Saturday, October 30, 2010
Crime Law: Divorce Law-Grab a Tiger by the Tail-Leave Sleepin...
Crime Law: Divorce Law-Grab a Tiger by the Tail-Leave Sleepin...: "The following is provided for general informational purposes only and should not be relied upon in any manner before consulting with a licen..."
Divorce Law-Grab a Tiger by the Tail-Leave Sleeping Tigers Alone
The following is provided for general informational purposes only and should not be relied upon in any manner before consulting with a licensed attorney in your state.
Divorce Law-Grab a Tiger by the Tail
Authored by California attorney Mark Johnson with offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California. http://www.crimelaw.org
Divorce law, particularly when children are involved, can be extremely acrimonious, and it affects me the most on a personal level due in part the lawyer becomes a therapist, too. I generally will not accept a case if the client's goal is to take the other party to task on every infraction. For example, "S/he was a minute late dropping off the kids, I want you to file a contempt of court motion." I made the mistake once of representing a good friend with his case, with a single child support matter taking two years to resolve and the parties were constantly trying to one-up the other.
I recently gave pro bono assistance to a father who I saw in family court representing himself. I met with him several times and gave advice on strategy and likely outcomes and the best way to approach his case. The best information I can convey sometimes is that the legal system is not about right or wrong but whether conduct is lawful and if a court can provide any relief to an aggrieved party. Other mantras I share are: you may never be vindicated, particularly in family court; bad things happen to good people, life isn't always fair, mean people win sometimes; take the high road, live well and put this behind you as soon as possible.
The father I am helping finally heard and most importantly accepted what I had to say including, put down your sword and extend an olive branch of peace. He listened to my advice and let me know he has obtained what he wanted on an informal basis while his next court date is pending. He understands what he must accept and cannot control, as distasteful as it can be. He recently called to tell me he will continue his case on his own because he fears any change in the status quo will cause a contentious reaction and since he is making forward progress he does not want to risk going backwards.
I am so impressed by this gentleman who has already raised two children who are adults now and he is beside himself that he does not have the unfettered access to his two-year-old daughter that he had with his grown kids. He is of modest means and education but I am touched and moved by him each time we meet.
CAREFUL WHAT YOU WISH FOR
A court/judge has no interest in one's personal affairs, of a civil nature, until people cannot resolve a dispute on their own. Divorcing parents are free to make whatever child custody arrangements they choose, for the most part, and the court only gets involved if the parents can't agree.
Before I continue, its important to stress that parents can, and do, say any defamatory and untrue remark about the other with near impunity. Occasionally a judge may penalize a parent for making demonstrably untrue accusations, but this is the exception and not the rule and I have never heard of a judge referring a case to the district attorney for perjury charges despite most legal papers requiring a statement be executed under penalty of perjury. Individuals enjoy "judicial immunity" for all statements made in court papers and precludes a defamation lawsuit unless the untrue statements are published outside the ambit of the court papers. Judicial immunity extends to police investigations and reports, too.
The idea behind judicial immunity is that people must feel free to use and participate in the judicial process without fear of being sued for what they say. Though in extreme cases it might be possible to institute an action for malicious prosecution or abuse of process. A criminal case for false police report might be pursued, too, but good luck with that. Police agencies don't like to be put in the middle and often suspect ulterior motives.
So now to the point of the section heading. After the fact, a parent came to me after filing a report of domestic violence/battery with the police and pursing a restraining order. The police investigated and the other parent denied and accused the reporting parent of abuse. The criminal case became a wash and the case rejected against both parents. The parent pursued the restraining order and cross allegations of abuse were made. The court issued mutual restraining orders and now they meet in a police lobby to accomplish the child custody exchange. They are refrained from contacting each other and once daily calls to the child when in the other parents care has ceased.
The moral of the story, and it is not always possible, do what you can to make peace. Think before you act, because steps to gain leverage even when legitimate can backfire and have severe consequences.
I recognize that attorney fees can mount very quickly particularly when he fees run from 200-350 an hour, and beyond the reach of many, however, family law is not a place for the faint of heart, uninformed, naive or idealistic. Most definitely, what you don't know can and will hurt you.
Divorce Law-Grab a Tiger by the Tail
Authored by California attorney Mark Johnson with offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California. http://www.crimelaw.org
Divorce law, particularly when children are involved, can be extremely acrimonious, and it affects me the most on a personal level due in part the lawyer becomes a therapist, too. I generally will not accept a case if the client's goal is to take the other party to task on every infraction. For example, "S/he was a minute late dropping off the kids, I want you to file a contempt of court motion." I made the mistake once of representing a good friend with his case, with a single child support matter taking two years to resolve and the parties were constantly trying to one-up the other.
