From “My Sharona” to In Propia Persona

“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

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 estate goes 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?

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

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

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

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!

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.


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.


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.


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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