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Friday, January 18 , 2019, 1:01 am | Fair 51º


Brian Burke: About Your Divorce (Letter 23)

Judge pulls no punches in sending a strong message to case's lawyers

Dear Nick and Nora:

This letter is a continuation of the last. You were both in court for the hearing on your respective “motions.”

Within the first few minutes, Judge Maryland fined your attorneys $1,000 each. Then she told you to stand up while she addressed you from the bench. I know you two are still on the same wavelength because you had exactly the same reaction.

I paraphrase: “The judge blasted my lawyer and then told me to stand up. I thought I would faint. I was sure she was going to tell the bailiff to take me to the Sunken Garden and then shoot me until dead. I was listening for those words and anything else said was nothing but sound waves.”

I wasn’t at the hearing so I can’t tell you what happened from observation, but I’ve got a copy of the transcript. I’ll quote from it and add my own comments.

Judge Maryland was delightfully displeased by your lawyers. She had them in a vice because each committed and complained about the same type of improper submission. So each admitted to the “knowing” and “deliberate” commission of prohibited practices.

Now the judge wants to prevent your lawyers from making you pay the fine she just imposed on them. That’s why she spoke directly to you.

Here’s the transcript:

The Court: The papers submitted to me on your behalf were unprofessional; they have done nothing good for either of you. I can’t prohibit your lawyers from billing you for the time spent on this nonsense, but I can impede their ability to collect it from you. If you are billed for the preparation of these motions and don’t pay, there will be a Bar Association fee arbitration. At that arbitration, submit a transcript of what I’ve said about your case today, and you should do well.

Sluggo: Your Honor. I understand what you are saying, and I respond respectfully. You are new to the bench. Your professional biography does not suggest that you have ever practiced family law. Accordingly, I must say that while I don’t agree with the content of the response, I don’t dispute its propriety. You see, your Honor, this is the way we do family law in Santa Barbara. Once you have had an opportunity to see enough other cases, I trust you will be willing to retract and apologize for this morning’s remarks.

Ripper: I concur with Mr. Sluggo, and I commend his courage to speak truth to power.

The Court: Ms. Ripper, if you are saying that you might not want me to hear your divorce cases in the future, it’s not a threat. It’s a promise in which I rejoice. Mr. Sluggo, I thank you for “speaking truth to power.” It adds further support to my suspicions about the way family law work is done in this community.

She was just warming up.

Please remember that I told you your lawyers were attempting to improperly prejudice the court by filling the file with information that should never be brought to the judge’s attention.

This kind of practice started here about 20 years ago. As with many things, it migrated from the Los Angeles area. At first, the established Bar complained and a couple of judges tried to fight it. But most of the Old Bench and the Old Bar either retired, gave up or died. Over time, most of the surviving objectors took another look at the situation and came to a big realization: The Professional Rules of Conduct allowed, and arguably encouraged, family lawyers to handle their cases as though they were suing an oil company or a bank. This had the effect of doubling or quadrupling the billable hours that could be put into a case. The cost to the clients ballooned, but the perception of most was that they were lucky to have had lawyers who would “stand up and fight for them.” The lawyers also realized that no matter how intense the claims and counterclaims, the fight never involved anything serious enough to interfere with a good night’s sleep.

The judge then addressed the content of the motions:

The Court: The parties and counsel may sit down. The petitioner-wife is “Nora.” I use first names for convenience and clarity. No disrespect is intended. Nora, through her attorney Mr. Sluggo, has asked me to order Nick to produce any and all documents he has or has had under his control that relate to certain business transactions on which the marital estate suffered a loss. I have also been asked to order Nick to not destroy any of these documents.

Mr. Sluggo refused to extend the minimum 30-day period to produce the documents. Mr. Sluggo’s refusal of a customary courtesy was based on his fear that Nick would destroy the records.

The only declaration in support of this request is one signed by Mr. Sluggo, and it is a description based on his “fears.”

Nora: Yes, sir … I mean, yes, Judge ...

The Court: You may remain seated. There is no information in this file to tell me what you think about your husband and these records, so I’m going to ask you directly.

Nora: That’s fine.

The Court: Was Nick secretive about the business he did with your marital property — property that belonged to both of you?

Nora: We didn’t have anything when we got married and no one has given us anything, so whatever we have, Nick earned. He was proud of his business success, and he was capable of talking my ear off about this deal or that deal. So, no, he was not secretive.

The Court: Did he ever talk to you about the Ponzi scheme he got involved with on account of a Mr. John Norton?

Nora: Did he talk about the Norton deal? For at least a year he didn’t talk about anything else. I begged him to let it go and to shut the … excuse me. I asked him not to talk about it, but he couldn’t stop beating himself up.

The Court: Do you fear that he will destroy records that have to do with the Norton loss or relating to stock trades that lost money?

Nora: If Nick were going to destroy records, he’s already done it. He has his limitations, but he’s not stupid.

Nick can’t find his ... ah ... Nick is not a record-keeping kind of person. If you ask him, he will tell you that he doesn’t read very much. We went to elementary school together and he was in the highest arithmetic group and the lowest reading group. So I doubt he could find the records, and I’m pretty sure he has no idea of what records were kept and which were tossed.

Even if he could find them, he wouldn’t know which ones to destroy — and neither would I. Even if he did know what to destroy, he wouldn’t do it. Nick can be a complete wimp, and I mean that in the best sense of the word.

The Court: Thank you, Nora. Your motion is denied, and I grant Nick’s request for the cost of defending against it. Ms. Ripper, please submit your itemized billing and a declaration justifying the expenses by the close of business on Friday. Serve a copy on Mr. Sluggo at the same time, and he shall have until the close of business next Wednesday.

Slugo: May I inquire, Your Honor, just when does the Court close its business?

The Court: A reasonable question, Mr. Sluggo. It seems as though it gets earlier and earlier. Madam Clerk, when does your office close?

The Clerk: At 3 in the afternoon until the end of this month, when we close at 2. But there is a drop box available until 5.

The Court: There it is, Mr. Sluggo. Three o’clock this month and 2 o’clock next month. You need to allow lots of extra time to get through all of the security precautions that have made our working environment so ugly and dehumanized — that’s the beginning of a rant, so I’ll stop.

And now to Nick’s motion to impose a budget on Nora and to establish what I’ll call an “attorneys’ trough.”

I’ll explain what Judge Maryland did with Nick’s motion in the next letter.

I know Nora just received her first bill from her lawyer because I could hear her “screams in Gloucester.” The bill from Nick’s lawyer is probably in the mail. These “statements for professional services rendered” can be, in their own special ways, works of art. If you let me see and comment on them, I promise that it will be very instructive.

With continuing interest and concern,

Your best old 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).

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