Oral argument on appeal

I just had my oral argument before the state appellate court.

By law, I have a right to a half hour of oral argument. There were three cases ahead of me on the calendar, and the lawyers were claiming that they'd be brief, so I only requested "5 or 10 minutes".

The first lawyer was a public defender with a perfunctory appeal for some dude who got a drug bust after a traffic stop. She was unconvincing, and choked on her attempts to pronounce "panoply" and "corollary". The DA appeared by telephone.

The next case was some sort of statute of limitations problem on when some embezzler should have been discovered.

Then the presiding judge left, and was replaced by Judge Mihara. The others on the panel were Judges McAdams and Duffy. They were the same ones I had before.

The next case was an elderly couple that tried to do some property exchange, but got caught with an increased assessment. The lawyer babbled on and on about how it was a "case of first impression", and how the assessment "exalts form over substance", and "frustrates the intent of the statute". He sounded like he had a losing case.

Finally, my case came up. There were no clocks in the courtroom, and they confiscated my electronic devices, so I could not watch the time. I briefly presented by analogy with Sole v Wyner, as that was not in the brief. Supposedly the judges had read the briefs. The judges were unimpressed, and one asked, "Did you get a chance to make this argument in the lower court?" I answered yes, and explained how Comm. Joseph did not really have the facts, and how I wanted to rebut the allegations against me, and didn't have the opportunity. The judges didn't look interested. I am now expecting a short decision saying simply that the lower court did not abuse its discretion.

My ex-wife took her turn, and she acknowledged that her lawyer misstated the length of time she worked on the case in her declaration, but claimed that I couldn't rebut the work she did do. She started to present an argument that I shouldn't be allowed to cross-examine Jennifer Gray, her lawyer, but could only say, "If he had --".

That's all. She stopped in mid-sentence. That summed it up right there. If I had cross-examined the lawyer, we would have gotten to the facts of the matter, and we wouldn't need to appeal. I would have exposed what a dishonest fraud she is. I let it go at that, and that was the end of the hearing.

Supporting kids until age 23

Missouri divorce lawyer Cynthia M. Fox writes in a Missouri paper:

[Missouri Senate Bill] SB 25 contains a provision that would lower from 22 to 21 the age at which a parent no longer is obligated to pay child support for a child still in school. ... The governor's press secretary, Jessica Robinson, told me the governor had not yet decided what to do about SB 25.

For family law attorneys, this episode will cause us to sharpen our pencils when crafting the parenting plans that we recommend to the court. We must sway judges to approve plans that obligate parents to pay their child's college expenses until the earlier of when the child graduates from college, completes eight semesters, or reaches age 23.

That's right, I said age 23. The current law, passed long before I began practicing law, didn't make a lot of sense given that so many kids reach age 22 part of the way through their last year in college.

In most states, parents have no obligation to pay for college or anything else for a child past age 18.

Notice how the divorce lawyer has her own agenda for parental obligations, even if it means selling out her own clients and ignoring the statutes.

I have heard of parents who were tricked into adverse parenting plan clauses by their own lawyers. Some lawyer will have her own opinion that children should be supported until age 23, and have her own client sign such an obligation by pretending it is just boilerplate language. Only years later does the parent discover that he has been fooled into an obligation that not even the state legislature thinks that he should have.

Lawyers are supposed to zealously protect their clients' legal rights. In family court, you really cannot trust your own lawyer to do that. You have to educate yourself on how the system works, and get rid of any lawyer who is working against your interests.

Judges deciding based on personality

An anonymous reader writes:

I have had similar problems in the past with Cmr. Joseph - he makes up his mind before he hears testimony.

He appears to decide cases based upon his perception of who is less cooperative. How does he make THAT determination? Simple. Whoever appears angry is the less cooperative party (even if the party is angry because the other side has ripped them off, lied, slandered, committed perjury and fraud). ...

Commissioner Irwin Joseph is incompetent, biased, and a complete idiot.

But don't take my word for it.

No need to take anybody's word for family court injustices. Just go down to your local family court, sit in on some hearings, and see for yourself.

I once heard second-hand from a judge who explained how he decides cases. He said that he would merely determine who the a**hole was. Then he would concoct some rationale for the a**hole to lose the case.

I was shocked that some judge would openly describe his judicial philosophy that way. He is supposed to be deciding based on the law and the facts, not on his subjective perception of who has the more abrasive personality.

I don't know whether Commissioner Joseph has this philosophy, but the possibility of a judge thinking this way is something to be concerned about in court. It is a major reason that people hire lawyers to represent them. If you insist on your legal rights in court, then you run the risk on looking unreasonable, and having the judge develop a prejudice against you. If you rely on your lawyer to make obnoxious demands, then he is just doing in job.

