Let’s Get Back To Work
Posted: May 7, 2010 Filed under: Practice | Tags: accountability, law practice, procedure, technology, work Leave a comment »“To alcohol! The cause of… and solution to… all of life’s problems.” — Homer J. Simpson
The above quote is taken from an episode of Season 8 of the Simpsons where Homer bootlegs alcohol and secretly supplies it to Moe’s Tavern during Springfield’s version of the Prohibition. It’s relevant because you could substitute the word “technology” for “alcohol” and it would be a rather accurate assessment of our current relationship with technology. Technology is a blessing and a curse. It is convenient and, yet, we are building a growing dependence on it. The number of people that can survive longer than a few hours without their cell phone is growing fewer and fewer.
That being said, e-mail is awesome. It combines the immediacy of a telephone call with a written record. I am handling a probate case in a county that is new to me, and the county is rather distant from my office. Thus, I am learning their local practices without being able to regularly visit the court in person. That means I either need to spend an inordinate amount of time in an automated phone tree or communicate via postal service–a method that could significantly slow down this probate. Much to my surprise, I received an e-mail from the Probate Examiner (the person who handles all the probate filings at the court) explaining to me that he hadn’t received a necessary document. We corresponded a few times until he was able to locate the document. Problem solved, probate continued. A few weeks later, I had an issue and sent an e-mail to the Probate Examiner. Again, problem solved, probate continued. A third time, a mutual error occurred. Yet again, we corresponded by e-mail. Problem solved; however, this time with a caveat. A probate clerk (the person who physically accepts the documents to be filed and then sends them along to the Examiner) informed the Probate Examiner and me that court personnel e-mail addresses are not public and that if I had any further questions I should address them by phone or mail. In simple terms, she told the Examiner and me to cease communicating by e-mail.
“Wait… you’re telling me to STOP using a form of communication that is working beautifully and to instead revert to when I couldn’t reach a responsive human being?”
This makes no sense. We all know how difficult it is to get a human being on the phone, especially at a government office. We also know how these same offices never happen to receive mail sent to them. Now that I have found a mutually effective way to communicate with the court I have to refrain from using that method of communication?
This isn’t the fault of the employees. They are presumably just following the rules. However, there is simply no incentive for government employees to go the extra mile. They get paid the same amount of money whether they work really hard or drag their feet. There is also the same risk of losing their job if they don’t go the extra mile: zero. As long as government employees arrive to work on time, and do not sexually harass anyone, their job is relatively safe. Those in private sector jobs, however, need to be productive or risk losing their jobs.
You see, like technology, capitalism is a two-edged sword. Capitalism rewards people who produce capital. It’s good, some might argue, because it creates an incentive to be productive and weeds out those who are not. It’s a meritocracy. It’s bad, some may argue, because it puts profits (capital) before people. Capitalism has no moral compass.
It’s not necessarily that cut and dry, though. For example, small children make for cheap labor. Ask sweat shop owners in southeast Asia. However, we value the health of children over their productivity and have passed child labor laws in this country. So, we do not necessarily practice unbridled capitalism. There are some limits.
In such a capitalistic country, why then is the government so unaccountable and… bureaucratic? Why do our government employees not face the same accountability measures that employees at for-profit institutions face?
Let’s get back to work. Let’s give a crap. I know not all jobs are “dream jobs.” Even if you love your job, we all have bad days where we question our chosen career paths. But that’s why we all get paid to work. It’s a trade. However, by striving to be the best [insert job title here] in your office, we make other people’s days better. We will all be happier. On the flip side, those who are just kicking back and collecting a pay check are no good for any of us. It’s in our best interest to hold each other accountable, not to assist in being unproductive.
This post isn’t directed at the probate clerk personally. This is directed at how we want our government to work. I understand that answering non-stop e-mails can be tiresome and frustrating. But isn’t that better than getting telephone calls and/or letters and/or visits from several frustrated people who could not get a human being on the phone? And, if it is truly an unbearable job, perhaps it’s not for you. Maybe there is someone out there better suited to do that, or doesn’t mind to do that job. We are not entitled to a pay check, but rather earn it through our work.
Technology or alcohol or capitalism, or whatever else, isn’t evil in and of itself. They are beneficial or detrimental based on how we use them. We should have e-mail access to our court employees. It’s quick, clear, and effective. We should also expect a timely, informative response. Any other company would expect that of its employees, and as “employers” of government agencies, we should expect it, too.
