Posted by: shafaelaw | February 21, 2010

Are You In… Or Do You Want Out?

Oftentimes, in a landlord-tenant case, the most important question a lawyer can ask his or her tenant client is for the client to state in simple terms the client’s overarching goal. Within the context of Landlord-Tenant disputes, that question posed to tenant clients is often, “Do you want to remain living in your current living situation or would you like to be released from your obligations, if any?” It sounds simple enough. However, commonly the tenant gets so deeply involved in his or her dispute with the landlord that the forest gets lost for the trees.

Let’s face it, tenants enter any landlord-tenant dispute with considerably less leverage than the landlord in terms of bargaining chips. The subject of the dispute is the tenant’s living quarters, not the landlord’s. Should the tenant become evicted, the tenant lost her house while the landlord simply needs to fill a vacant rental unit. Unless the tenant lives in one of the “rent control” jurisdictions around the state (e.g., San Francisco, Oakland, Santa Monica, etc.) the tenant does not have many tools in her toolbox in order to compel any sympathy (i.e., action) from the landlord. Thus, it is imperative at the outset of any conflict to determine if the current housing arrangement is even something the tenant considers to continue.

If the tenant wants to stay in her current position (e.g., her building is close to work, this conflict has a low likelihood of repeating, the lease term is about to expire, etc.) then all strategy should be focused toward somehow settling with the landlord with the least amount of collateral damage (i.e., no litigation). If the tenant wants out of there by any and all means, then the lawyer should strap on his or her helmet and prepare for battle in order to secure the tenant’s release from any obligation she or he may have to the landlord.

Again, this may seem elementary, but a good discussion with the tenant client at the outset of representation allows the lawyer and client to be on the same page with respect to strategy and approach, not to mention costs.

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Posted in Landlord-Tenant, Law | Tags: , , ,

Posted by: shafaelaw | October 21, 2009

(S)He Who Made It Gets Visitation

Recently I have been working on some custody/visitation cases that have similar fact patterns. Biological mother (M) was dating biological father (F). F gets M pregnant and they decide to have the child. Before getting married, F decides to leave M and the child, either before the child is born or shortly thereafter. M moves on and finds a new boyfriend (BF) who then becomes model dad and super boyfriend. In the meantime F becomes a suspect fellow and comes in and out of M and Child’s lives, usually creating a few dramatic episodes which may have lead to altercations between F and BF. Now that Child is a toddler, F wants visitation rights.

More likely than not, M and BF walk into a lawyer’s office with the papers asking for a custody/visitation hearing that BF served on M. M and BF have had enough of F’s antics and want to get him out of their lives. Here’s where the lawyer attempts to explain all the things that M and BF did not want to hear, let alone pay someone to hear.

Assuming F is in fact the biological father, he’s not going anywhere. Courts are very reluctant to prohibit a biological parent from regular, continuous contact with his or her child. Unless there is a history or allegations of sexual abuse, domestic violence, or general risk to the child’s well-being, courts believe a child is best raised with contact with both biological parents.

“But, you don’t understand Mr. Lawyer… F is a real a-hole, he’s never been around for Child, and Child isn’t happy whenever he visits.” Sorry, without more showing that child is in danger, the court may elect to award F visitation, or in the least, supervised visitation. F will likely be awarded some kind of visitation.

“But, you don’t understand Mr. Lawyer… F threatened to take child away from us and he’s only out to make our lives a nightmare. We have 34 friends who are willing to testify to the same.” Same deal. No dice. Guess what, F will have 35 friends saying how much he loves his child and M and BF won’t let him see her.

What’s the solution, then?

