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”