Partly Cloudy With a Chance of Security Breach
Posted: April 22, 2010 Filed under: Practice | Tags: cloud, malpractice, practice of law, privacy, technology Leave a comment »I’ve looked at clouds from both sides now
From up and down, and still somehow
It’s cloud illusions I recall
I really don’t know clouds at all
– “Both Sides Now” by Joni Mitchell
Technology is fast becoming (if it hasn’t already) a relevant topic in any and every aspect of life. Even though law, in general, tends to incorporate technological advances much slower than other professions, the legal world cannot deny technology’s impact and influence on the practice of law. For example, social networking and digital communication has already made for interesting revelations and discussions within the legal world. Judges have declared mistrials because of one juror’s use of Twitter. (Source). In another case, the prosecutor posted on Facebook a parody of the “Gilligan Island” theme song as it relates to the trial he was currently prosecuting. (Source). Most recently, the United States Supreme Court was revealed to be rather naive about text messaging. (Source). The list goes on. It’s clear that as legal practitioners, legal academics, judicial officers, etc., we will be dealing with technology for the foreseeable future in order to define acceptable (both socially and legally) practices for using technology in and out of the court room. But what about updating the practice of law?
More specifically: What about cloud computing as a law practice management tool?
I have been reading several blog posts about law offices transitioning from local file storage to cloud computing. (In a nutshell, cloud computing is the practice of keeping your digital files stored on the internet, in redundant, remote servers so that the files may be accessed from anywhere with an internet connection as opposed to being stored on your local hard drive). Most, if not all, of the posts warn the reader of potential security breaches by switching to a cloud model. Inherent to the cloud computing model is the necessity to keep sensitive, private, and possibly confidential/privileged data outside of the office. Oftentimes, the data is stored on computers in foreign countries, and accordingly subject to foreign privacy laws and possibly out of the reach of United States privacy laws. Thus, a practitioner is receiving convenience–the ability to access files from any internet-accessible location–in exchange for exposure to possible malpractice–the dissemination of client data to unauthorized third parties. The risk is surely significant. However, as demonstrated here and here, why are we so apprehensive about cloud computing yet so confident sending e-mails containing oftentimes the same sensitive data we refuse to place in the cloud? Most e-mails are as secure as sending a postcard.
I definitely do not stand for the proposition that sending non-encrypted e-mails should lead to storing client data on servers in foreign countries. However, I do believe that if someone really wanted to obtain your data, it’s easier than we all think. Additionally, a hard copy of anything can be scanned digitally and then reproduced ad infinitum and instantly sent to every corner of the world. So, not using cloud computing does not ipso facto make your data safe from interception. Now, I am not Chicken Little with my wings flailing here. It’s not the end of secure data, but merely the painful beginning of security technology as it relates to cloud computing. I remember 12 or so years ago when the first iMac was released by Apple. It didn’t have a floppy drive. You’re probably laughing at that last statement, but back in 1998 many critics were up in arms about how a desktop computer would be able to function without an external storage. We now carry our “floppies” on our key chains in the form of multi-gigabyte flash drives. The cloud is definitely where we will end up. We’re just waiting for the coast to be clear enough for clouds.
From “My Sharona” to In Propia Persona
Posted: April 20, 2010 Filed under: Family, Law | Tags: custody, in pro per, justice, representation, self-represented, support, visitation Leave a comment »“Oh my little pretty one, pretty one
When you gonna give me some time Sharona
When you make my motor run, my motor run
Gun it coming, off the line Sharona”
–”My Sharona” by The Knack
Spring is upon us and love is in the air. Well, until all the love crumbles down and all that you are left with is resent, bitterness, and contempt. What did you expect? This is a family law blog. In California, your odds are better than a coin flip that your “My Sharona”-eque pining for the object of your affection will eventually result in a divorce. Surprisingly, that’s not even the depressing fact. What’s worse, out of the over 200,000 divorce petitions filed annually, 70% of those cases involve at least one self-represented party (i.e., somebody without a lawyer). (source) Since California law has to come up with a fancy Latin phrase for everything, we call “not having a lawyer” as in propia persona, or for short, in pro per.
There are, of course, reasons that contribute to such a high percentage of parties in family law cases that proceed in pro per. I won’t get into the contributing factors here since there are sites that have done an adequate job explaining the phenomenon. I’m not a fan of reinventing the wheel. Instead, how can we resolve this disparity between represented and non-represented parties in family law cases without requiring additional resources from the County or the local bar? Here’s my take on it.
All over the web are blog posts by and about disgruntled, bitter law graduates who can’t find jobs. Some blame it on the recent economic downturn. Others blame it on the legal education institution that is fast becoming a lawyer mill that provides its graduates no real training upon graduation. (I will not link to the various posts because I do not think such discourse is very useful or worthwhile, but you will have no trouble finding them through a web search). Assuming someone went to law school to, say, practice law (I know, this assumption sounds obvious, but after you read the aforementioned blog posts you’ll quickly realize that a lot of peoples’ motivations to go to law school rarely relate to practicing law), then getting real world “reps” will provide a truly valuable benefit to his/her law career. Such clinical experience is substantially lacking in today’s legal education/training. So, if we have a population of people who cannot obtain legal representation for one reason or another, and we have another population of un- or under-employed attorneys, then why can’t we kill two birds here? The resources required would be nominal. Someone would need to provide some sort of initial training seminar to the new attorneys and then experienced lawyers would need to act as “mentor” attorneys with which the new grads may consult. As a safeguard (for all of you people crying malpractice), the parties who could not previously obtain counsel would also sign some sort of informed consent to be represented by the new grads.