Most counties provide for mediation before any custody or visitation hearing. My recommendation is usually to work out a visitation plan that is comfortable for M and BF and that F will agree to. Instead of going into the mediation with “F U” printed on your shirt, go into it accepting the fact that F will have some sort of visitation. Remember, the courts are not interested in differences, petty or not, between the parents. The courts are ONLY interested in the best interest of the child. Going into the proceedings with the intention of showing how terrible of a parent F is may backfire and come off as M and BF preventing F access to his child. By agreeing to a schedule, it will be apparent to the court how responsible F is by whether or not he sticks to the schedule. Plus, M and BF will gain favor with the court for cooperating and being mature. If F is as big of an a-hole as M and BF make him out to be, he will likely fail at upholding the schedule anyway. That’s when the best interest of the child are not being honored and the court will surely see this.

This is all under the assumption that F is the biological father. If there is ANY chance he is not, then a parentage determination may be requested to prove that F is in fact the biological father. If he is not, then and only then do M and BF have a good chance of “getting rid of” F.

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Posted in Family, Law | Tags: , , ,

Posted by: shafaelaw | October 12, 2009

Ensure Insurance

Not many people are aware (including practitioners) that California attorneys are not required to have malpractice insurance in order to practice law in this state. However, last week, the California Supreme Court adopted a new rule (Rule 3-410) requiring lawyers that do not have malpractice insurance to disclose that fact in writing to their clients. (source) Discussions for such a rule have been brewing since 2007.

It’s tough to say what this will mean for practitioners. It comes down to how clients react when they receive a disclosure in writing that his/her lawyer is not insured for malpractice. I have certainly hired professionals in the past without verifying that they are insured. However, had I received a written disclosure that he/she is not insured I may have felt alarmed enough to question the disclosure in the first place. Indirectly, this disclosure rule will likely lead to many uninsured lawyers purchasing the minimum policy available in order to comply with the disclosure rule. Buying a policy for a couple hundred dollars a year is far cheaper than risking the loss of one client.

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Posted by: shafaelaw | September 17, 2009

Keep up with the Jones’, please

A significant part of practicing law in state court in California is keeping track of all the rules, where they intersect, where they refer to each other, and where they apply, if at all. Everything from federal law to state law to California Rules of Court to local ordinances apply. One tiny set of rules, though, plays a particularly integral part: local rules. Different counties prefer slightly different procedures from each other. Some have local forms they want parties to use and some require certain information before accepting a filing. It really helps when counties have a clear set of local rules, properly indexed, and available online. Most counties do.

Today I went down to Alameda County Superior Court in Oakland to file a request for default, an accompanying declaration, and a default judgment in an unlawful detainer case. I don’t practice too often in Alameda County, so I wanted to be sure I was complying with local rules when requesting a default judgment. I couldn’t find anything in the online version of their local rules that would indicate any variance from typical procedure. I called the clerk’s office to make sure I was reading the rules right. The clerk on the phone seemed like she was taking cues from me rather than the other way around. In the end, I was taking a shot in the dark much like before I checked the rules and called the clerk’s office.

Note to Alameda County: please revise your local rules to be clear, concise, and informative. Most other counties have solid local rules. We can only expect as much from you, AC.

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Posted in Landlord-Tenant, Law, Practice | Tags: ,

Posted by: shafaelaw | September 1, 2009

Best of Craigslist… summons!

This morning I had the summons in a divorce case published in a newspaper in order to “serve” the respondent by publication.  Pursuant to CCP 415.50, upon proving to the court that a party you are trying to serve is very difficult, or unable, to be found, the court may order the summons to be published in a newspaper.  But who reads the newspaper anymore… and even then, who reads the classifieds??  There have been several articles, blog posts, even TV show story lines (see: The Wire) where people contemplate the end of newspapers.  Let’s face it, with so much other media competing for our attention, the newspaper is losing the battle.

So, for purposes of service of summons, shouldn’t we start changing with the times as well?  Craigslist has pretty much become synonymous with “classifieds.”  I know many who read various Craigslist sections for fun.  I’m sure if there was a “summons” section, more people would read that for fun than people read the “public notices” section of a given newspaper.

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Posted in Family, Law, Practice | Tags: , , ,

Posted by: shafaelaw | August 6, 2009

The common law is selling, but I’m not buying

In a previous post, I wrote about a case involving the need to serve Respondent in an unknown location overseas.  I was baffled at why my practice guide was stating that a signed Notice and Acknowledgment of Receipt (FL-117) did not amount to consent in order for a court to exercise personal jurisdiction over a nonresident.  I looked up the case, Marriage of Meredith, (1982) 129 Cal. App. 3d 356, 361-362, and finally found an answer:

Initially, we observe that at least since Pennoyer v. Neff (1878) 95 U.S. 714 [24 L.Ed. 565], the concepts of service of summons and jurisdiction of the person are not coextensive. (Cf. Code Civ. Proc., §§ 410.10 and 410.50 and Judicial Council comments thereto.) Further, service of summons on a nonresident defendant may be sufficient to empower the issuing court to adjudicate the marriage relationship (Williams v. North Carolina (1942) 317 U.S. 287 [87 L.Ed. 279, 63 S.Ct. 207, 143 A.L.R. 1273]) but not to make in personam orders concerning support or child custody. (Kulko v. California Superior Court (1978) 436 U.S. 84 [56 L.Ed.2d 132, 98 S.Ct. 1690];May v. Anderson (1953) 345 U.S. 528 [97 L.Ed. 1221, 73 S.Ct. 840]; Estin v. Estin (1948) 334 U.S. 541 [92 L.Ed. 1561, 68 S.Ct. 1213, 1 A.L.R.2d 1412].) In order to issue an enforceable order for child support, a court must first obtain jurisdiction over the person sought to be ordered. (Kulko v. California Superior Court, supra, 436 U.S. 84.)

Personal jurisdiction may be obtained by consent. (National Rental v. Szukhent (1964) 375 U.S. 311 [11 L.Ed.2d 354, 84 S.Ct. 411]; Harrington v. Superior Court (1924) 194 Cal. 185 [228 P. 15].)

However, we do not think that James gave his consent for the reasons which follow.

Consent implies a concurrence of wills. Callahan v. Municipal Court (1971) 17 Cal.App.3d 1011 [95 Cal.Rptr. 423].) It also implies knowledge of the consequences of the consent. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564 [146 Cal.Rptr. 653].) The form which James signed did not tell him that his signing and returning it would subject him to the power of a California court to order him to pay money to Jo Anne on pain of fine or jail. Nor did it tell him he would not subject himself to that power if he did not sign and return it. It did tell him that if he did not sign and return it, that he might have to pay “any expenses incurred in serving you ….”

Further, James merely acknowledged receipt of the mailed documents. He acknowledged nothing whatsoever concerning their legal effect.

Under these circumstances, it is clear to us that from James’ signing the acknowledgment of receipt form, we cannot reasonably infer that he consented to the court’s jurisdiction over his person.

I don’t agree with the court’s reasoning.  Using the court’s barometer for adequate consent, what is the appropriate amount of consent?  If the court’s reasoning were to be extended, any signed statement of consent could be limited for the same reasons.  Or, alternatively, why doesn’t the judicial council form just add the consequences of signing the form?  Such a weak consent form seems to be rather ineffective.

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Posted in Family, Law | Tags: , , ,

Posted by: shafaelaw | July 29, 2009

Rise of the Big-Box Legal Retailer

For the past couple decades, big law firms have been the “norm” as far as how to practice law and the preferred way to go for both budding lawyers and for clients.  The last few years, with the economic downturn forcing every industry to cut costs, there has been a sea change as far as how people–both practitioners and their clients, corporate or otherwise–have been approaching the practice of law.  Clients were demanding lower costs and more personalized service.  Attorneys were seeking a better work-life balance and wanted to be able to implement their vision of how law should be practiced.  Up came the niche boutique firms, the virtual firms, and of course solo practitioners (both forced entrepreneurs and voluntary solos).  It seemed like the legal world was one big oyster with many pearls, not just one pearl and a bunch of sand.

