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Monday, December 10 , 2018, 5:45 pm | Mostly Cloudy 58º


Brian Burke: About Your Divorce (Letter 51) — ‘Discovery’ Starts to Wear Ralph Down

Dear Spike and Pinky:

Here’s more about Ralph …

For six months, Ralph felt under pressure to answer written questions under oath, to search for old documents he thought he had nothing to do with, and to reconstruct the decisions he made to trade one stock or another.

Eunice Heep was relentless. Once, when Ralph missed a deadline by a single day, she filed a motion at 8 a.m. the very next day for an order compelling Ralph to do what she had told him to do. When he was sure he had done what she asked, Heep always found something wrong with his work and argued to the court that, whatever the deficiency happened to be, it was missing — either because it was evidence of mismanagement of community property or evidence of Ralph’s intent to cheap Rebecca out of her share of the community property. Ralph continually felt like he had been charged with a crime and was being prosecuted.

There were three court hearings. While Heep always got the judge to tell Ralph to do this or that, he was never ordered to pay Rebecca’s attorney’s fees. Jennifer thought it was a good sign. The judge agreed with Heep about the technical inadequacy of Ralph’s compliance; however, Jennifer surmised the judge probably thought that whatever was missing wasn’t important enough to warrant a hearing — and that was the message being signaled when fees were not awarded to Heep.

Jennifer quickly added that Heep didn’t care about winning a fee award as long as someone paid her. (For instance, Rebecca is entitled to at least half of the retirement account. If necessary, Rebecca could take money out of the account, include it with her year’s taxable income, pay a 10 percent penalty and turn the remainder over to Heep.)

While this “discovery phase” of the legal process was grinding along, Ralph called his lawyers two or three times a week. He would ask one legitimate question and then he would voice a complaint (that was either a question combined with a whine or a whine in the form of a question). One recurring question was, “How can this be fair?”

Ashley got tired of hearing the “f-word,” which led to this conversation:

“Ashley, I’m paying you guys a lot of money, and I still don’t understand why you can’t give me better legal protection against Heep. What she’s making me do is ridiculous. How can it be the law when it’s so unfair?”

Ashley replied, “Ralph, do you really want me to answer that question?”

“You’re my lawyer; yes, I want an answer.”

“Tell me again what your question was.”

“What Heep is making me do is unfair, so how can it be the law?”

“What do you mean by ‘fair’? Give me a definition.”

“Fair means ‘just.’”

“I don’t know how many times we’ve been through this exchange, Ralph, but once again I have to tell you that I can’t answer your question because it can’t be answered. I had a class in law school where the professor divided us into groups of three and told us we had 15 minutes to come up with a definition of ‘fair’ that everyone in the group could sign off on. None of the groups could do it. He had done the same exercise for 10 years and no group of three had ever been able to do it. The idea that fair equals justice doesn’t help to make the language certain enough to have a meaning I can work with. A local lawyer, Marc McGinnes, has said, “Justice is really ‘just us.’” It sounds kind of corny at first, but the more you think about it, the deeper it gets.”

“Ashley, that’s not an answer.”

“Ralph, I don’t have an answer. How many times are you going to ask me or Jennifer a question that requires a definition of ‘fair’?”

“Well, since you never have an answer, I won’t ask again. Sometimes talking to my own lawyers is the worst part of this experience.”

Ashley said, “Ralph, you are such a flatterer. You don’t have to sweet talk me to keep my morale up and to make sure I stay interested in your case. That’s what you’re paying us for.”

Ralph had nothing more to say. But he continued to have difficulty in complying with the discovery demands. To assist, Jennifer made a huge chart with each of the unsatisfied requests listed on the left side; on the right side, Ralph could write answers to questions such as, “What’s been provided?” “What could you possibly do to look for more information?” “Which of those things have you done already?” “Which ones will you do in the future and when will you do them?” “If you have determined that relevant information is not obtainable, explain why.”

For six weeks Ralph had a standing Friday afternoon appointment. Jennifer and Ashley “took the Ralph duty” on alternate Fridays. Often, they discovered, it was easier to make the phone calls or to do the Internet search themselves as opposed to trying to get Ralph to do it.

The chart worked when they brought it to the next hearing. When laid out on a single two-dimensional surface, the amount of material provided and the amount of work done in an attempt to get what had not been provided was overwhelming.

The judge cut Jennifer off in the middle of her description of what was on the chart. She said, “That’s enough, Ms. Gaunt.” Jennifer was mortified, and she expected to be chastised for something. But the judge continued, “And that’s enough of these discovery motions. I’m making a finding that Mr. Robertson has made a good faith attempt to comply with all discovery demands and that he has therefore met his duty under both the Family Code and the Code of Civil Procedure.”

Jennifer decided to seize the moment: “Your Honor, a central issue in this case is whether Mr. Robertson owes Rebecca Robertson half of the support he paid to his first wife out of community property. Would I be out of order to ask if that issue could be severed from all others and set for trial?”

The judge replied, “Would you be out of order? The answer is yes, and you know it. You have to make a noticed motion so the other side can prepare objections if they have any. However, I know this case far better than I should. The severance sounds like a good idea. What do you think, Ms. Heep?”

“I think the rules should be followed.”

“Very well. Ms. Gaunt, file your motion. Ms. Heep, I’ve already said that I’m inclined to grant the motion when it’s made, but only after I read what you have to say. Whatever that may be, it should have sufficient substance to persuade me that you have not insisted on a noticed hearing just to put Ms. Gaunt through the motions (pun intended). In the absence of a decent argument from you, your client is going to pay attorneys’ fees to Ms. Gaunt.”

She had finally won on a ruling in this case. When Ralph asked her how significant it was, she had to admit that on a scale of one to 10 it was much closer to a one than to a 10. But it was the first sign that this judge didn’t have something personal against her or Ashley. It also suggested that Eunice Heep wasn’t bulletproof — and it was the first step toward getting the central issue in the case resolved one way or another.

Finally, it means we are one letter away from examining a problem presented by a single issue on which the lawyers sincerely hold opposite beliefs — which is what this story about Ralph has been leading up to.

Your friend,

— 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). Click here to read previous columns. The opinions expressed are his own.

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