Taking Care of Enemies

I should have listened to Lyn, Bill Spruance’s long-time secretary and probably the only real friend he had in the world.  For some reason, she genuinely liked him – but she also saw right through him.

“If he makes you a promise of any kind, get it in writing,” she advised.  “Try not to go to lunch with him on Friday, or any day, if you can help it.  And don’t get on his wrong side.”

He wasn’t a good enough attorney to make life miserable for anybody except those who worked for him, but when he took the bench he took with him a long list of grievances – and promptly began accumulating more – and used his power to settle scores old and new.

*

One such grievance stemmed from a run-in several years before with another attorney.  The two had been on opposite sides of a case, there was a pissing match in open court and Spruance was held in contempt.  After taking the bench, he let it be known that the other attorney would be well advised never to set foot in his courtroom.

Unfortunately, the other attorney eventually found himself in Spruance’s court while representing a criminal defendant.  The attorney made a motion to disqualify the judge under a code section authorizing such disqualifications if the judge is prejudiced against a party or his attorney “so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing…”

These motions are routinely granted without argument.  Indeed, the law specifically prohibits a challenged judge from holding a hearing on the motion.  If the judge objects to the challenge, the matter must be sent to another judge for a hearing.  Yet Spruance put the defense attorney through the ringer, grilling him in open court about the facts behind his motion for disqualification and claiming to remember neither the trial in which he had been held in contempt nor his threats against the defense attorney.

Finally, he granted the motion, but only after ordering the defense attorney to pay the fees of all the witnesses who had been subpoenaed to appear at trial that day – an order with no legal grounds whatsoever.

The Supreme Court found that he acted “out of revenge and in bad faith.”

*

But the worst one was when he ordered a Deputy District Attorney – who was  in court asking for a search warrant – to sit in the jury box and refused to let him leave the courtroom.  Spruance was angry because the DDA had filed an appeal from his judgment in a different case and began questioning him belligerently about an affidavit filed in that case, which was not before him at the time.  Eventually, the DA declined to answer any more questions and the following exchange occurred:

Mr. Behrendt: May I ask what purpose these questions are being asked me at this time?

The Court: I don’t believe, Mr. Behrendt, that it is your position as an officer to ask the court any questions. The court is asking you and the court, I believe, is entitled to a little courtesy.

Mr. Behrendt: I have always been courteous to this court, Your Honor, and –

The Court: Now, the –

Mr. Behrendt: — and I have a right to reserve any answer to –

The Court: Well, now, Mr. Behrendt, I’ll tell you what. You have a seat in the jury box.

Mr. Behrendt: Am I being held, Your Honor, in custody at this time?

The Court: If you wish it this way.

…

Mr. Behrendt: Is the court holding me in contempt or holding me in custody at this time?

The Court: The court is telling you to sit down.

Mr. Behrendt: Your Honor, at this time I intend to leave the courtroom unless I am being placed under arrest for contempt.

The Court: Mr. Behrendt, don’t leave the courtroom. I’m telling you to sit down. Now, that is a court order, if you wish.

Mr. Behrendt: Is the court placing me in custody at this time, Your Honor?

The Court: It depends on what you do, Mr. Behrendt. The court is telling you to sit down, Mr. Behrendt, I don’t want to do anything rash. Now, you sit down.

Mr. Behrendt: May I ask the court what authority it is holding me in this court?

The Court: Mr. Behrendt, that is a court order, to sit down until such time –

Mr. Behrendt: May the court define my status at this time, why I am being held inside this courtroom?

…

The Court: Mr. Behrendt, I have had enough of you, now, you sit down.

Mr. Behrendt: Your Honor, at this time –

Mr. Court: Mr. Behrendt, this is the last time. Now, sit down.

Mr. Behrendt: Excuse me, Your Honor, I intend to leave the court. If I am no longer required –

The Court: You are required here.

Mr. Behrendt: May I ask the reason the court is requiring me to stay in this courtroom?

The Court: [To the bailiff] Do you want to escort him to a seat, please?

Mr. Behrendt: Am I being placed in custody at this time?

The Court: Would you escort him to a seat, please? You may have a seat in the jury box.”

Not surprisingly, the Supreme Court held that the judge was completely out of line in bringing up the earlier matter – not to mention holding the Deputy DA in custody on a whim.

Much as a 12-year-old child views things, however, nothing was ever Spruance’s fault and he later sought to explain away his actions by claiming there was a “technical difficulty” in the search warrant that the DA was seeking.  The Supreme Court saw through this one, also: “Petitioner’s attempt to put a gloss of good faith over the entire incident…failed to conceal the fact that his conduct was clearly motivated by feelings of animosity toward [the Deputy DA.]”

*

And then there was the time he gave a defendant the finger for showing up late for traffic court.

And there was also the time when a defendant was testifying at trial and Spruance gave him a raspberry, or Bronx cheer, to indicate that he didn’t believe his testimony.  It seems the good judge was angry at the deputy public defender representing the defendant because he had refused a plea bargain suggested by the judge.

…and also the time Spruance got a traffic ticket and persuaded a reluctant Judge Robert Fairwell to dismiss it.  That was bad enough in itself, but he then altered the court record to make it look as if the ticket was dismissed because he had gone to traffic school.

In his appeal from the order removing him from the bench, he blamed all of these matters on being overworked, on the “loose practices” prevailing in the judicial district and on his inexperience, and asserted that while he may have made mistakes, “nobody complained.”  But the Supreme Court having none of it.

“[T]he evidence is clear and convincing that when attorneys did object, petitioner retaliated,” the court wrote, following up with a few choice phrases about the extent of its displeasure with Spruance and the “clear evidence of [his] petty tyranny and favoritism.”

“Taken as a whole the record indicates that petitioner engaged in a pervasive course of conduct of overreaching his judicial authority by deciding cases for reasons other than the merits, by improperly influencing another judge, and by using the judicial process to gain special favors for friends and political supporters….[P]etitioner has under color of judicial office repeatedly committed petty, vindictive, vulgar and otherwise unjudicial acts….Clearly, petitioner abused his judicial authority and acted out of revenge and hostility….[P]etitioner’s contemptuous “raspberry” was a deliberate and malicious attempt to prejudice the defendant’s case, motivated by petitioner’s anger toward the deputy public defender… [T]here can be no mitigation for maliciously motivated unjudicial conduct….”

Taking Care of Friends

Some judges are born incompetent; some achieve incompetence and some have incompetence thrust upon them.

Despite my quibble that California tends mostly to have Republican governors who tend mostly to appoint their judges from among the ranks of local District Attorney’s offices, Alameda County has historically had a highly qualified judiciary.  In fact, although I haven’t done a scientific study, I believe that Alameda County has sent more judges to the California Supreme Court than any other county in the state.

There was, of course, Judge B, with the mounted moose head on the wall just behind him, who never understood why his courtroom was empty day after day because attorneys refused to appear before him.  And there was Judge C, whose divorce appeal I handled and who led me to comment that “you evidently don’t have to know anything about the law to be a judge.”  And Judge E, who tended to sleep during trials.

And then there was Judge William D. Spruance, who was in a class all his own.

Spruance was the senior partner in a three-attorney San Leandro firm when he decided to stand for election as a judge in 1970.  Elected, he took office in January, 1971, and served for four years before being removed from the bench.  But the last two of those four years he spent fighting charges against him for what the California Supreme Court later termed his “inexcusable and reprehensible conduct.”

(For some reason [I have my suspicions as to why], judges in California tend to retire in mid-term, allowing the governor to appoint their replacement, who then runs as an incumbent when the six-year term expires.  It is rare for a judicial seat to be up for grabs in a general election.  But it does happen.)

Eyebrows were raised before he was even elected.  Spruance was running against another long-time Alameda County attorney and came up with the campaign slogan “Retain Bill Spruance for Judge.”  When challenged as to why he used the word “retain,” which tended to suggest that he was running as an incumbent, he was all innocence.  “Clients ‘retain’ an attorney,” he would explain.  “That’s all I meant.”

Of course I didn’t know any of this when I went to work for him the summer after my first year of law school.  But foolishly, even learning of his background and reading the California Supreme Court’s characterization of him as “petty and vindictive,” I stayed on for four years after law school before finally bailing in disgust.

*

Spruance had a lot of friends and a lot of enemies, although both of those categories were figments of his own imagination.  He really had no friends: he had sycophants, drinking buddies, hangers-on and those who found him valuable for their own purposes.  And he had no real enemies: those who didn’t like him tended not to waste any time worrying about him and those whom he termed “enemies” were mostly those whom he didn’t like.

But once on the bench, he set out to reward his friends and punish his enemies.

Two of his “friends” were attorneys Julio Juarez and Robert Winkler.  I later knew both of them.  Bob Winkler was a fine, intelligent attorney and how he let himself get caught up with Spruance I never really understood.  Julio Juarez was a nice guy but a public menace as an attorney, and who was disbarred much too late in his career.

But Spruance took care of them, appointing them over and over again to represent criminal defendants at public expense, without regard to the niceties of the law.

A criminal defendant has a Constitutional right to an attorney and when he can’t afford an attorney of his own the Public Defender is appointed to represent him.  But for various reasons which aren’t important here, the Public Defender sometimes cannot represent a particular defendant.  In these cases, private attorneys are appointed by the court from a list of approved attorneys provided by the county.  And the private attorneys are paid for by the county.  Judges are supposed to assign private attorneys in some sort of order so that none of them receives any more appointments than any of the others on the panel.

When he was a practicing attorney, Spruance was used to buying friendship by standing for round after round of drinks, picking up the dinner tab and providing free legal services over the objections of his business partners.  He saw his judgeship as just another, bigger, fiefdom.  He gave Winkler and Juarez 44% of his appointments – usually without even checking to see if the defendant was eligible for a court-appointed attorney.

The California Supreme Court, on an appeal from a recommendation of the Commission on Judicial Performance that he be removed from the bench, commented that “We can only conclude that petitioner’s appointments of Messrs. Juarez and Winkler were motivated by his desire to reward his friends and election campaign supporters.”

*

In another case, the nephew of a friend and political supporter was arrested and charged with engaging in a speed contest.  Without the knowledge of the District Attorney or the judge properly assigned to the case, Spruance had the matter transferred to his department.  He then reduced the speed contest charge to illegal parking on condition that the boy perform 40 hours of community service at the San Leandro Boys Club, a favorite charity of his and one on whose board of directors he had previously served.

The Supreme Court concluded that his actions “were motivated by nothing having to do with the merits of the case, but rather by his friendship with [the defendant’s uncle.]”

*

And then there was the case in which the defendant was another long-time friend and the defense attorney not only worked for Bob Winkler but was also dating Spruance’s daughter.  Spruance (and remember: he was a sitting judge) cornered the Deputy DA assigned to the case on several occasions and tried to persuade him to reduce the charge from drunk driving to reckless driving.  When the deputy held firm (good for him, but I’ll bet he didn’t fare too well in Spruance’s court after that), Spruance went to his superior.

The Supreme Court held that he “knew or should have known that he was using the prestige and authority of his judicial office to effect a disposition of a criminal case not before him in any judicial capacity and [here’s that phrase again] for reasons unconnected with the merits of the case.”

*

W.D. never forgot a slight by an enemy.  And if he could punish someone who displeased him while at the same time rewarding a friend, well, so much the better.

When the son of one long-time friend was charged with being under the influence of drugs in public and possession of marijuana, and was defended by another long-time friend, Julio Juarez, Spruance went to work.

Before the court trial (i.e., a trial in front of a judge only, without a jury), the judge suggested that the defendant plead guilty to the under-the-influence charge and that the possession charge be dismissed.  The DA rejected the proposed deal.  During the trial, Spruance brought it up again, was rebuffed again and commented sadly that the DA was forcing him to do something he didn’t want to do.

Evidently what he didn’t want to do, but did, was exclude most of the prosecution’s evidence and then find the defendant “not guilty” on both counts.  The DA appealed and the verdict was reversed.  The defendant then appealed to a higher court which reinstated the original verdict, commenting that a retrial would amount to double jeopardy for the defendant, despite a “gross miscarriage of justice” on the part of the trial court.

Spruance later stated that the defendant, while actually guilty, had been “saved by a technicality.”  The Supreme Court pooh-poohed this excuse, as follows:

Petitioner’s attempt to put a gloss of good faith on the whole incident, by declaring that the defendant “had been saved by a technicality,” was intended to conceal the fact that petitioner’s conduct was motivated by his relationship with the defendant’s father and with the defendant’s counsel, as well as petitioner’s desire to punish the deputy district attorney for his refusal to accept petitioner’s suggestion of a negotiated plea.

But that wasn’t the worst.

Next:  Taking Care of Enemies

Tom Deal was disappointed in the interim name I gave to an interim post about his use and misuse of the legal system.  Maybe he’ll like this title better.

He also referred to me as a sometime “shill.”

Now, now, Tom.  The word “shill” sounds more actionable to me than when I called you “disturbed.”

And you can comment all you like, but don’t believe anybody really reads the comments to my posts.  I have yet to censor or delete anything you’ve written.  Would you accord me the same courtesy on your fairy tale website?