I recently gave pro bono assistance to a father who I saw in family court representing himself. I met with him several times and gave advice on strategy and likely outcomes and the best way to approach his case. The best information I can convey sometimes is that the legal system is not about right or wrong but whether conduct is lawful and if a court can provide any relief to an aggrieved party. Other mantras I share are: you may never be vindicated, particularly in family court; bad things happen to good people, life isn't always fair, mean people win sometimes; take the high road, live well and put this behind you as soon as possible.
The father I am helping finally heard and most importantly accepted what I had to say including, put down your sword and extend an olive branch of peace. He listened to my advice and let me know he has obtained what he wanted on an informal basis while his next court date is pending. He understands what he must accept and cannot control, as distasteful as it can be. He recently called to tell me he will continue his case on his own because he fears any change in the status quo will cause a contentious reaction and since he is making forward progress he does not want to risk going backwards.
I am so impressed by this gentleman who has already raised two children who are adults now and he is beside himself that he does not have the unfettered access to his two-year-old daughter that he had with his grown kids. He is of modest means and education but I am touched and moved by him each time we meet.
CAREFUL WHAT YOU WISH FOR
A court/judge has no interest in one's personal affairs, of a civil nature, until people cannot resolve a dispute on their own. Divorcing parents are free to make whatever child custody arrangements they choose, for the most part, and the court only gets involved if the parents can't agree.
Before I continue, its important to stress that parents can, and do, say any defamatory and untrue remark about the other with near impunity. Occasionally a judge may penalize a parent for making demonstrably untrue accusations, but this is the exception and not the rule and I have never heard of a judge referring a case to the district attorney for perjury charges despite most legal papers requiring a statement be executed under penalty of perjury. Individuals enjoy "judicial immunity" for all statements made in court papers and precludes a defamation lawsuit unless the untrue statements are published outside the ambit of the court papers. Judicial immunity extends to police investigations and reports, too.
The idea behind judicial immunity is that people must feel free to use and participate in the judicial process without fear of being sued for what they say. Though in extreme cases it might be possible to institute an action for malicious prosecution or abuse of process. A criminal case for false police report might be pursued, too, but good luck with that. Police agencies don't like to be put in the middle and often suspect ulterior motives.
So now to the point of the section heading. After the fact, a parent came to me after filing a report of domestic violence/battery with the police and pursing a restraining order. The police investigated and the other parent denied and accused the reporting parent of abuse. The criminal case became a wash and the case rejected against both parents. The parent pursued the restraining order and cross allegations of abuse were made. The court issued mutual restraining orders and now they meet in a police lobby to accomplish the child custody exchange. They are refrained from contacting each other and once daily calls to the child when in the other parents care has ceased.
The moral of the story, and it is not always possible, do what you can to make peace. Think before you act, because steps to gain leverage even when legitimate can backfire and have severe consequences.
I recognize that attorney fees can mount very quickly particularly when he fees run from 200-350 an hour, and beyond the reach of many, however, family law is not a place for the faint of heart, uninformed, naive or idealistic. Most definitely, what you don't know can and will hurt you.
Thursday, October 28, 2010
Crime Law: Honorable Mentions
Crime Law: Honorable Mentions: "Honorable Mentions As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Comm..."
Honorable Mentions-Updated
Honorable Mentions
As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Commissioner ….” From time-to-time I do come across a judicial officer who appears to have become worn-out and as a result abrupt and impatient. However, this is usually the exception and not the rule and my experience is that most judges are quite worthy of their position and potentially gratuitous tile.
More often-than-not, I come across those in robes who live-up to the title of both honorable and noble. I appear in courts throughout the state and most recently appeared in Alameda Superior court in front of Judge James D. Hunter. He presided over a restraining orderhearing that pitted parents against their children. After nearly a full day of testimony he requested that I along with opposing and co-counsel conference the matter. He read between the lines and saw an outcome, without saying such, that would further divide the family. He demonstrated deference for everyone and encouraged an agreed to resolution that everyone could live with which was accomplished without further harm to everyone.
I Googled Judge Hunter afterwards and was not surprised he has made many decisions that demonstrate courage and the tenets of justice despite going against vocal agendas.