If you do have a judge who rules based on who he likes, and you do hire a lawyer for that reason, then you have the problem of worrying about whether the judge likes your lawyer. Some lawyers suck up to the judges at every opportunity, and some don't. If you hire a lawyer that is always trying to be liked by the judge, then the lawyer's reputation might work to your benefit, but the lawyer might very well sell out your case in order to preserve his nice guy image.

No refund on paternity fraud payments

California news:

A man who made child support payments based on a paternity judgment later proven erroneous was not entitled to reimbursement, this district’s Court of Appeal ruled yesterday.

Affirming an order by Los Angeles Superior Court Referee Dennis Carroll, Div. Eight held that Taron Grant James could not get back the money he paid to the Los Angeles County Child Support Services Department pursuant to a factually mistaken paternity finding.

James was named as father on the birth certificate of a child born to Tami Burton in 1992. The two had had a brief relationship before James, a member of the U.S. Navy, was deployed to serve in the Gulf War.

Calling it a "factually mistaken paternity finding" is an understatement. James was a victim of deliberate paternity fraud by the mom and the LA welfare agency. They knew that James was not the father, and made him pay anyway. James disputed paternity at every opportunity. He battled the case for 15 years, and still cannot get his money back. The mom should be in jail, and so should the LA welfare officials.

Notice of entry of remittitur

I just got this from the local family court:

Notice of entry of remittitur

To the above named parties and to their attorneys of record:

You are hereby notified that a Remittitur has been issued in the above
entitled matter pursuant to Rule 8.272 of the California Rules of the Court and the
Remittitur was entered on JUNE 13, 2007.

It was signed by the Deputy Clerk and had a certificate of mailing. That's all.

I don't even know what a Remittitur is. It is not in my dictionary. Why can't these guys ever say anything in plain English? Is some action on my part required? Why doesn't it send me a copy of that Remittitur, whatever that is? If it was important enough to tell me about it, why isn't it important enough to show it to me?

A reader writes:

I just perused your Angry Dad Blogspot in the hopes of seeing a very nice story in favour of dads on Father's Day. But, alas, I see you are dealing with yet another court "procedure".

The former City Attorney gave me a gift of a law dictionary. Here is how "Remittitur" is defined:
Lat: "in its broadest sense, the 'procedural' process by which the 'verdict' of a jury is diminished by subtraction......The term is used to describe generally any reduction made by the court without the consent of the jury." 116 S.E. 2d 867, 871. "The theory of 'additur' is a corollary to that of remittitur, the former to increase an inadequate verdict, the latter to decrease an excessive verdict. It is a universal rule...that a remittitur may not be granted by a court in lieu of a new trial unless consented to by the party 'unfavorably affected thereby.'' 258 F. 2d 17, 30.

Hope this helps. (Maybe it has something to do with your appeal re: your house being paid off, and the court's attempt to make you pay according to the idea that you have "more money" because of no mortgage. That was sooo unfair to you.

I am not sure if this reader is trying to be funny, but we have no jury verdicts in family court, and the clerks pay no attention to any substantive matter.

Losing without a lawyer

I have occasionally argued that people are better off without lawyers. But this man didn't use a lawyer, and his wife did, and he got laughed out of court:

Calvin goes on at some length in both his opening and reply briefs to contend all of California's statutes which have been codified in the various codes are void under the Northwest Ordinance of 1787, arguing that only common law exists and therefore the trial court had no jurisdiction to determine any of the marital dissolution issues in this case. ... With apologies to the former television series Star Trek, we decline "to boldly go where no [rational analysis] has gone before." (Star Trek: Episode Introduction monologue.)

He lost his appeal on all counts.

Reader argues that lawyers should be paid

Mike responds to my last post:

"an appeal court might understand that attorney fees for losing legal work may not be justified"

I doubt it. Gray probably didn't take the case on a contingency basis. So whatever time she's billed for, it's time she claims she spent on the case and for which she should be reimbursed. Show me one case where the lawyers didn't get paid for losing where a contingency agreement wasn't part of the deal. There may be many reasons for not paying her, but I can't see her "losing" as being one of them.

You have a point. Scooter Libby has to pay Ted Wells, even tho he lost the case. That is because Libby contracted to pay Wells, win or lose.

But I have no contract with Jennifer Gray. She contracted with my ex-wife based on promises that she would get the money from me. A written contingency fee contract is considered unethical in family court, but it happens all the time.

There is no issue of reimbursement. Gray's law firm (Bosso et al) wants to get paid, an and it is not expecting my ex-wife to pay. It wants the money from me, and Gray has sworn that her services have justified her exorbitant fees.

California law says that a family court can order an ex-spouse to pay attorney fees and costs in order to ensure a parity of legal representation in the action, based on the relative circumstances of the parties. My ex-wife is a lawyer herself, and I am not a lawyer and was not even using a lawyer, so it is not so clear how I would have any obligation to pay her lawyer.

Here is what my ex-wife said in her April 28, 2006 brief:

In determining the amount of a §2030 need-based fees and costs award, this Court must consider what is 'just and reasonable" under the parties' "relative circumstances" and must base its determination on the parties' respective incomes and needs, and "any factors affecting" their respective abilities. Fain. C. §2030(a)(2) and §2032(a).

In addition to considering the parties' needs and abilities to pay in fixing the amount of a 'just and reasonable' fee award, the trial court must also take into account the following ten factors:

1 . Nature and complexity of the litigation;
2. Amount involved;
3. skill required and employed in handling the litigation;
4. attention given;
5. success of counsel's efforts;
6. respective attorneys' professional standing and reputation;
7. intricacies and importance of the litigation;
8. labor and necessity for skilled legal training and ability in trying the case;
9. litigation costs already incurred and expected to be incurred through conclusion of the case; and
10. time consumed.

(Marriage of Keech 75 CA4th 860, 870 (1999); Marriage of Braud 45 CA4th 797, 827 (1996); Marriage of O'Conner 59 CA4th 877, 884 (1997).

Accordingly, the attorneys of record may testify directly as to the issues involved, the work performed and the rates charged, as well as to special qualifications justifying a larger fee- i.e., length of time admitted to practice, etc. Marriage of McQuoid 9 CA4th 1353, 1361 (1991) ("Counsel's statements to the court were sufficient to establish the value of his services") Jennifer J. Gray, Ms. AngryMom's former attorney, submitted a sworn declaration along with this motion, addressing every factor above, showing that the attorney's fees incurred were indeed just and reasonable. (Attached hereto as Exhibit 'T" is the Declaration of Jennifer J. Gray in Support of Petitioner’s Points and Authorities in Support of Petitioner's Motion for (1) Need-Based Attorney's Fees; (2) Family Code §271 Attorney's Fees Sanctions; and (3) Appellate Attorney's Fees)

Gray submitted a declaration with factual allegations for each of the above ten points that the court is supposed to consider. If I somehow owe the money without consideration of those factual issues, then she didn't need to submit that declaration. But she did, and I have a right to rebut her claims.

All I am saying is that the court should not just unquestionably accept Gray's lies. If she makes allegedly factual claims to the court in support of me being ordered to pay her money, then I should have an opportunity to rebut them.

Comm. Irwin Joseph refused to give me any such opportunity. Gray was sitting right there in the courtroom, representing another fool client. He just gave her a free pass, and ordered me to pay the $10k. He acted as if he just didn't want to embarrass Gray.

That is why I appealed. I think that Comm. Joseph should have given me the chance to rebut Gray's lies, if he was going to rely on those lies to order me to pay money.

Nudist cannot collect attorney fees

Tori Anne Whiner Wyner sued the state of Florida in federal court claiming that she had a constitutional right to join a nude peace protest in a public park. She won a preliminary injunction and $25k in attorney fees, but ultimately lost the case.

Today the US Supreme Court ruled unanimously in Sole v Wyner that Florida did not have to pay her the $25k. Justice Ginsburg said what ought to be obvious:

Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who "secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her]," has "[won] a battle but los[t] the war." Watson v. County of Riverside, 300 F. 3d 1092, 1096 (CA9 2002).

Judge Kelly and Comm. Irwin Joseph ordered me to pay $36.5k in attorney fees for my ex-wife. Nearly all of the legal work was in support of a motion to break our 50-50 child custody deal, and give sole legal custody to my ex-wife. All I ever asked for was to maintain our 50-50 custody.

After making a bunch of silly claims, her lawyer did manage to get a temporary change in custody, pending a trial. The trial proved that her claims were bogus, and we eventually reverted to the 50-50 custody we had in the first place.

So why was I ordered to pay that $36.5k in attorney fees? Why would the court want to reward lawyers making bogus claims that waste a lot of court time and ultimately accomplish nothing? I don't know the answer, except to notice that family court judges are very favorable to lawyers, and there is no Supreme Court to correct their excesses.

To justify the attorney fees, my ex-wife submitted an affidavit from Jennifer Gray. I contended that it is filled with lies, and demanded to cross-examiner Gray. In a real court, an affidavit is meaningless unless the opposing party has an opportunity to cross-examine. Comm. Joseph rejected my request, and ordered me to pay anyway, without giving any explanation.

This is the issue that is currently under appeal to a higher California court. I say that I should be able to confront Gray on her lies, and to get her to explain why she thinks she deserves the money she is demanding. Oral argument is at the end of the month, and we should have a decision in about three months. Today's Supreme Court decision gives me a little bit of hope that an appeal court might understand that attorney fees for losing legal work may not be justified.