I may yet get around to writing about you, the hell you have put your children through, the bizarre, unsubstantiated, unfactual, often fanciful and mostly incoherent submissions you offer to the court on a more-than-weekly basis.

Or I may not.

You are right that I have not been there for the entire proceedings over the last seven or eight years.  But you don’t need to sink ankle-deep in cow shit to know what it is.  Just a little spattering on your shoe tells you all you need to know about the big pile that you barely missed.

I’m very happy you are a white-water rafter.  That does not, however, as you seem to think, make you a mensch.

How I Learned To Stop Worrying and Love Those Who Make Lawyers Rich

(pace Stanley Kubrick)

I’m going to write about Tom and Kim Deal soon, I promise.  Their divorce is probably the ugliest family law matter to ever sully the Alameda County Courts.  It has gone on for something like seven years now, has been up to the appellate court a handful of times, has cost Kim a king’s ransom in attorney’s fees – and there seems to be no end in sight.

The problem is that it’s so huge that it’s difficult to get a handle on how to present it.  But anybody who wants to read a horror story worthy of Steven King should stay tuned.  In the meantime, just as a teaser, check out the comments to my post called “Old Judges, Old Times”  here: http://www.dimicklaw.net/thoughts/2009/08/23/old-judges-old-times/#comments .  You can also read Tom’s rantings and ravings (which I think might be just slightly different from my rantings and ravings) on his blog, http://www.daddydeal.info, which will explain to you in great detail Tom’s views on why you should never set foot in an Alameda County courtroom.

You see, you might not get your way.

…and the judge who was equally as afraid

A client once threatened to kill me.

Oddly enough, it wasn’t a criminal case or a family law case, but a probate case – usually the most non-confrontational of all legal matters.  It scared the bejezus out of me, but I didn’t have the clout to force the County of Alameda to protect me, as did the Honorable Judge Roderic Duncan.

*

Rod Duncan, now blessedly retired, was the darling of the family law bar – except for those attorneys who refused to appear in front of him.

A graduate of my law school at UC Berkeley, where his chief distinguishing mark was not as editor of the law review, but as editor of the school newspaper, he was appointed to the Municipal Court Bench in 1975, after which he spent ten years specializing in small claims cases before winning an election to the Superior Court.  Once on the Superior Court bench, he gravitated to family law.  Most judges hate family law.  It’s too stressful and too heart-breaking, so usually only the judges with the lowest seniority get placed in family law courtrooms.

But most judges don’t take into account the feeling of absolute power you get when you’re presiding over family law matters.  In small claims court (Duncan’s specialty), a judge can award a few dollars here or a few dollars there in a fence dispute or a fender bender.  In Superior Court, a judge might preside over a multi-million-dollar business dispute or personal injury case.  But that only involves money.

Or our hypothetical judge might preside over a murder trial and sentence a convicted defendant to 25 years to life in prison.  But that only involves years.

In family law, however, a judge has the ability to micro-manage the very lives of the litigants.  He decides whether or not a party should be working at a better job – or working at all.  He can order a party to look for work and to provide proof of ten or fifteen job applications each week.  He can order the mom to stop smoking in the house with the children or the dad to stop drinking in front of the children.  He can order the parents to go to parenting classes.  He decides what the holiday visitation schedule with the children will be, whether mom is allowed to have her new boyfriend sleep over, whether dad is feeding and clothing the children properly, who the children are allowed to socialize with, where they go to school and who pays for extra-curricular activities.

Murder trials and asbestos-related lawsuits are so much easier to deal with.  Most judges hate being asked to run people’s lives like this.  But not Duncan.  He loved it.  It was much more fulfilling than listening to petty small claims gripes all day.

*

After a few years in the family law court, he decided to become “the people’s judge” and began writing a series of self-help books, including “How to Sue for up to $25,000… and Win!”, which was the “insider’s” guide to small claims court, and “A Judge’s Guide to Divorce,” in which he demonstrated his contempt for the judicial system.

“Whatever you do, try to keep your case out of divorce court — the system stinks,” wrote Duncan, who contributed mightily to what Tennessee Williams termed the “powerful smell of mendacity.”

And in a companion piece he wrote for Nolo Press, he expressed equal contempt for the litigants who appeared before him.

“Lying under oath is an accepted element of most trials,” he wrote.  “[I]n almost every trial, at least one of the parties will step up to the witness stand, swear to tell the truth ‘so help me God’ and then sit down and violate that oath.”

Now, let’s say you’re a litigant, looking to the judicial system to address a wrong and hoping that the  system will make it right.  Do you want a judge who claims that “the system stinks” and who firmly believes that you and your opponent don’t simply have a legitimate dispute but that one of you must be lying?

I’ve done my share of trials and I swap stories with other attorneys who have done their share.  We all know that some parties lie.  But I’m not aware of any attorney – whether he won his most recent case or lost – who takes it as an article of faith that one party in “almost every trial” lies through his teeth.

But, then, attorneys are not “a breed apart,” as Duncan described himself in an interview with The San Francisco Chronicle.

*

Duncan was voted “Judicial Officer of the Year” in 1990 by the Family Law Section of the California State Bar Association, so he must have been making some attorneys happy.  There were, however, numerous attorneys and uncounted litigants who didn’t share this benevolent opinion.  For he was widely known as rabidly prejudiced in favor of women.

“Personally, I consider it malpractice to allow a male client to appear in front of Judge Duncan,” a female family law attorney once told me.  (At a client’s very first appearance in front of a particular judge, the attorney can challenge the judge on the grounds that the judge is prejudiced against the attorney or the client and that they cannot – or believe they cannot – obtain a fair hearing.  There is the rare judge who bristles at these challenges, but mostly they are accepted without argument.)

“I’ve only challenged one judge in my entire career,” a contemporary told me recently, “and that was Judge Duncan.  Actually, I liked Duncan and usually didn’t mind appearing in front of him.  But this one involved a substantial amount of money – and I was representing the husband.”

“Most of us,” relayed a Family Court Services mediator, “think he has an almost … pathological … prejudice in favor of women.”

Granted, the air in family law courts fairly crackles with emotional sparks, and much of the time one client or the other leaves the courtroom with face bright red and ears smoking.  But in my memory, only one Alameda County judge has ever been the object of organized pickets outside the courthouse or of a recall petition  – Roderic Duncan.

Duncan later claimed the recall effort and the pickets were the result of a single case in which he ruled against a monied husband.  They weren’t.

The recall failed, but Duncan retired two years later, at his earliest opportunity.  Since then, he has devoted his time to writing about being a judge which, being abstract instead of dealing with real cases, is safer for Duncan and the public both.

*

The guy who threatened to kill me was the step-son of a wealthy local politician who had died a few years before, leaving a complex will designed to reduce federal estate taxes and necessitating a complex probate when my client’s mother died.

Al was not the sole beneficiary of the estate, but he was named as the executor in the will.  And from the beginning, he determined to do as he pleased, despite my advice and frequent lectures.

But my patience snapped when he began treating the estate bank account as his own.

Most of the estate’s assets had been liquidated and placed into a bank account in the name of “The Estate of Susan Somebody,” with Al as the sole signatory.  According to the rules of probate, he was holding these funds on behalf of all of the beneficiaries under the will and had absolutely no right to any of them until the funds were ordered to be distributed by the judge.

One day I received a telephone call from a car dealer in Las Vegas.  Al was trying to buy an $80,000 sports car with a check on the estate account.  The dealer wanted to know if this was legitimate.

I exploded – internally – and, as calmly as I could asked to speak with Al, telling him to make an appointment with me as soon as he was back in town.  When he arrived at my office, accompanied by a knuckle-dragging Neanderthal whom he referred to as his “bodyguard,” I had a Substitution of Attorney form waiting for him to sign.

“Find another attorney,” I said flatly.  “I won’t represent you any more.  In the meantime, please sign this Substitution.  You’ll be acting as your own attorney until you find a new one.”

Al and the knuckle dragger glanced at each other.  Uh, oh, I thought, and the next day made a quick visit to the hardware store, bought a 30-inch piece of galvanized pipe and mounted it in the kneehole of my desk, within easy reach.

But all he did was turn up the corners of his mouth and flash a bit of teeth.  It was not a grin.

“No, counselor.  I guess you’re stuck with me.”

He was partially right.  Once an attorney has appeared in court for a client, or filed any papers for the client listing himself as the attorney, he remains that client’s attorney until the client signs a Substitution of Attorney or a judge grants the lawyer’s motion “to be relieved as counsel of record.”

A month later, I was in the probate court attending the hearing on my motion.  Sitting in the audience were Al and the Neanderthal.  He had filed no objection to my motion and didn’t come to the counsel table when my matter was called.  He just sat there.

My motion was granted and, as I walked past Al to leave the courtroom, he pointed his forefinger at me, with thumb straight up and slowly let his thumb fall like a hammer.

*

At this time, I was going through marital counseling with my first wife, from whom I was separated.  We were trying to work things out and get back together.  We had an appointment that evening.

“I really don’t feel like talking,” I started out.  “I don’t even want to be here tonight.  This has not been a good day.”

Of course I caught hell from both of them.

I was still trembling from the experience of three or four hours before – and with good reason, as I found out later.

“A client threatened to kill me today.  Doesn’t that matter at all?  I just don’t think I’m able to be all touchy-feely tonight.  Can’t either of you understand?”

No, it didn’t, and no, they couldn’t.

I don’t even remember if I stayed for the whole hour or got up and walked out.

*

Al evidently continued to raid the cookie jar and a few months later there was a hearing to determine whether to remove him as executor of the estate.  He evidently didn’t take it well, caused a disturbance, was physically restrained by the court attendant and was found to be in possession of a handgun, for which he was arrested.  I have no doubt that he was stupid enough to have used it, although not smart enough to have used it effectively.

*

Those were in the days before there were metal detectors at the entrance to all of California’s courthouses.  It would be three or four years yet before they were slowly installed, prompted by a minuscule number of courtroom incidents statewide.  (The metal detectors wouldn’t, of course, have stopped the one angry litigant who stabbed his attorney in the eye with a pencil.)

But in the meantime, I had to make an appearance in one of the two family law courtrooms in Oakland.  Surprise!  In one wing of one floor of one of two buildings full of courtrooms in downtown Oakland, there was a metal detector.  And one of the three courtrooms in that wing was presided over by none other than Roderic Duncan.

He was pretty fearful for a judge who claimed that only one rich husband was behind the recall effort and all of the picketing.  How he swung this favor I’ve never learned, but I’ll bet the story he told the county about who was “out to get him” bore little relation to the story he told to the newspapers.

In which I am magically transformed from

The World’s Greatest Attorney to The World’s Worst

The Volunteer Legal Services Corporation (VLSC), a subdivision of the Alameda County Bar Association, recruits attorneys who offer to provide free or low-cost legal help to low-income clients left stranded when President Reagan gutted Legal Aid.  Every year they recognize the attorneys who provide more than 50 hours of pro bono services by presenting them with the Wiley Manuel Award (named after a distinguished Alameda County jurist.)  I won the award one year – all due to one client.

But people tend not to value what they receive for free.

*

The poor kid was about eight years old when he tried playing with matches one day and lit his highly flammable pajamas on fire, leaving him with third-degree burns over ninety percent of his body.  The lawsuit wouldn’t be settled for some years yet.

Aside from the excruciatingly painful baths and skin grafts, he spent the next several months in a “pressure suit” and having to do painful stretching exercises every day to keep his re-growing skin from tightening and restricting his mobility.

Unfortunately, his parents were divorced and too immature themselves to cooperate over the boy’s rehab.  Father blamed mother for the accident and mother was convinced that father wasn’t capable of raising their son.  It’s not an untypical story.

Father was a bit of a control freak, who insisted that the boy do his exercises on schedule and wasn’t softened by the kid’s tears.  Stacy, the mother, who had primary custody, didn’t usually follow through on the regimen.  She was too busy with her own life to be able to give her son the attention he needed.  All she knew was that the boy was “her dolly” and she wasn’t going to share him with anyone.

Father filed a motion for change of custody; VLSC referred Stacy to me and I agreed to take the case.

There followed several hearings and many mediation sessions with Family Court Services.  The mediator went well beyond what they generally have the time or budget to do, interviewing not only mom and dad, but the boy’s doctors, mom’s family, dad’s family and anyone who could help her formulate a difficult and potentially heart-breaking recommendation to the court.

During these hearings, I grew to like dad less and less.  So I fought for Stacy, even though I believed at the time that she was only the lesser of the two evils.  Hour after hour of conferences and court appearances, until I had racked up well over $10,000.00 in free legal services.  (My opposing counsel, now retired, and for whom I had the greatest respect, was also working at a severely reduced hourly rate.)

Finally, the court date arrived at which the mediator’s report and recommendation would be presented to the parties and the court.  As is fairly usual, we didn’t see it ahead of time and went into court with no idea what to expect.

The recommendation was to transfer custody to dad.  That afternoon.

The report was several pages long, detailing the research that had gone into it, the difficulty involved in making the recommendation, and ending with a well-reasoned analysis of how the conclusion had been reached.  In a nutshell, it was tragic that the kid’s parents couldn’t work together, but his physical health meant that he had to be given to his father.

I did my best, but the judge adopted the recommendation.  Stacy was livid and began screaming in the courtroom at the top of her lungs.  I practically dragged her out into the corridor and attempted to calm her down.

No use.  She threw her purse the length of the hallway and began ranting that she was going home immediately to grab the boy and disappear.  I was beginning to be more than a little frightened at her hysterics and at the thought of her taking her son away from his doctors.

When my opposing counsel came out of the courtroom, Stacy had worked herself up into a fine shape.

“I’m going home right now!  I’ll get him out of school and take him to Mexico!  He’s not going with that son of a bitch!  I’ll make sure they never find us!  When he gets there to pick him up, we’ll be long gone!”

“Steve, I’m going back in to tell the judge about this,” opposing counsel warned.  I nodded.

And I held Stacy there.  Under the guise of trying to calm her down, but actually physically restraining her until the court attendant (they’re not called bailiffs or marshals anymore) got there.

“Stacy!  Listen to me!  You can’t do this!  Just calm down for a minute!  You’re going to get yourself in big trouble!”  All the while holding her by the shoulders and blocking her from leaving.

The court attendant finally came out, took her firmly by the arm and escorted her back into the courtroom, where the judge ordered her to sit in the jury box and advised her ex-husband to go get the boy immediately.

But did this stop her screaming?  Not a bit.

I sat with her in the jury box, where I had a prime view of the court reporter’s laptop computer whose software automatically transcribed everything the reporter was taking down.  Long afterwards, it seemed funny.

“You can’t do this to me, you asshole!” Stacy screamed, and the computer screen read You can’t do this to me, you asshole.

“Stacy, shut up!” I snapped, worried that the judge would hold her in contempt and have her carted off to jail, and the computer screen read Stacy, shut up.

*

I could no longer justify representing Stacy.  She had shot all of her credibility with me and I was willing to accept the mediator’s recommendation.

But less than two weeks later, she was on the telephone again.

“I want to make a motion to have the judge reconsider his ruling,” she said.  “You did a great job for me and I want you to file the motion.”

“I’m sorry, Stacy,” I said, as calmly as I was able.  “But I’m finished.  You’ll have to find another attorney.”

And the screaming began again.  “You’re the worst attorney I’ve ever had!  You didn’t do anything for me!  You fucked up my case and made me lose my son!  I’m going to report you to the State Bar!”

Half an hour later, Stacy’s mother was on the phone, with but a variation on a theme.  Many clients expect their attorneys to work magic, but the speed of this transformation from best attorney to worst must certainly be some sort of record.

*

This was not the only case that demonstrated to me that the most demanding clients are those who aren’t paying.

But at least I won the Wiley Manuel Award.  More than 50 free hours in one year.  And all for one client.

File under:  “No Good Deed Goes Unpunished”

Helen had a 15-year-old son from her first marriage and a six-year-old son and four-year-old daughter from her second marriage.  She went through a rough period during her divorce from the older boy’s father, and agreed that father, who lived in New Jersey, could have custody of the boy.

Father was a certified bastard, who made the son’s life miserable and who was constantly after the New Jersey authorities to collect child support from Helen.  But the son of the second marriage had been diagnosed with both Attention Deficit Disorder (ADD) and Attention Deficit / Hyperactivity Disorder (ADHD), and the girl was also showing early signs of one or the other.  The boy, Rico, was a full-time job for Helen.  He couldn’t be left alone with his younger sister, day care facilities wouldn’t have him, babysitters wouldn’t come near him and Helen had to volunteer as a classroom aid to keep an eye on him in school.

None of that mattered to the child support division of the Alameda County District Attorney’s Office.  They – or at least one of them – thought she should be working.

New Jersey had ordered her to pay child support, which she was unable to do.  At New Jersey’s request, Alameda County had filed several motions, asking that she be held in contempt of court for non-payment of child support.  But before a person can be held in contempt of court for failing to obey an order, the other side must prove that the person had the ability to obey the order.  And, having no income, Helen was unable to comply with the support order.

So the local DA filed a request for what is known as a “seek-work order,” asking that the judge order her to start looking for work and to report periodically to the court about all of the job applications she had filled out.

At our first hearing, I took the female Deputy DA aside and tried to reason with her.  “Did you read the declaration we submitted?” I asked.

“Yeah, I read it.  And I really don’t care,” she snapped.  “She needs to be paying child support.”

*

This case had barely begun when Helen brought the older boy to my office, allegedly at his request.  She said the boy had been spending his summer vacation in California with her and was scheduled to fly back to New Jersey within a couple of weeks.  I saw a huge red flag waving in front of me and asked Helen to wait outside while I talked to Derek behind closed doors.

“I’ve been cutting and burning myself,” he started off tearfully, showing me the scars on his arms.  “I don’t want to go back to my dad.  I want to stay here.”

Over the next few weeks, a story began to emerge that was much larger than what the boy knew.  Helen and her first husband had evidently each had a pretty wild, sex- and drug-filled youth which continued after they hooked up together and well into their marriage.  Dad evidently saw the light, quit his evil ways and eventually divorced Helen because she hadn’t followed him on the straight-and-narrow.

Although Helen did later quit her partying and drug taking, Dad never ceased telling Derek what a terrible person his mother was.  He also rode strict herd on the boy, monitored all of his friendships and telephone calls, used corporal punishment and warned him repeatedly of the consequences he would suffer if he ever showed the slightest sign of turning out like his mother.  The poor kid was practically living in a labor camp.

*

California had no jurisdiction over the custody matter at that point.  New Jersey did.  Normally, the law would not allow Helen to ask a California court to change a custody order made in New Jersey.  But the Uniform Child Custody Jurisdiction Act admits some narrow exceptions, and we tried to tailor our motion to meet one of those exceptions.

The UCCJA required the California judge and the New Jersey judge to talk on the telephone and attempt to work out the best solution for the welfare of the child.  After this conference, it is hoped that one judge or the other backs down.

Not this time.

During one of these negotiating sessions, I was invited into the court commissioner’s chambers to sit in on a speakerphone conference with New Jersey.  Nothing I said pleased the East Coast judge – not that I was allowed to say all that much.

“Judge, the boy is so miserable that he’s cutting himself – “ I began.

“And just how do you know this counselor,” she sneered.

“He told me, your honor.  And showed me the scars on his – “

“And just where did this exchange take place?”

“In my office, judge.”

“In your office!?”

“His mother wasn’t there, judge,” I snapped back, not fully disguising the note of impatience (lack of due respect?) in my voice.  “I sent her outside.”

“Well, that’s just fine!  I suppose that makes all the difference in the world.”

I admit I have had more pleasant experiences in my career.