The following is just a small sampling of justices in front of whom I appeared deserving of an honorable mention and several of whom who have a track record of demonstrating the courage of their convictions:
Honorable Commissioner JoAnn Johnson, Ventura Superior Court. She has presided over restraining order hearings and holds the moving party to the required proof standard.
Honorable Commissioner H. Don Christian Pomona Superior Court-Family Law. Patient, judicious and fair.
Honorable Norma Manella, now of the Federal Appellate Court, presided over a civil rights case and encouraged settlement against a reluctant defendant with tremendous resources.
Honorable Magistrate Judge Andrew Wistrich Federal District Court-presided over settlement of a civil rights violation case.
Honorable Judge John D. Molloy Riverside Superior Court. Presided over serious criminal trial. Demonstrated fairness, objectivity and compassion.
Honorable Stephen Wilson Federal District Court-presided over criminal matter and held the government attorneys to a high standard of conduct and admonished the attorneys several times relative to case presentation.
Honorable Judge George Wu Federal Court presided over civil rights trial.
Honorable Richard Walmark Los Angeles Superior Court judge presided over criminal trial and was extremely fair towards the defense.
Honorable William Fahey Los Angeles Superior Court-encouraged settlement in breach of contract case.
Honorable Judge Gregory Pollack San Diego Superior Court-Family Law- Maintains a fair and tempered approach to matters. Allows the parties to express all issues and listens. A person in pro per could expect patience and understanding.
As part of the position judges and commissioners are embraced with the title that includes the word “Honorable Judge/Commissioner ….” From time-to-time I do come across a judicial officer who appears to have become worn-out and as a result abrupt and impatient. However, this is usually the exception and not the rule and my experience is that most judges are quite worthy of their position and potentially gratuitous tile.
More often-than-not, I come across those in robes who live-up to the title of both honorable and noble. I appear in courts throughout the state and most recently appeared in Alameda Superior court in front of Judge James D. Hunter. He presided over a restraining orderhearing that pitted parents against their children. After nearly a full day of testimony he requested that I along with opposing and co-counsel conference the matter. He read between the lines and saw an outcome, without saying such, that would further divide the family. He demonstrated deference for everyone and encouraged an agreed to resolution that everyone could live with which was accomplished without further harm to everyone.
I Googled Judge Hunter afterwards and was not surprised he has made many decisions that demonstrate courage and the tenets of justice despite going against vocal agendas.
The following is just a small sampling of justices in front of whom I appeared deserving of an honorable mention and several of whom who have a track record of demonstrating the courage of their convictions:
Honorable Commissioner JoAnn Johnson, Ventura Superior Court. She has presided over restraining order hearings and holds the moving party to the required proof standard.
Honorable Commissioner H. Don Christian Pomona Superior Court-Family Law. Patient, judicious and fair.
Honorable Norma Manella, now of the Federal Appellate Court, presided over a civil rights case and encouraged settlement against a reluctant defendant with tremendous resources.
Honorable Magistrate Judge Andrew Wistrich Federal District Court-presided over settlement of a civil rights violation case.
Honorable Judge John D. Molloy Riverside Superior Court. Presided over serious criminal trial. Demonstrated fairness, objectivity and compassion.
Honorable Stephen Wilson Federal District Court-presided over criminal matter and held the government attorneys to a high standard of conduct and admonished the attorneys several times relative to case presentation.
Honorable Judge George Wu Federal Court presided over civil rights trial.
Honorable Richard Walmark Los Angeles Superior Court judge presided over criminal trial and was extremely fair towards the defense.
Honorable William Fahey Los Angeles Superior Court-encouraged settlement in breach of contract case.
Honorable Judge Gregory Pollack San Diego Superior Court-Family Law- Maintains a fair and tempered approach to matters. Allows the parties to express all issues and listens. A person in pro per could expect patience and understanding.
Thursday, October 21, 2010
Criminal Justice-The Right to an Attorney You Can Afford
I have accepted a case that involves a a violation of probation and a new charge. I am left with the work of my predecessor and a client with a felony conviction and while on probation the subject of a probation search resulting in a violation of probation.
In cases of violations of probation that also have the possibility of a new charge, the prosecution has tremendous leverage as one could defeat the new charge and still have severe consequences related to the violation of probation. The most predominant term of probation is "obey all laws" and obtaining a new charge violates the probation terms even if the new charge is defeated because a far lesser standard of evidence, without benefit of a jury trial, is necessary to violates one's probation. In cases of a felony, a violation could result in the imposition of sentence being rendered from the original case. The sentence in most cases may result in state prison. Hence, the prosecution can maintain a "take-it-or-leave-it" position relative to any offer made that does not include state prison.
