Monthly Archives: October 2011

Grandma in The Devil’s Den (assumption of risk/happy halloween)

What happens when an 84 year-old goes through a haunted house with her family members and gets hurt?  A lawsuit happens.  I would love to have been the judge writing this opinion and I think the judge who did write it enjoyed himself a bit.  The attorneys all argue about the following:

1) Did the haunted house operator provided enough supervision?
2) Was the victim was pushed by other scared patrons?
3) Did the victim fall down because she was scared?                   
Assumption of Risk
The judge says all of this is unimportant.  He says she assumed the risk when she entered the haunted house and assumption of risk bars any recovery.  In California, this type of “assumption of risk” is termed “primary assumption of risk”, in which the defendant owes no duty to protect the plaintiff from a particular risk of harm, and the lack of duty operates as a complete bar to recovery.  The case law regarding primary assumption of risk is rather developed in some areas (like competitive sports) and remains undeveloped and unclear in other areas, leading to unpredictability.  Whether or not primary assumption of risk operates as a bar to recovery depends on the context and the defendant’s role in, or relationship to, that context. 
The judge in this particular Louisiana case analogizes walking through a haunted house to walking through a crowd at a horse race, and finds assumption of risk applies.  So why does he talk about the haunted house in some detail?  Because it’s fun.
Taken from the case:
The facts are that two vacant houses in the City of New Orleans were made to take on an appearance of a haunted house. The rooms of both houses were decorated with ghosts, goblins, coffins and various other Halloween paraphernalia, so designed to frighten or startle the patrons. There were also accompanying sound effects which one would except at such a carnival. An admission charge was made for each who entered. Patrons entered the first of the two houses and made their way in single or double file from room to room, while viewing the various exhibits as they proceeded. They exited the first house, proceeded through a cemetery area provided by a yard separating the two houses and into the second house. The final room which the patrons visited was known as the ‘Devil’s Den.’ It was in this room that plaintiff was injured. As is to be expected, the light inside the room was dim. While everyone gazed toward the make-believe devil’s den, a person disguised as the devil was mechanically projected approximately six to ten feet into the room on an overhead track. Plaintiff was either jostled (plaintiff’s version) to the floor by the estimated 25 patrons in the room, or she fell (defendant’s version) in trying to get away from the area when the ‘devil’ was projected into the room.
Plaintiff claims that the failure to provide employees in the ‘Haunted House’ to supervise and to police the movement of the patrons constituted negligence. We find no merit to this contention. The trial judge, in written reasons, made the following conclusions of fact:
‘There were at least three members of the sponsoring group stationed at the entrance to the ‘Devil’s Den’ to limit the number of people who went in. There was also a special policeman on duty inside to control the movement of guests in and out. The room was of spacious dimensions, and no more than approximately 20 people were allowed in the room at any given time.’
The record supports these factual determinations. Nevertheless, it is clear in the instant case that plaintiff’s assumption of the risk in going through this attraction bars her recovery. Particularly is this true since there is no claim or suggestion that the defective condition of the premises or unforeseen event caused the accident, other than the jostling by the young patrons.
Whether Mrs. Bonanno fell as a result of being jostled by the crowd or in a frightened attempt to get away from the ‘devil’ is unimportant. She obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways . It would be inconsistent in this case for this court to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.

Bonanno v. Cont’l Cas. Co., (La. Ct. App. 1973)285 So. 2d 591, 591-92.
(Sidenote:  The actual event took place in 1968, the same year Halloween that Michael Myers supposedly first killed in the movie Halloween.)

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Don’t Be Gullible (please!)

Much of the time that attorneys and law students read cases, they focus on gleaning the law.  Sometimes the facts are so absurd—they stand on their own.  When I first read this case
1)      I couldn’t believe “Dr. Stevens” was so brazen;
2)      I couldn’t believe the victim was so gullible;
3)      I couldn’t believe there were previous victims;
4)      I couldn’t believe there were subsequent victims of this same scheme;
5)      I couldn’t believe this wasn’t rape (at the time).

The Facts (directly from the case):

Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as “Dr. Stevens” and said that he worked at Peninsula Hospital.
“Dr. Stevens” told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.
“Dr. Stevens” further explained that there were only two ways to treat the disease. The first was a painful surgical procedure—graphically described—costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, “Dr. Stevens” explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, non-surgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the “doctor” suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the non-surgical alternative and consented to intercourse with the mysterious donor, believing “it was the only choice I had.”
After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted “Dr. Stevens” by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called “Dr. Stevens” to give him her room number.
About a half hour later the defendant “donor” arrived at her room. When Ms. R. had undressed, the “donor,” petitioner, after urging her to relax, had sexual intercourse with her.
Boro v. Superior Court, (1985) 163 Cal. App. 3d 1224
The Result
At the time “Dr. Stevens” committed these acts, it technically wasn’t rape under the California penal code at the time.  Within months of this case, the state legislature amended the California rape statute to include “fraud in the inducement.”  Sad for this victim.  Sad for the previous and subsequent victims.  Sad there are people like this out there.

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Black and White (race and marriage)

Each person’s view of marriage is different.  It’s informed by one’s own familial experience (i.e. “I don’t want to get married because my parents divorced”).  It’s informed by culture, religion, and politics.  However, increasing evidence indicates that race has a dramatic impact on marriage.  First, how drastic is the racial disparity in marriage?  Second, how can we explain that disparity?  Third, what can we do about it?

Racial Disparity
In a recently published book, Is Marriage for White People?  How African American Marriage Decline Affects Everyone, Author Ralph Richard Banks describes the way race affects marriage rates.  A review of Banks’ book is available here.  Previous reports regarding comparatively low marriage rates amongst blacks focused on low rates amongst the black lower class.  Banks finds that the low marriage rate is consistent for blacks across all socioeconomic strata.

An article last year in the Economist (found here) cites a study which found a drastic difference in marriage between blacks and whites, differences in prolonged marriage, divorce rates, and birth to single mothers.  In addition, the study found that differences in marriage were also associated with differences in economic mobility.

Explaining the Disparity
Chalandra Bryant published a study, Understanding the intersection of race and marriage: Does one model fit all?  Bryant’s study includes a conceptual framework to help illustrate why there is a racial marriage disparity.  An abstract of her article including a look at this conceptual frame is available here.  Bryant explains racial differences in marriage as resulting from stressors that both interact and multiply—and are unique to the African American experience.

Banks explains the racial disparity in marriage rates as a result of black women’s inability to find a committed partner in their lives–essentially blaming black men.  In addition, the fact that Banks notes res reduced marriage rates for blacks across socioeconomic strata discounts financial strain as a cause of the disparity.  Meanwhile, Bryant includes financial strain in her model.

Plan of Action (what can be done?)
Banks states (controversially) that black women should marry outside their race to increase their marriage prospects.  Bryant views individual perceptions of community disorder as affecting their behavior within relationships.  So, if community disorder is quelled, hostility within black relationships will be reduced, and as a result marriage will increase in value. 

Banks’ solution seems white-centered and…even racist.  

Bryant’s framework seems like a legitimate illustration of how stressors—unique to the black experience influence marriage and divorce within the community.  However, her solution of reducing community disorder seems to be a proxy for making black communities more white.  

There is a problem, we might understand what is causing it, but no one really has a solution.

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Filed under Family Law

Collaborative Practice (Malpractice?)

All too often the divorce process is destructive.  Spouses emerge at the other end with almost half of what they had before and they like their spouse even less.  Collaborative law seeks to avoid unnecessary adversarial conflict and find a solution that is best for all parties.  The other benefit is that it is generally cheaper for everyone.  Many times litigants can “make the pie bigger” by discovering the underlying needs and objectives of all parties.  Our entire legal system compensates everything with money damages, but many times looking at what people want that money for—or why they want it, can reveal better ways of resolving disputes.  Sounds good right?
Collaborative representation is not for everyone.  One attorney writes on her blog: “If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you.”  That’s fair.  But when does collaborative practice become MALpractice or an ethics violation? 
(Yes, attorneys please send me hate email for posting this.)
California attorneys must follow the CA Rules of Professional Conduct.  Rule 3-110 requires every attorney to act with reasonable diligence.  Many cases state that this diligence also includes “acting with dedication and deal, taking whatever lawful and ethical steps are available to vindicate a client’s cause.”  Uh oh.  That required dedication and zeal may yield the exact destruction that the collaborative attorney is trying to avoid. 
The ABA Model Rules (a national standard) allow for attorneys to limit their scope of representation, such as limiting representation to collaborative matters.  California has no such rule, but some case law supports allowing attorneys to limit the scope of their representation.  There is no California case on point regarding whether or not a representation agreement to limit one’s representation to collaborative matters is effective in barring a claim that the attorney did not act with adequate zeal.  So, until then, attorneys need to:
1) Make sure that collaborative clients understand the process and want it;
2) Include in the written fee agreement a reference to the scope of representation—as collaborative and not adversarial; and
3) Be flexible enough to recommend to the client they stop the collaborative process if it is no longer in their best interest.

