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A theory that changed laws

During his period in the appellate court, Justice Donald King was probably the most prolific family law judge in California. He’d been a superior court judge in San Francisco and he wrote scores of family law opinions. And he did something else that was quite extraordinary: Every summer while the appellate court was closed, he would  volunteer to sit pro tem* in the San Francisco Superior Court. Then, he did something even stranger. He told the supervising judge, “I want the worst cases you have. Give me all the cases that no one else wants.” So he started getting all these terrible, highly emotional contested divorce cases.

Justice King had been a superior court judge and so he had a theory about family law. He believed that people generally have more divorce than they have money and when they run out of money they still have lots of divorce left.  At the end of the case, the client hasn’t paid the bill, so the lawyer sues the client for unpaid fees. Now, clients can always think of something the lawyer could have done, should’ve done, failed to do, forgot to do, so the clients respond with a lawsuit for malpractice and suddenly you have all these lawyers and clients litigating. As a result you wind up with lawyers who are so fearful of a lawsuit against them for malpractice, they file every subpoena, serve every document, go through interrogatories and requests for admissions and they build their cases on the basis of “I don’t want to ever be guilty of any kind of malpractice. I’ll do everything I possibly can.”  Thus you have the California Divorce Industry.

When Justice King was a superior court judge, he saw all these lawyers coming in two or three years into a case, with boxes and boxes of receipts and cancelled checks, records and documents, and all this stuff. He began to wonder, what would happen if I could get into the case at the front end, before the lawyers have spent all these hundreds of thousands of dollars on discovery? He started bringing the lawyers in at the beginning of cases and he would say, “Counsel, tell me about your case. What are the facts as you understand them to be? What is your approach? What are you going to demand, what are you going to need, what will help you solve all the problems that you’re facing?”  And he would turn to the other lawyer and he would begin a conversation. Then he’d say, “You know what, let’s just use one accountant. We’ll use a neutral account. Can we pick an accountant that we both know and trust? Why don’t we just use one appraiser?” In this way he started limiting the discovery, managing the discovery, and he was so successful he was settling 70-80% of his cases and having happy clients and happy lawyers as a result.

In the mid-nineties the California Bar Journal published an article about Justice King’s case management theory and that led to the birth of statute 2450. Family Law Code Section 2450 gives fourteen new powers to judges that they don’t otherwise have.  Under 2450 a judge can have short-cause hearings by telephone, they can appoint mediators, it’s just remarkable.  How does it work? Your lawyer files a Case Management Stipulation, a 2450 Stip, and then you agree to see the judge when he’s got some time on his schedule.  Then you get in front of the judge, in private, and you use the judge as a sounding board. It’s almost like a mini trial for free.  I’m a big advocate for 2450 and I believe it needs to be used more.  I’ve talked to all the new judges about it, as well as the guys who’ve been hearing family law cases for years, and they are all in favor of it. They really like the approach.  Click here to read more about family code section 2450.

*pro tem = pro tempore, a latin phrase meaning “for the time being”

The Third Wednesday

Although it may be one of the best kept secrets of the Los Angeles Superior Court, the LACBA/SFVBA-sponsored Third Wednesday Voluntary Settlement Conference Program is designed to turn the misfortune of the current budget crisis into an opportunity to settle cases.  Each family law department in Los Angeles County may assign up to two cases each month to the VSC program, which provides three hours of free mediation on the third Wednesday of each month in the private office of an experienced family law attorney serving as a voluntary settlement officer.

In the event that a case has not been resolved after three hours of free mediation, counsel is encouraged to retain the services of the volunteer mediator to resolve any remaining issues. The program, which commenced in February 2010, had incredible success in March.  Five out of seven assigned cases were completely settled, and a sixth is still engaged in peaceful mediation with a volunteer mediator.

If you’re going through a divorce in Los Angeles County and you’re afraid you’re headed to trial, ask your attorney about having your case assigned to the VSC program.  You’ll be glad you did.

Fair Fighting

We are pleased to announce that we are celebrating our One Year Anniversary as “The Law Collaborative!” Although Ron and Robert have been practicing family law for a sum total of more than fifty years, we are excited to celebrate the First Anniversary of The Law Collaborative, LLP, formed by Ron and Robert with the stated aim of ‘Bringing Peace to the Legal Process.’

As a celebratory token, we offer you some insight on Fighting Fairly.  Is there a such thing?  There is.

The Seven Rules for Fair Fighting

1. No physical violence or verbal/emotional abuse while engaged.

2. No cursing, name calling, or vulgar language.

3. Agree to take turns.  Listen, take notes, and do not interrupt.

4. No lying or exaggeration, as in “You always…,” or “You never…,” or “I’m the only one who ever…”  Such statements are useless, untrue and frustrate problem solving.

5. Use the Time-Out, rather than walking out of an argument. If you need a break because you’re getting too emotional to think clearly and observe the Rules, ask for a break and agree on a time to resume. Maintain civility and decorum at all times.

6. No ultimatums or threats. For example: “This has to stop, or I’m calling your mother about this!” Don’t threaten as leverage to win the argument.

7. No bringing up the past; keep the conversation looking forward.

Remember, the point of Fair Fighting is not to win, but to respectfully discuss issues with your partner until you are able to reach some understanding and achieve a fair solution.

Also, we are very excited to be hosting our first Second Saturday Divorce Workshop for Women this Saturday, May 8th, 2010.  Ronald Supancic, Attorney at Law, will be discussing the options for divorce.  Renee Leff, LMFT, a featured speaker, will be addressing the emotional issues in divorce.  Irene Smith, Certified Divorce Financial Analyst, will be discussing the financial issues within divorce.  The cost of the workshop is only $45.00 if you pre-register, and $50.00 at the door.  Call our toll-free number to register! (888) 852-9961 or email IG@TheLawCollaborative.com.

The Seven Options for Divorce: Number Four

The fourth option for divorce is Arbitration, which is quite different from our first three options.  The Kitchen Table Divorce is casual, creative, quick and inexpensive.  Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise.  Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met.  Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony and witnesses to a trial of fact.

Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.  The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association.  Arbitration can be either voluntary or mandatory and can be either binding or non-binding.  The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.

Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs.  The Los Angeles County Superior Court sponsors an arbitration program and a “Rent-A-Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.  But we’ll talk more about Rent-A-Judge in a later post.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

The Seven Options for Divorce: Number Two

Number two on the list of divorce options is Mediation. You’ve probably heard of mediation. It’s when the couple sits down with a neutral mediator who helps them negotiate the terms of their divorce. The mediator is not an advocate, cannot give legal advice, and ought to advise you to seek independent advice from a lawyer so that you can be sure you know exactly what you’re agreeing to.

The great thing about a mediator is that they can present options, alternatives, and different scenarios.  There’s creativity in mediation.  A mediator will invite you to decide how your divorce is handled and then will help you draw up a deal called a Memorandum of Understanding. Once you have your Memorandum of Understanding, you can take it to an attorney if you want to, or you can have it filed with the Superior Court. If the mediator you hire happens to be a lawyer, you can have your mediator draw up the agreement and file it in court for you.

Interesting Fact: In Los Angeles, the court actually favors consensual dispute resolution. If you come in with a mediation or a collaboration, you go to the top of the list with regard to processing and entering judgments, whereas litigious cases are going to wait six to twelve weeks for the clerks to get to them, because they’re so backed up and under staffed.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation