Dear Nick and Nora:
In the last letter I explained what divorce lawyers have to do to support themselves. This letter reports on the career challenges now facing Anne Maryland, the judge assigned to your case. If you recall, when she ruled on your motions, she:
» 1) Chastised both lawyers for filing negative, inflammatory declarations full of hearsay — declarations each lawyer knew were improper to file. This resulted in a $1,000 fine for each of them, which she emphasized was against the lawyers and not the two of you.
» 2) Denied Nora’s motion to establish a budget for her own support, finding that Nora’s half of the community income was more than enough to meet her needs.
» 3) Refused to make an order restraining Nick from destroying documents, finding that there was no evidence suggesting he would do such a thing.
» 4) Took the steam out of Nora’s lawyer’s claim that Nick had violated his fiduciary duty by making several bad investment decisions. She wants to hear evidence of the profitable decisions Nick made before hearing about the unprofitable ones. This sounds like she intends to weigh the good against the bad. This is good news for Nick since he has earned $10 for every dollar he’s lost. This is bad news for Nora’s lawyer if Nora tells him not to pursue this “lost cause.”
» 5) Found Nora’s motions frivolous and ordered her to pay Nick $20,000 for the cost of defending against them. She also found Nick’s motions frivolous and ordered Nick to pay Nora $20,000 for the cost of defending against them.
I couldn’t be at your hearing, but I’ve read the transcript carefully, and I think the way the judge handled this part of your case is terrific. In my opinion, all of her rulings were correct, and the way she chastised the lawyers was mild.
Mr. Sluggo and Ms. Ripper have a point about the necessity of fighting fire with fire. If there are widespread local practices that are improper but permitted by the judges, a lawyer who doesn’t resort to them could disadvantage his own client. Just as important is the client’s perception of what is happening. If her lawyer doesn’t “fight fire with fire” and “stand up for her,” she’s likely to be dissatisfied with the representation even if she prevails.
You would think that if a judge refuses to tolerate practices that generate large fees without benefiting the clients, the practice would stop — at least in cases assigned to that particular judge. That’s what I thought, and I was wrong. I forgot about the murder of crows.
The poetic name for a flock of crows is a “murder,” and I’m sure you’ve seen a murder of crows “mob” (attack) another animal. It happens in late May, and the murder is acting to protect fledglings that are particularly vulnerable at that time. When a murder of lawyers decides to mob a judge because they don’t like the way she’s doing the court’s business, they can do it in several ways:
» 1) In any case filed with the Superior Court, each party can disqualify one judge without giving — or even having — a reason for doing it by citing Code of Civil Procedure 170.6 (challenge without a cause). (*1)
There are three judges who get family law assignments. If the Murder coordinated the persistent use of 170.6 challenges against Judge Maryland, the other two judges have to handle all of her lawyer-cases.
» 2) As far as divorce lawyers are concerned, the persistent and coordinated use of 170.6 challenges would take Judge Maryland out of the family law business — and that would be the end of the story. However, a far juicier tactic — and the tactic now favored by the murder — is repeated challenges for cause. Under Code of Civil Procedure 170.1, a claim is made that a judge, Judge Maryland in this case, can’t be impartial in the case to which she’s assigned. The challenging lawyer describes the facts evidencing Judge Maryland’s lack of impartiality. Judge Maryland must then either admit that she can’t be impartial or respond to the accusations in writing. A second judge reviews the written defense and decides whether the assigned judge is or is not impartial.
In other words, the case starts off with a trial and the assigned judge is the “defendant.” Judge Maryland must plead in support of her own impartiality. If the second judge rules that Judge Maryland is not impartial, there is also an implicit and negative finding about Judge Maryland’s inability to see her own ethical limits, which is, in turn, a negative finding about her honesty and integrity.
That judgment — and anticipation of that judgment — might be the source of some uncomfortable anxiety for those who have made impartial judging their life’s work.
» 3) Filing complaints about a judge’s conduct to the Commission on Judicial Performance is the third way the murder is mobbing Judge Maryland. When the commission gets a complaint against a judge, it starts a review process that may or may not result in disciplinary procedures.
You would expect judges, who must declare winners and losers as a part of their job, to be accustomed to fielding complaints made by sore losers to the commission. I have it on good authority that this isn’t necessarily true. Judges are disconcerted to learn that their judicial conduct is under investigation by the Commission on Judicial Performance (*2). I’ve looked into legitimate grounds for a complaint against a judge and, for reasons I’ll explain in the next letter, Judge Maryland’s conduct at your hearing may cause her some grief in the near future.
» 4) While most California judges are originally appointed by the governor, all Superior Court judges have to stand for election. In most cases they run unopposed. While a judge shouldn’t fear the prospect of being opposed at their next election, none can relish the possibility. I’ll tell you more in the next letter, and I’ll start with the question, “How can a judge finance a campaign to keep her job?”
Although Judge Maryland doesn’t stand for election for another two years, the murder is subtly raising the specter of opposition in ways that are calculated to ensure their intention will get back to the judge. The murder has made multiple complaints to the Commission on Judicial Performance. The fact that complaints have been made is being used as one of the justifications for the repeated CCP 170.1 challenges, and I’ve heard that the murder has a couple of other moves in reserve.
As I’ve become more and more aware of the extent of the “mob” against this judge, I feel an urge to somehow come to her assistance. Other than make a donation to her election campaign in two years, I can’t think of anything else to do. She’s got a case pending now that may tell us how well she’s withstanding the mobbing. Her decision should be public before I write the next letter. I’ll tell you about it because it will be interesting no matter what she does.
Your oldest and best friend,
Bucky
*1) It is usually referred to as “CCP 170.6” or just “170.6.” It is used as a noun and as a verb, as in, “I’m going to use my 170.6 against Judge Maryland” (noun) or “I am going to 170.6 Judge Maryland” (verb).
*2) People who are good at what they do may not mind being evaluated; they may consider it a source of praise. But who wants to be evaluated on the basis of a complaint? The commission is not going to conclude: “This is a great judge and the charge is not true.” The best a judge can hope for is: “Unfounded.” Not “false,” just “unfounded.”
— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail info@burkefamilylaw.com.