we filed and served the four motions to compel discovery, the attorney who had in open court promised responses two weeks ago faxed a letter to me.
In the letter, the attorney stated that I had not conferred with the attorney about the failure to respond - apparently forgetting the discussion at the court in front of the judge. Then the attorney threatened to file a motion requesting sanctions against me for filing the motion requesting answers to discovery prior to the quasi-criminal contempt trial.
The letter also demands that I take the motions off calendar immediately based on the promise to get the discovery responses to me in two weeks.
So, then, I ask myself, what would the ethical and reasonable attorney do in response to such a letter?
Should I tell the attorney that a separate motion would not be necessary - the judge can issue sanctions against me while hearing my own motions if I have behaved badly in filing the motions. While file a motion when you can bring the matter up in your opposition papers? Will it save my client time and money responding to yet another separate motion if I just help the opposition out by explaining how to properly raise the issue?
Should I remind the attorney again that we did discuss the discovery in front of the judge while on the record? Will this cause the attorney to realize that opposing the motions is fruitless, resulting in a stipulation that the opposing party will pay my legal fees incurred (about $1,600 so far on these motions) and timely discovery responses, without having to go to court and argue the motion?
Should I inform the attorney of the appellate decisions stating that there is no need to meet and confer where discovery is overdue - that is, there's nothing to confer about. Will this cause the attorney to "give up" opposing the motions, convince the client to pay the fees incurred, and give me complete discovery responses?
In the end, I decide to write a letter merely stating that the letter is factually and legally inaccurate, and reminding the attorney that I have already offered to take the motions off calendar if I receive timely responses and a payment of fees incurred to date on the motions. In effect, I draft a letter that I think the judge or any attorney familiar with the discovery process will understand, but if the attorney truly is ignorant and can't recall discussing the matter, the attorney will miss. In a way, I am testing the good faith of the attorney.
This is causing my client's attorney's fees to skyrocket, and one might think my client would be upset (the client is very upset) and that the client would stop cooperating with the other parent wherever possible.
I am so proud of my client! Since filing the contempt, the client has bent over backwards to accommodate the other parent - when the other parent went on vacation and couldn't show up at the designated place and time for visitation, my client allowed the other party to pick up the child the next day without so much as a peep of complaint. It would have been easy to insist that I file a contempt motion, at least obtain a police report (remember, my client is supposed to go to the police station for the visitation exchange) showing the client was not there to pick up the child. Must have been a superhuman effort to avoid even complaining about it.
Seeing the wonderful good faith of my client, the ability to place the needs of the child ahead of the emotional needs to strike back at the other party, I am proud to be an attorney, and proud to be representing such a person.
It makes me proud to be able to shield my client from some of the irrational and unreasonable behavior of the other party and that party's attorney.
In the letter, the attorney stated that I had not conferred with the attorney about the failure to respond - apparently forgetting the discussion at the court in front of the judge. Then the attorney threatened to file a motion requesting sanctions against me for filing the motion requesting answers to discovery prior to the quasi-criminal contempt trial.
The letter also demands that I take the motions off calendar immediately based on the promise to get the discovery responses to me in two weeks.
So, then, I ask myself, what would the ethical and reasonable attorney do in response to such a letter?
Should I tell the attorney that a separate motion would not be necessary - the judge can issue sanctions against me while hearing my own motions if I have behaved badly in filing the motions. While file a motion when you can bring the matter up in your opposition papers? Will it save my client time and money responding to yet another separate motion if I just help the opposition out by explaining how to properly raise the issue?
Should I remind the attorney again that we did discuss the discovery in front of the judge while on the record? Will this cause the attorney to realize that opposing the motions is fruitless, resulting in a stipulation that the opposing party will pay my legal fees incurred (about $1,600 so far on these motions) and timely discovery responses, without having to go to court and argue the motion?
Should I inform the attorney of the appellate decisions stating that there is no need to meet and confer where discovery is overdue - that is, there's nothing to confer about. Will this cause the attorney to "give up" opposing the motions, convince the client to pay the fees incurred, and give me complete discovery responses?
In the end, I decide to write a letter merely stating that the letter is factually and legally inaccurate, and reminding the attorney that I have already offered to take the motions off calendar if I receive timely responses and a payment of fees incurred to date on the motions. In effect, I draft a letter that I think the judge or any attorney familiar with the discovery process will understand, but if the attorney truly is ignorant and can't recall discussing the matter, the attorney will miss. In a way, I am testing the good faith of the attorney.
This is causing my client's attorney's fees to skyrocket, and one might think my client would be upset (the client is very upset) and that the client would stop cooperating with the other parent wherever possible.
I am so proud of my client! Since filing the contempt, the client has bent over backwards to accommodate the other parent - when the other parent went on vacation and couldn't show up at the designated place and time for visitation, my client allowed the other party to pick up the child the next day without so much as a peep of complaint. It would have been easy to insist that I file a contempt motion, at least obtain a police report (remember, my client is supposed to go to the police station for the visitation exchange) showing the client was not there to pick up the child. Must have been a superhuman effort to avoid even complaining about it.
Seeing the wonderful good faith of my client, the ability to place the needs of the child ahead of the emotional needs to strike back at the other party, I am proud to be an attorney, and proud to be representing such a person.
It makes me proud to be able to shield my client from some of the irrational and unreasonable behavior of the other party and that party's attorney.
Tuesday, September 11, 2007
can't teach an old dog new tricks
Remember the attorney who supposedly wants to get things moving for a custody evaluation but then files a contempt bringing the whole process to a stop?
After the contempt was filed my office served by mail four sets of discovery - requests for admissions, form interrogatories (General), special interrogatories, and requests for the production of documents.
Last time I was in court while my client was pleading not guilty to the contempt, I specifically requested that the court delay the arraignment so that discovery responses could first be reviewed. The attorney stated in open court that the discovery responses would be out the following day - now two weeks ago.
No responses were received, so we had to file four motions to compel and/or deem matters admitted. The earliest day I could get into court is also the date the trial on the contempt is scheduled. Chances are, the trial will be continued, further dragging the whole process out - because opposing counsel refuses to cooperate with discovery.
This is especially stupid for opposing counsel to do since I already have filed a motion requesting sanctions based, in part, on the fact that all of my offers of settlement, compromise, easier ways to do things, etc. have been ignored - not turned down, just completely ignored. So, while that motion is on calendar, what does the attorney do with regard to my discovery requests - ignore them, forcing me to file another motion requesting sanctions.
The question is, why would the client put up with this?
After the contempt was filed my office served by mail four sets of discovery - requests for admissions, form interrogatories (General), special interrogatories, and requests for the production of documents.
Last time I was in court while my client was pleading not guilty to the contempt, I specifically requested that the court delay the arraignment so that discovery responses could first be reviewed. The attorney stated in open court that the discovery responses would be out the following day - now two weeks ago.
No responses were received, so we had to file four motions to compel and/or deem matters admitted. The earliest day I could get into court is also the date the trial on the contempt is scheduled. Chances are, the trial will be continued, further dragging the whole process out - because opposing counsel refuses to cooperate with discovery.
This is especially stupid for opposing counsel to do since I already have filed a motion requesting sanctions based, in part, on the fact that all of my offers of settlement, compromise, easier ways to do things, etc. have been ignored - not turned down, just completely ignored. So, while that motion is on calendar, what does the attorney do with regard to my discovery requests - ignore them, forcing me to file another motion requesting sanctions.
The question is, why would the client put up with this?
Subscribe to:
Posts (Atom)