*

The Alameda County court commissioner was a pretty new hire.  She’d only been on the bench a very few months and had no prior family law experience.  She also found it hard to stand up to New Jersey.  But the lady had guts, bless her, and after hearing all the arguments and doing a bit of research on her own, she announced, “I’m taking jurisdiction.”

The commissioner ordered an immediate change of custody, Derek got to stay in California and father was ordered to pay child support to Helen.  That left only the issue of the seek-work order to be decided.

*

In the meantime – and not really expecting it to succeed, but merely to call to the commissioner’s attention the egregious conduct of the District Attorney’s office – I filed a motion setting out all of the history of the case and asking that the County of Alameda be ordered to pay Helen’s attorney’s fees because of the DA’s extreme bad faith in filing the seek-work motion.

Of course, there was no way in hell a judge or commissioner would ever grant such a request and I knew it.

At our last hearing, the female deputy’s boss appeared for the DA’s office.  Terry Symonds-Bucher, a seasoned veteran and a straight-shooter.  We agreed that the motion for a seek-work order would be dismissed, as would my motion for attorney’s fees.

When the commissioner called Helen’s case, she asked if it was true that both motions were to be dismissed.

“That’s correct, your honor,” I replied.  But I couldn’t resist adding, “And if Mr. Symonds-Bucher had been on this case from the beginning, we wouldn’t be here today.”

*

Helen later disappeared, leaving me holding the bag for more than $3,000 in unpaid fees.  She deeded her interest in the family home over to her then-current husband.  I have no idea what happened to the kids.

(The Senator, the Judge and the State Bar – Which one would you trust?)*

Can I see a show of hands?  How many of you know the following:

1.  What is the Statute of Limitations on a written agreement?
2.  Would you recognize a waiver of the statute if you saw one?
3.  Would you trust a document which your divorce attorney suggested you sign?
4.  Does the California State Bar Association represent the consumer?

If your hand went up for two or fewer of the above questions, you’re fairly typical.  Here are the short answers:

1.  Four years.
2.  Probably not.
3.  Sure.  Probably.  Unless, of course, my attorney was former State Senator and retired appellate court justice John W. Holmdahl.
4.  This is a trick question, right?

Here’s the story, which contains the long answers.

John W. Holmdahl was a California state senator from the East Bay who served in the legislature from 1973 to 1982.  Most California legislators in those days continued to maintain their day jobs and Holmdahl was no exception.  He was an attorney, practicing a little bit of this and a little bit of that.  To his credit, he didn’t always demand large retainer fees up front, but would accept IOUs or promissory notes from his clients, promising to pay his fees at so many dollars per month until fully paid.

Now hold onto that thought for a moment and allow me a brief tangent.  I’ll return to it shortly.

***

The California Code of Civil Procedure sets out various time limits in which a lawsuit must be filed, varying from ten years down to three months, depending on the type of suit.  These are called statutes of limitations and they generally begin to run either when there is a breach of an obligation (i.e., when a scheduled payment is not made) or when the victim discovers that he has a right to sue.  (Please don’t pick on me for trying to simplify the concept.  I’m after bigger game, here.)

Theoretically, according to appellate cases in California, big boys and girls are perfectly competent to enter into a contract which waives the applicable statute of limitations.  In other words, you loan me $10,000.00 and I agree to repay you at the rate of $75.00 per month, but if I stop paying, you can come back 15 or 20 years later and sue me.

Makes an awful lot of sense, right?  I agree with you, but the local judge didn’t.

***

Bernice had gone to The Honorable John W. Holmdahl in the mid 1970s and asked him to represent her in her divorce.  She had little money and a limited income.  No problem, said Sen. Holmdahl.  Just sign this promissory note saying you’ll pay my bill in full within a year.  No, no, don’t bother to read it.  You do trust me, don’t you?

Bernice signed the promissory note and waiver of the statute of limitations and Holmdahl took the case.  After he sat on it for several months, accomplishing nothing, she went to another attorney who finished up the divorce for her.  Six or seven years went by and she had totally forgotten about Holmdahl until she was served with a Summons and Complaint for the unpaid balance on the promissory note.

(Note: Today, there is mandatory fee arbitration before an attorney can sue his client for unpaid fees.  There were no such provisions back then.)

It seems that the Hon. John W. Holmdahl, Member of the California Senate, had been transformed overnight into the Hon. John W. Holmdahl, Justice of the First District Court of Appeal, bypassing the usual stint as a trial judge.

It certainly pays to have made friends in high places.

Holmdahl was required to close down his law practice, so he assigned all of his accounts receivable, including those six or eight or ten years old, to another local attorney, who proceeded to file suit on them.

That was when Bernice was referred to me, a brash kid in his early 30s, fairly fresh out of law school.  I wrote an extensive brief, arguing that it was (or, at least, should be, against public policy to ask anyone to waive the statute of limitations.  And further still, I argued, for an attorney, with his superior knowledge of the law, to ask a client to do so was the grossest overreaching and the attorney should be, if not horsewhipped (okay, I really didn’t say that, but I implied it), at least severely censured.

But you didn’t get elected to the California legislature or appointed to the bench in those days without being an integral part of the Old Boys’ Network.  The judge who heard the case had already made up his mind that his colleague and Old Boys’ lodge brother was as pure as the Tahoe snow.  Plaintiff’s attorney didn’t – knew he didn’t have to – say a word.  The judge leaned his chin on his fist and watched me with half-closed eyes.  Until, that is, I requested that the trial be continued to give me the chance to call a press conference.

I’ve never since seen a sleepy judge rise to his feet as quickly and as threateningly, and I hope I have never since beat such a hasty retreat or offered such an abject apology for “threatening” to exercise my First Amendment rights.  It reminds me today of the passage from “Catch-22:”

Morale was deteriorating and it was all Yossarian’s fault.  The country was in peril; he was jeopardizing his traditional rights of freedom and independence by daring to exercise them.

***

So Bernice lost and had to pay the money, and I slunk away with my tail between my legs, never to cause anybody any trouble again – for about a day and a half.

If I had been righteously indignant at the very idea of the lawsuit being filed in the first place, I was livid now.

My first port of call was the State Bar of California, to whom I both wrote and telephoned about the unethical practice of an attorney requiring a client to sign a promissory note containing a waiver of the statute of limitations.

Gee, we’re awfully sorry, said the nice young gentleman from the State Bar.  But Senator Holmdahl isn’t an attorney any more.  He’s a judge and we don’t have any jurisdiction over him.  You should really contact the Judicial Nominees Evaluation Commission or the Commission on Judicial Performance.

Gee, we’re awfully sorry, said the nice young lady from the Judicial Nominees Evaluation Commission.  We only evaluate people who are proposed for judicial appointments.  Once they’re on the bench, we don’t have any jurisdiction over them.  You should really contact the State Bar or the Commission on Judicial Performance.