I may have made light of divorce at the beginning of this post, but in all seriousness many family law cases involve very grave custody and support issues. Parties who proceed in pro per risk prejudicing not only their own case and rights, but it also affects their children. Having relatively inexperienced counsel surely cannot be worse than having no counsel at all.
Where There’s a Will, There’s a Say
Posted: March 16, 2010 Filed under: Family, Law, Probate | Tags: biological, legislation, parentage, Probate, property, same-sex, will Leave a comment »We’re all going to die. I don’t mean that in a Chicken Little sort of way. I mean that in a stating-the-obvious sort of way. The jury is still out as to what happens to us after we die, but one thing that is fairly certain is that once you die you have little say over what happens to your property, to whom you give your property, and any other instructions you’d like to make from “beyond the grave.” Of course, you can have a say if you properly draft and execute a will.
Wills are cheap and easy to create. I even saw a commercial on TV where a famous lawyer advertised will drafting services online for less than $100. Even still, there are few people out there who have a will. Statistics vary, but one study shows that 55% of adult Americans do not have will.
If that’s the case, it seems like it’s not that big of a deal to die without a will, right?
Not exactly. When someone dies without a will, the person is said to have died intestate. For those keeping score at home, that means “without a will.” When you die intestate, your property (which becomes your estate’s property, since you’re dead and all) is distributed using your state’s intestacy statute. Well, we all know what intestate means, but what exactly does statute mean? A statute is a law created by the legislature, or law-making body of the government (think, Congress). So somewhere in the California Code (Probate Code sections 6400, et seq. to be exact) there is a statute (remember, that just means “law”) that says where a person’s property goes if he or she dies intestate. Well, that then suggests that if you don’t have a will when you die, then the legislature decides who gets your property.
Who cares? I don’t even own anything!
The cool thing about a will is that it doesn’t “speak” until you die. So it can dispose of property that you don’t even own yet. You don’t have anything now, but what if you start accumulating property? Or what if you are later the beneficiary of someone else’s estate? Or you marry someone else who has some property? Just as importantly, you can “cut” people out of any share of your estate if you so decide.
Let me use an example to illustrate an extreme circumstance where a will would certainly clarify any ambiguity. Hypothetically, let’s assume Harry is in a relationship with Wendy. Harry and Wendy have a child, Cheryl. Unfortunately, Harry and Wendy start having problems and decide to split up. They were never married. Harry moves on, and although he remains a loving father to Cheryl, he decides to marry his new girlfriend Greta. Greta has two children from her previous marriage. As tragedy would have it, Harry chokes on a pretzel and dies. Harry never got around to drafting a will. Under California’s intestacy statute, all of Harry’s community property and one-half of his separate property go to his surviving spouse, Greta. When Greta dies, all of her property (including the property she acquired from Harry’s estate) is now disposed of through her will, or if there is no will, by the intestacy statute. In other words, unless Greta provides for Cheryl through her own will, Cheryl will have to somehow intervene in order to assert her rights, if any, to take some of her father’s property. However, if Harry had a will providing for Cheryl, then disaster could be averted… or, at least Harry’s true wishes would be clear.
So, what’s the point? I still don’t have any more property than when this post began.
The point is that peoples’ living situations are changing constantly. These days, a Thanksgiving feast involving ex-spouses, step-children, biological children, half-siblings, etc., are commonplace. Divorces are par for the course. People are living longer and dying with considerable amounts of property. Property is being re-characterized all the time. Everyone should take the time to at least consider drafting a will.
Are You In… Or Do You Want Out?
Posted: February 21, 2010 Filed under: Landlord-Tenant, Law | Tags: goals, Landlord-Tenant, representation, strategy Leave a comment »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.
(S)He Who Made It Gets Visitation
Posted: October 21, 2009 Filed under: Family, Law | Tags: biological, custody, parentage, visitation Leave a comment »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.
Ensure Insurance
Posted: October 12, 2009 Filed under: Practice | Tags: disclosure, insurance, malpractice Leave a comment »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.
Keep up with the Jones’, please
Posted: September 17, 2009 Filed under: Landlord-Tenant, Law, Practice | Tags: local rules, procedure Leave a comment »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.
Best of Craigslist… summons!
Posted: September 1, 2009 Filed under: Family, Law, Practice | Tags: internet, publication, service, summons Leave a comment »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.
