Brian Burke: About Your Divorce (Letter 30)
http://www.noozhawk.com/noozhawk/article/032612_brian_burke_about_your_divorce_letter_30/
By Brian Burke, Noozhawk Columnist
Instead of quitting, judge makes her case with a single ruling
Dear Pinky and Spike,
You’ll recall Judge Maryland was being mobbed by a murder of divorce lawyers. They continuously challenged her for cause, which meant she endured repeated hearings by a judge from another county on whether she could be fair and impartial in the case before her.
In addition to the challenges, numerous complaints were made to the Commission on Judicial Performance. The commission does not tell a judge a complaint has been made until and unless the staff decides the claim isn’t bogus.
We learned that, “There are a number of reasons for not informing a judge of all complaints,” including:
» 1. Ninety-six percent of the complaints are dismissed after the initial review.
» 2. “Were judges advised of every complaint they would be under a constant barrage of letters from the commission ...”
» 3. This “barrage of letters” would “stress” and “unsettle” a judge whose principle business is to stress and unsettle people.
» 4. This “barrage of letters” would be generated by the 1,176 new complaints filed in a year against one of the 1,774 California judges. In other words, before there is screening of any kind, there is fewer than one complaint per judge.
Note: What follows (No. 5) is by far the worst:
» 5. “Advising judges of all complaints could increase the fear that they will ‘intimidate’ or ‘retaliate’ against the complainant.”
The murder was troubled by none of this. Whenever one lawyer filed a complaint, a copy was delivered to Judge Maryland the day before the commission received it. Thus, Judge Maryland did not benefit from the commission’s efforts to prevent judges from being stressed and unsettled.
In my last letter I acknowledged that I couldn’t withstand this kind of mobbing if I were a judge. I think I’d quit. Instead of quitting, however, Judge Maryland signaled that she was giving up to the murder. She did it with a single ruling. Here’s what happened.
» 1. Two practicing physicians were married and had two children. The Husband suffered a traumatic brain injury (TBI) and could no longer practice medicine. Instead, he became a stay-at-home dad. He acknowledged there were times when he needed his Wife’s help. The couple spend everything the Wife earns and more, but money is just part of their marital problems.
Both Husband and Wife grew up being superstars and became doctors. They found each other and felt like equals. They were enjoying all they had accomplished, and they were looking forward to more of the same for the rest of their lives. Then the TBI. Although the Husband looks no different, he is — and their lives are not going to continue as before. They are angry, they are ashamed of being angry and they can’t help blaming the other for what they perceive as loss.
Finally, Husband goes to The Divorce Attorney. Husband takes $35,000 of the $70,000 the couple have in available funds and pays The Divorce Attorney a retainer. The Divorce Attorney’s first task is to get the court to issue a “kick-out order” so Husband and Children can live in the house without being bothered by Wife.
Note: This is not an easy thing to do. Judges don’t like to throw people out of their own homes. If the motion is successful and one person is ejected from their home, is the emotional conflict likely to increase or decrease?
» 2. Instead of quieting down a volatile emotional situation having nothing to do with the law, The Divorce Attorney stoked the worst in Husband and helped him prepare a declaration that described his Wife in the worst possible terms. He drew on events that went back 20 years and dragged members of Wife’s family into the conflict. The Divorce Lawyer used the tools of the law to enable his client to present the absolute worst aspects of himself in an effort to publicly hurt and humiliate his Wife — over the temporary occupation of a building.
» 3. When Wife got this declaration, she felt utterly betrayed by this man, whom she had supported for the last several years. So she took the remaining $35,000 and retained a lawyer, who helped her prepare a 64-page declaration that denied or explained each of Husband’s allegations while adding her own against him.
» 4. The hearing was scheduled for a Monday morning. Early in the afternoon of the Friday before the hearing, The Divorce Attorney called Husband to say they were going to spend all weekend putting their case together. Then, later that afternoon, The Divorce Attorney called Husband again to say that the case had been settled. Husband asked for the terms of the settlement, but The Divorce Attorney talked so fast that Husband couldn’t understand what he was saying. Finally, The Divorce Attorney said, “I’m advising the court that this case is settled. If you don’t accept the settlement you need to find yourself another lawyer.” To which Husband replied, “I really need to see the terms in writing.”
» 5. On Monday, The Divorce Attorney advised the court that the case had been settled. He gave the court a copy of a five-page agreement signed by himself, Wife and Wife’s lawyer. He told the judge that he’d get his client’s signature, and he would bring it to court on Wednesday morning.
» 6. Husband saw the written agreement for the first time on Monday afternoon. He had objections to some of the provisions and questions about others. He called The Divorce Attorney, who cut the conversation short by saying, “I told the court that you would sign it. You can bring a signed copy of the agreement to my office or you can bring a substitution of attorneys so I can give them your file.”
» 7. Husband was baffled, but he became even more confounded when he received a copy of an “ex parte motion” to be heard at 8 a.m. Wednesday. The Divorce Attorney was asking to be relieved from representing Husband because they were unable to communicate and cooperate with each other and because Husband refused to accept the settlement negotiated on his behalf.
Note: “Ex parte” means “one side only,” and an ex parte hearing is one in which the judge will rule on a request for an order after hearing from only one side. “Ex parte” proceedings are obviously the antithesis of any notion of “due process” on which our justice system is based. There is a category of situations in which an ex parte order is necessary, but each of those situations will involve an emergency (someone is threatening to do irreparable harm) or it will involve something trivial (such as a brief extension of a filing date).
Husband spent Monday night writing a letter to the judge. He explained: (a) He didn’t see the agreement until after it was presented to the court. (b) He didn’t agree to all the terms. (c) He was having second thoughts about the things he had stated in his declaration; his wife was the mother of his children and their relationship was now a thousand times worse than it was before the declaration was filed. (d) He paid The Divorce Lawyer every cent he had available for the case. The other lawyer got the rest of the money. (After their various legal payments were made, he didn’t know how his wife was going to support two households — and he was certain she wouldn’t have money he could use to hire another lawyer.)
» 8. Husband took his letter to the judge at the courthouse on Tuesday afternoon. No one would accept it.
» 9. He went to court at the time the ex parte hearing was supposed to be held. A member of the judge’s staff told him: “That was an ex parte hearing. The judge hears from only one side, and that was your Divorce Lawyer (who the judge ultimately excused from your case). It’s over with.”
Note: That a lawyer wants to withdraw from a case is not an emergency. There is a well-established right to a normal hearing when a person opposes his lawyer’s request to withdraw from a case. There is also well-established law to the effect that a client’s refusal to accept a settlement is not grounds for withdrawing from the case over the client’s objection.
This client was fleeced and abandoned. He’s left to deal with the wreckage the lawyer he trusted created for $35,000.
Judge Maryland has made peace with the murder of divorce lawyers. When they come to her court, they know that she’ll have to rule against each of them about 50 percent of the time. She may even criticize the way they practice law. But she will also allow them to do all the things divorce lawyers do to inflame the parties and run up huge legal fees — and then she will allow them to walk away when they tire of the case (which always happens when the money is gone). If they don’t erect a statue, they will name a tree for her somewhere close to the courthouse.
I’ve done my best to scare you away from that courthouse. Now it’s time for you guys to find and hire a mediator. Interview two or more. Ask this one question: “What’s your theory of practice?” Listen to the answer. Select one and then commit yourselves to a mediated settlement.
Your best friend,
Bucky
— 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 .(JavaScript must be enabled to view this email address).
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