Gee, we’re awfully sorry, said the nice young gentleman from the Commission on Judicial Performance.  We can only evaluate the conduct of judges sitting on the bench.  We don’t have any jurisdiction over what they did when they were attorneys.  You should really contact the State Bar or the Judicial Nominees Evaluation Commission.

I wrote again to the State Bar, expressing in the most gentle terms my great sorrow and disappointment in that esteemed body, indicating that I would pay my yearly dues and follow their rules as best I could…but that I considered their ethics to be several notches below mine and that I would remember the incident if I ever received an ethical complaint from them.  (Note: I never have.)

Funny thing.  I got a reply back from a staff member (must have been a new kid), asking me to send them my concerns in writing again.  Funny thing…I did.

Gee, we’re awfully sorry, read the second reply from the State Bar, but…

***

*Question (from above): The Senator, the Judge and the State Bar – Which one would you trust?

(a)  Are those my only choices?

(b)  The Brooklyn Dodgers.

(c)  42

(d)  None of the above.

(e)  All of the above.

(This is what’s known as a “gimme” question.   Full credit will be given for any answer; extra credit for a short essay.)

(Pick your judges wisely)

Manoucher was retired from the Irani postal service, living on a tiny pension that was barely enough to feed himself on, let alone pay for medical care.  He did, however, have three strapping sons who had all emigrated to America.  The youngest worked at this and that, trying to support his wife and son; the middle one was an electrician making fair money, and the oldest had become a successful restaurateur.

The two oldest, being dutiful sons, hatched the idea that the youngest should fly to Dubai, drive to Tehran, finagle the old man out of Iran and bring him back to California.  Tom (Americanized name), the oldest, had it all figured out.  “He can spend a couple of months with me, a couple of months with Bob and a couple of months with Sean.  It won’t be a problem for anyone.”

It sounded like a great plan, except it didn’t even last for the first four months.  Dad was well into his 80s, spoke nothing but Farsi and the older brothers’ families didn’t really want him hanging around.  The grandkids spoke no Farsi, the old man was a very confused stranger in a strange land and the wives were embarrassed about the shabby-looking father-in-law.  All in all it was, to put it delicately, inconvenient.

Sean, the youngest, lived in an apartment with his wife and baby, and had no room for Dad.  Sean’s wife’s mother, however, had a mobile home and agreed to take in Manoucher.  When the relocation occurred, Tom and Bob stopped all contact with their father and refused to contribute to his support.  Sean was left begging doctors and dentists to treat Manoucher while contributing, as best he could, to the old man’s expenses for housing, food and clothing.

***

There is a little-noticed provision in the California Family Code (back then, a part of the Civil Code) that says “an adult child shall, to the extent of his or her ability, support a parent who is in need and unable to maintain himself or herself by work.”  Evidently, nobody paid much attention to this statute before Manoucher came my way, as I was able to find only a sprinkling of appellate cases interpreting it – and none dated within the last 30 years or so.  But I filed the action anyway.

***

It was slow going at first.  And then it got even slower.

When I filed the support action, the clerks had never heard of such a thing.  It didn’t fit within the parameters their computers could deal with.  So we summoned the supervisors, who were equally at a loss.  Good thing I had thought to bring a photocopy of the statute with me or nobody would have believed me at all.

It was finally decided to assign the case to a family law department, and I was given a hearing date.  On the date of the hearing, however, the judge decided it was not properly a family law case and ordered it transferred to the probate department.  Two months later, the probate judge ordered it transferred back to family law.  Back in the family law department, we are now probably four or five months into the process and I haven’t yet had a chance to make a single statement on the merits of my case.

***

We were finally able to go to trial, and Tom and Bob were ordered to pay monthly support for Manoucher.  But this was approximately two years later, so I’m getting ahead of myself.

***

This particular family law judge and I got off on the wrong foot in a couple of cases and I was left steaming.  What I dislike most about family law is its arbitrariness, its capriciousness, its results which depend on which judge you draw.  And this one shot from the hip.  She was sarcastic, caustic and acerbic and she would interrupt an attorney before he had hardly begun his argument because she KNEW what he was going to say and that it was going to be wrong.

And she was damned smart.

Over the next couple of years, I developed a great respect for this judge, and we learned to get along together.  I am second to none in my admiration of her intellect.  The problem was – and still is – that she isn’t quite as smart as she, herself, thinks she is.*

***

In the judge’s chambers during a settlement conference, she indicated that if this matter went to trial, she wouldn’t even consider ordering parental support if the parent were not a citizen of the United States.  (During the trial with this judge’s successor, I successfully showed that the law did not require the parent even to be a resident of the United States.)  She made it very clear how she felt about immigrants coming over here and abusing the system.

But Sean had another year or two before he could become a citizen and he had to become a citizen before he could sponsor Dad.  So I did what lawyers do best: I continued the case.  Again and again.

***

In Alameda County, at least, judges only have to sit in family law for a year or two before somebody with less seniority becomes a judge and gets stuck in family law.  The former family law judge, then, gets to go to downtown Oakland and do felony trials, which seems to be what all judges want to do, anyway.

So my judge moved up to felony trials (which wasn’t by far the end of her climb*); a new judge – obviously from a different political party – was assigned to her department; we went to trial; the hotshot San Francisco defense attorney stomped out of the courtroom when the trial was over; Tom and Bob were ordered to pay support to their father, the old man was able to get his new teeth and Sean finally got some relief.

Moral?  Our parents supported us.  Maybe not as well as we would have liked, but still.  And it’s not just a moral obligation, but a legal obligation, that we support them.  Think about it.

Moral II?  It ain’t what the law says, it’s the judge that you draw.

_____________________

*She’s now a justice on the California Supreme Court.  Neither her politics nor her sarcasm have changed, but she’s a little more circumspect in her written opinions and I don’t find myself disagreeing with too many of them.

(A cautionary tale for those contemplating divorce…or those contemplating Barry Bonds.)

On my first day of law school, the visiting professor from the University of Michigan who was to teach us property law walked into the lecture hall, placed a chair up on the front table, its back facing the students, straddled it backwards and began to act as if he were riding a horse.

“Post is riding to the hounds,” he said, slapping his imaginary horse with an imaginary whip and graphically illustrating the 1805 New York case that we had been assigned to read for that day’s class, “in the wild marshes of Queens. [Pause for laughter from the students from New York.] He’s hot in pursuit of his fox.  Suddenly, out of nowhere, Pierson appears, shoots the fox and claims it as his own.”