However, after reading this blog post it dawned on me that the Big Box Retailer of law, the big firm, is fighting back to get the market share they have practically been giving away the last few years.  With their vast resources, they can out spend all the little guys to win over the clients that had been avoiding the big firms.  They have basically adopted the supermarket method of creating a “loss leader” in hopes of getting the “little” clients that have strayed to the small firms.  Once they grab their market share back, the small guys can no longer compete.  It’s much like mom & pop hardware stores competing with The Home Depot.  At first the small guys could offer products that Home Depot couldn’t or wouldn’t carry.  Once Home Depot became the hardware store, it made no sense to go anywhere else because there was nothing different with little hardware stores besides price.  The same can be said about Wal-Mart, IKEA, Best Buy, and so on.

Is this the Rise of the Big-Box Legal Retailer?  Are big firms trying to take back what’s theirs?  I think in the short term it will look like the big firms will appear to squeeze out the little guys with their endless resource pool.  However, in the end a reasonably-priced, good-quality product always prevails.

People know that free isn’t always better, but at the same time, people will not pay more for equal products.  Solo and small firms are more flexible and adaptable than big firms.  Big Firm lawyers are not encouraged to think outside the box.  It’s a machine.  Although it may be at times difficult to match big firms with their ability to give away more freebies in order to attract business, solo and small firms have the ability to be more creative so they don’t have to.  Netflix did not invent video rental.  They just thought of a better way of doing it.  Good ideas, with a little marketing, always win.

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Posted by: shafaelaw | July 28, 2009

But you signed for it!

I have been working on a pro bono case for a few months now.  It involves a husband and wife who married overseas and moved to the U.S. a few years ago.  They had one child born in the U.S. and lived under one roof.  They decided to take a vacation (or to move back) to their home country (depending on who you believe) and all three traveled over seas.  Some conflict took place over seas and the mother attempted to return with her daughter, but was unable to leave with her daughter.  Nonetheless, she returned to the U.S. sans daughter.  She is now filing for divorce and custody of her child.  The father is in an unknown location and can only be reached via e-mail.

As you can imagine, there are quite a few huge issues here, most dealing with dueling interests of sovereigns.  However, before getting to any of those issues, my main concern is that we must satisfy due process by personally serving the opposing party with summons and the petition before being able to continue with this action.  How do you serve someone overseas without knowing where he/she is located?  Another wrinkle is that this foreign country is not a signatory to the Hague Convention and has very poor relations with the U.S.

I consulted a practice guide and was doing a little research involving alternative methods of service.  Of course, the preferred and sure-fire method is personal service.  That looks unlikely here.  Substituted service is another possibility, but we’ve found that the opposing party has substantially cut ties with the U.S. and does not maintain a mailing address, place of business, or other address such as a P.O. Box.   Third is service by publication, which looks to be like the only way to proceed.

While looking into alternative methods, I started reading about Notice and Acknowledgment of Receipt.  I have been involved in a few cases which used this method of service.  It usually involves one parent moving away from the forum state and agreeing to consent to the home state jurisdiction.  However, I read something that caught my eye.  The practice guide said that personal jurisdiction could not be exercised over the nonresident opposing party on a signed Notice alone.  At first blush this did not make sense.  What better consent to jurisdiction than a signed document agreeing to allow the court to exercise personal jurisdiction over you?  The only explanation I could think of was that it uses the word “nonresident” and perhaps what it means is that if the party being served has no other contact with the forum state other than this signed Notice and Acknowledgment then there is no nexus between forum and party.  Perhaps if the party to be served was a former resident it would establish minimum contacts.

In any event, the Notice and Acknowledgment could be a way to go here, but it seems like it would waste more time than anything else.  The particular foreign county at issue here is not too great with postal mail, and if the party to be served does not respond we’d be back in this position anyway.

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Posted by: shafaelaw | July 27, 2009

How to be a Great Client

While there are likely thousands of pages written about good (but mostly) bad lawyers–and even more including lawyer jokes–I’d like to take a minute to give my two cents about what would make a great client.  This is not meant to be a laundry list of things that annoy a lawyer, and surely not a come-back for all the low-blow jokes lawyers take all the time.   What it is meant to be is one lawyer’s opinion on what a client can do that would enable the lawyer to provide more effective service.

1. Put everything in writing. This may sound cliche, but many people handle a lot of their business over the phone or during verbal conversations.  What is essential, but rarely happens, is for one or both (or more) of the parties to take a minute and to memorialize the conversation in some sort of writing or e-mail to confirm that both (or more) parties were talking about the same thing and reached the same conclusion, if any.  People have poor memories and they get worst as time passes.  With a written chronicle a lawyer can more effectively get to the core issues.  Related to this…

2. Keep good records. Although you may have a good case or you might be absolutely sure you are right in a dispute, it’s hard to convince someone that wasn’t there (like your attorney) if you do not have a record of it.  This is why it is important to keep dated records of financial transactions, or as stated above, of verbal transaction.  Always think that you must prove every transaction to somebody who was not there.  Would he or she believe you?  Why?

3. Establish clear deadlines with your attorney. Nobody likes to be hassled by endless phone calls, just ask your local telemarketer.  Likewise, you do not want to be on your lawyer’s bad side for calling twice a day.  After all, a lawyer has more than one client.  Instead, it’s easier on all parties to ask your lawyer when you should contact your attorney for a status update and the best way to contact each other.  Alternatively, you can ask your attorney to send you an e-mail every Friday with an update, for example.  Similarly, when your attorney asks from you to produce a specific document or other information that you have in your possession, be clear on when and how you are going to be delivering that information.

4. Adjust your expectations according to your situation. Your attorney is not a miracle worker, and similarly cannot predict everything about your case.  However, it is important at the outset of the lawyer’s representation to adjust his/her client’s expectations to fit the client’s specific legal matter.  If your attorney has not gauged and guided your expectations, then you should specifically ask the likelihood of your success, and more importantly, how much the lawyer expects it to cost the client, both in terms of time and money.

5. “A lawyer’s time and advice are his stock in trade.” –Abraham Lincoln. Although something may seem like a “quick question,” it’s helpful to remember that the practice of law is a service.  Lawyers neither sell tangible products like a retailer, nor does their service result in a consumable item such as it does in the food industry.  Lawyers serve their clients using analytical reasoning and advocacy skills in order to champion his or her client’s best interest.  Therefore, instead of asking your lawyer questions as they come up, it’s more effective to sit and think (as objectively as possible) about what your goals are, what you are willing to settle for at the minimum, and what you need to know in order to understand what your legal matter entails.  These are very important “big picture” issues to consider even before seeking the advice of a lawyer.  What do you want and what are you willing to do to get it?  In other words, being impulsive about learning about your case is less effective than truly pondering what you want and how far you are willing to go and then discussing your case with your attorney.  In the end it will be less time consuming for everyone involved.  That being said…

6. There are no winners in litigation. Litigation is time consuming, stressful, and downright expensive.  Nobody really wins in the end.  Clients should truly try to distance their emotions from the legal issues as much as possible.  Just because you didn’t “stick it to” him or her doesn’t mean you did not “win.”  If you are able to settle without litigation then everyone has done his or her job.  The best legal advice I can offer to anyone is to avoid litigation.  Then again, those that do not take this last piece of advice are the ones that keep people like me in business.

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Posted by: shafaelaw | June 2, 2009

We’re MOVING!

Due to growing business opportunities outside of San Francisco (and nicer digs), the Law Office of Matthew M. Shafae will be moving from San Francisco to San Mateo County. Effective June 15, 2009, our new contact information is as follows:

Law Office of Matthew M. Shafae
1200 Sixth Ave., Suite 200
Belmont, CA 94002
Telephone: (650) 539-4044

Please update your address book accordingly.

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