Its beyond me why in the present case my client has a felony stemming from a shoplift case with no prior convictions. Regardless, I must use the hand I am dealt and accept the sometimes caustic realities of a justice system that penalizes a person for challenging the merits of a case. While I do in fact believe in our justice system, such a belief doesn't lessen the sting of reality of a cost-benefit scenario of accept a certain outcome versus the potential for incarceration in state prison.
The sad reality is justice is sometimes about what you can afford and what risk you are willing to take. I dont like to gamble and dont know why Vegas calls it gambling as the lost wages is almost a certain outcome in most cases where you leave a matter to chance.
In this present case the prosecutor has offered a very favorable resolution, one I did not expect without trial, and I am grateful and he has not forgotten that statistics are about numbers and not people; however, I am reminded that in many cases, people become numbers and its frightens me
In cases of violations of probation that also have the possibility of a new charge, the prosecution has tremendous leverage as one could defeat the new charge and still have severe consequences related to the violation of probation. The most predominant term of probation is "obey all laws" and obtaining a new charge violates the probation terms even if the new charge is defeated because a far lesser standard of evidence, without benefit of a jury trial, is necessary to violates one's probation. In cases of a felony, a violation could result in the imposition of sentence being rendered from the original case. The sentence in most cases may result in state prison. Hence, the prosecution can maintain a "take-it-or-leave-it" position relative to any offer made that does not include state prison.
Its beyond me why in the present case my client has a felony stemming from a shoplift case with no prior convictions. Regardless, I must use the hand I am dealt and accept the sometimes caustic realities of a justice system that penalizes a person for challenging the merits of a case. While I do in fact believe in our justice system, such a belief doesn't lessen the sting of reality of a cost-benefit scenario of accept a certain outcome versus the potential for incarceration in state prison.
The sad reality is justice is sometimes about what you can afford and what risk you are willing to take. I dont like to gamble and dont know why Vegas calls it gambling as the lost wages is almost a certain outcome in most cases where you leave a matter to chance.
In this present case the prosecutor has offered a very favorable resolution, one I did not expect without trial, and I am grateful and he has not forgotten that statistics are about numbers and not people; however, I am reminded that in many cases, people become numbers and its frightens me
Wednesday, October 13, 2010
Moved in Family Court
Today I had a case in family court, which is usually emotional and many parties represent themselves, often at their own peril.
I was moved emotionally by a father who filed and argued his own motion for modification of child custody involving his two-year-old daughter.
I could tell he was of modest means but he took the time and expense to wear a pressed shirt, tie and nice dress slacks. Many parties come in t-shirts and jeans. He was organized, had copies of documents for the court and other party. Unknown to him there are keys words necessary to argue for a change in custody, namely changed circumstances and best interests of the child, not the parent.
When asked by the court what was the basis for the changed custody the man replied, "I am not working so much now and have more time to devote to my daughter and I miss seeing her and want to tell her in person I love her as often as I can." He also indicated he used to care for her 12 hours a days at the mothers behest and he misses his daughter. My heart sunk when I heard his words that echoed through the courtroom. The court asked him and the mother to take some time in the hallway to try to work out a holiday schedule and the case would be recalled. I resolved the case I was there before his case was concluded. As I departed I told him I was impressed by his presentation and sincerity and offered pro bono services to him should he need them in the future. :-)
I was moved emotionally by a father who filed and argued his own motion for modification of child custody involving his two-year-old daughter.
I could tell he was of modest means but he took the time and expense to wear a pressed shirt, tie and nice dress slacks. Many parties come in t-shirts and jeans. He was organized, had copies of documents for the court and other party. Unknown to him there are keys words necessary to argue for a change in custody, namely changed circumstances and best interests of the child, not the parent.
When asked by the court what was the basis for the changed custody the man replied, "I am not working so much now and have more time to devote to my daughter and I miss seeing her and want to tell her in person I love her as often as I can." He also indicated he used to care for her 12 hours a days at the mothers behest and he misses his daughter. My heart sunk when I heard his words that echoed through the courtroom. The court asked him and the mother to take some time in the hallway to try to work out a holiday schedule and the case would be recalled. I resolved the case I was there before his case was concluded. As I departed I told him I was impressed by his presentation and sincerity and offered pro bono services to him should he need them in the future. :-)
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