Post then sued Pierson, claiming the fox was rightfully his (lawyers must have been cheap in those days), and the trial court ruled in favor of Post.  Pierson appealed, which led the appeals court into a lengthy dissertation on the history and the nature of “property.”  Did the fox “belong” to Post because his dogs had roused him and he was chasing him, or did it “belong” to Pierson, who ultimately bagged him?

Although I later practiced a fair amount of property law, I never saw Pierson v. Post cited in a brief until, some twenty-five years later, it figured prominently in a lawsuit over a baseball and tangentially in a divorce.

* * *

When baseball star Barry Bonds broke the single-season record for home runs in October 2001, everyone knew he would probably hit homer No. 73 that season.  Everyone knew the record ball would fetch top dollar at auction and everyone in the stands at each of Bonds’ games was hoping to be the one to catch the million-dollar ball.

When Bonds smashed the winning ball, Alex Popov (we can call him “Post”) caught it.  But so many people were also reaching for the ball, and pushing and shoving each other, that Popov lost control of it and Patrick Hayashi (we can call him “Pierson,”) successfully retrieved it.

Popov hired San Francisco attorney Martin Triano to sue Hayashi, claiming the ball was rightfully his.  The case dragged on for about two years, during which time Hayashi made offers to Popov and Triano to sell the ball and split the profits.  Triano and his client rejected all of these offers, despite the Hayashi’s attorneys having cited the seminal case of Pierson v. Post.

(By the way, Pierson won on appeal.  The court ruled that chasing, or momentarily catching, a baseball…er, fox…isn’t sufficient for ownership.  You have to bag it to own it.)

Triano’s and Popov’s stories later differed as to who insisted on going full steam ahead, but there is no indication in any of the news stories that Triano ever told his client, “Look, Alex; you’ve got a fair chance of losing this thing and your attorney’s fees are climbing by the day.  Why do you want to be such a damned fool as to roll for all or nothing?”  At $400 or $500 per hour, Triano wasn’t about to give his client such a lecture.

As all sports fans know – and it was no particular surprise – the private judge hired to hear the case pulled a Solomon and ordered the ball sold and the proceeds split.  It brought $450,000, and Popov’s share of $225,000 was less than half of Triano’s fees of $473,500.  Had Hayashi’s offer been accepted, and had the ball sold before it became stale news, rather than legend, the proceeds would most certainly have been considerably higher.

* * *

What does this have to do with divorce?  I’m getting there.

Before the baseball trial was concluded, I was retained to file for a dissolution of marriage on behalf of a fellow Castro Valley resident.  His wife hired an associate of Triano’s, Mark Byrne, to represent her.  Wife had already gone through two or three attorneys – looking for a bulldog – before settling on Byrne.  Wife had also earlier made an offer to Husband to accept a certain amount for her interest in the family home and that each party would keep his or her own retirement plans and bank accounts.  My client had not responded to the offer because he had not yet hired an attorney and didn’t know whether or not it was fair.

After I filed the petition and a response was filed on behalf of Wife, I immediately wrote to Byrne, acknowledging that his client’s offer had not been previously accepted, but stating that we were prepared to accept it, if it were still on the table.

Oh, no, Byrne wrote back.  First we have to have all of the pension plans valued, agree on an appraiser to appraise the house, get income figures from each client, value the automobiles, value the bank accounts as of the date of separation, value the salt and pepper shakers and on and on.  I could see the dollar figures spinning like a cartoon cash register.

Now, both Husband and Wife knew – without knowing exact amounts – that Wife’s various retirement plans were worth considerably more than Husband’s.  Maybe Wife changed her mind about her earlier offer, but in light of later developments it is more likely that Byrne encouraged her not to revive her earlier offer because you never know.  How do we know you won’t lose out if we don’t do things by the numbers?

(Doing things “by the numbers” or “the accepted way” is attorney speak for “I smell lots of billable hours here.”  On the other hand, “let’s cut through the bullshit” is frequently attorney speak for “why pay me $10 to gain a $5 advantage over the other side?”)

(Wife also took a leave of absence from her well-paying, public sector job to go to Florida, supposedly to care for her ailing step-father, despite the fact that her mother and her sister were both already on the scene, and Byrne set a court hearing to ask for temporary spousal support because his client had no income.  The judge gave that argument short shrift.)

So we paid a lot of money to have all of the pension and retirement plans valued by experts.  We burned through thousands and thousands of dollars worth of attorney’s fees gathering documents, attending depositions, responding to written interrogatories, and the like.

We had the house appraised, and Wife’s interest was only slightly higher than what Husband had initially offered to pay.  Byrne didn’t like the appraisal, insisting instead on meetings with both attorneys and the appraiser, and finally, on a full trial regarding the “true” value of the house.  I estimated the combined attorney’s fees on the house issue alone to be more than $10,000, and in the end the judge found its value to be only $10,000 higher than the appraiser testified.

All told, what should have been a $2,000 – $3,000 divorce for my client ended up costing him more than $20,000.  Wife spent more than $30,000 on her attorney, while losing more than $50,000 in retirement benefits that were awarded to Husband – and which Husband had been willing to give up.

Can we split that baseball in half now?

Unfortunately, that wasn’t quite the end.  After the trial had been over for some months, Byrne decided that the division of two California Public Employees’ Retirement System (CalPERS) plans had been done improperly and filed a motion to modify the judgment.  Although he went to great lengths to explain his reasoning, his math just didn’t seem to add up.  It seemed to me that what he was asking would actually take away from his client’s eventual retirement benefits in favor of my client.

So I contacted an actuary and pension plan expert in San Francisco whom I have used several times before and ran the question past him.  He confirmed my suspicions.

Then the lightbulb went on over my head and Husband and I hatched a plan.  If Wife is foolish enough to let Byrne con her into filing this motion, why should Husband have to pay attorney’s fees also?  Husband then “fired” me as his attorney and began representing himself.  Wife’s fees kept running, but Husband’s did not.

Just a very few days before the scheduled court hearing, Husband wrote Byrne to say he would cave in and that Byrne could have his modification.  The modification went into effect, Wife had  spent another two or three thousand dollars on attorney’s fees only to award a larger portion of her pension to Husband.

When the dust settled, I wrote to Byrne, pointing out the disservice he had just done his client.  He replied that my letter was “self-serving.”  I suppose he had to; he could hardly admit to his client that he had charged her for reducing her eventual pension benefits.

* * *

Triano sued Popov for nearly half a million dollars in attorney’s fees (which, even at $400 per hour would mean exclusive, full-time work on this case for almost six months, which I find quite hard to believe.)  It is unknown whether he ever collected.

Hayashi’s attorneys, on the other hand, cut their fees to nearly nothing because “We…agreed that Patrick should walk away with something.”  A San Francisco sportswriter picked the two attorneys as Sportsmen of the Year.