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Gang Injunctions (goodbye due process)

Rising gang crime in the 1980’s and 1990’s provided motivation for the criminal justice system to “get tough on crime.”  Even living in a smaller community in Ventura County—one doesn’t have to look too far to find crime.  In 2009 in the quiet City of Camarillo we had 9 rapes, 62 vehicle thefts, and over 1000 property crimes in all.  Motivation to combat crime combined with creativity resulted in the implementation of gang injunctions.  Even those who know that gang injunctions exist do not understand how they work (and you will be surprised).  In addition, scholars who have studied gang injunctions have found they are not effective against crime.  Not only is the efficacy of gang injunctions questionable, their legal legitimacy is tenable at best.  Three Supreme Court decision regarding similar schemes indicate that gang injunctions might be invalidated if they are challenged in the Supreme Court.
Issuance of Civil Gang Injunctions (public nuisance run amuck)
A civil gang injunction is created by a lawyer from the County Counsel or District Attorney’s office filing a civil lawsuit alleging that a gang and its members are creating a public nuisance.  In California, Civil Code § 3479 defines public nuisance as selling drugs, being indecent or “obstruct[ing] the free passage or use” of public areas.  Frequently the lawsuit will name the gang and some of its members, but the lawsuit can be limited to a suit against the gang itself.  Usually testimony consists of police officers remarks regarding the gang and a few community members who don’t feel safe.  Even if individuals are sued as a part of the gang injunction, since it is a civil action, the state is not required to provide them counsel.  So—you can be named in a civil gang injunction suit and you have no right to an attorney.  
Service with a Gang Injunction (what due process?)
Once a gang injunction has been issued, police officers can serve it on anyone they want.  After they serve it on someone—they are included in the gang injunction and have no scheduled opportunity to fight their inclusion and also have no right to counsel.
What do gang injunctions enjoin?
A copy of activities typically enjoined by a gang injunction is available here.  It prohibits being present in public with another gang member or gang “associate” (whatever that means).  It prohibits riding a bike recreationally.  It prohibits loitering (standing on the corner).  Most of the activities prohibited by gang injunctions are not illegal activities in and of themselves.
Civil Injunction With Criminal Penalties
Although gang injunctions are civil, violating them is contempt of court—a crime punishable by up to 6 months in jail and a $1000 fine.  Violators are afforded counsel for the first time when they are charged with violating the injunction.  If violators plead guilty (in order to get probation and not jail time) they have effectively admitted they are a member of a gang.  In any future injunction or other action—the prosecution can use their previous plea as proof of gang membership and they can be estopped from denying gang membership in the future.  When gang sentencing enhancements can increase sentences up to 20 years, a plea bargain for a simple gang injunction can have sweeping effects.
Efficacy of Civil Gang Injunctions
One of the best studies on the efficacy of gang injunctions was done by Jeffrey Grogger of the Harris School of Public Policy at the University of Chicago.  His study concluded that injunctions reduced violent crime by 5 to 10 percent.  However, he only followed these affects for one year.  Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, 45 J.L. & Econ. 69, 89 (2002).  The ACLU of Southern California studied the efficacy of the Blythe Street injunction in Los Angeles and found that not only did in not result in a crime reduction—it increased crime in the neighborhoods surrounding the injunction.  Author Beth Caldwell’s article on gang injunctions makes recommendations for making gang injunctions more effective and fair.  These recommendations include: 1) creating a way for people to “get out” of injunctions after being included, 2) create exceptions for non-criminal behavior like recreation, 3) exempting non-criminal activities between family members (like a father and son walking down the street), 4) creating a mens-rea (intent) requirement for a violation to occur, and 5) ending the practice of adding additional people to the injunction without a hearing.  Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 249 (2010).
Supreme Court Decisions
Papachirstou v. Jacksonville (1972): Vagrancy ordinance which outlawed “wandering or strolling around from place to place without any lawful purpose or object,” was declared unconstitutionally vague. 
(Void for vagueness)
Kolendar v. Lawson (1983): Law that allowed police to demand identification and an accounting of one’s whereabouts when a person was “loitering or wandering” was unconstitutionally vague because it gave excessive discretion to the police.
(Void per arbitrary enforcement—too much discretion)
City of Chicago v. Morales (1999): An ordinance’s vague definition of “loitering” and the resulting lack of notice it provided made it unconstitutional.
(Void per arbitrary enforcement—too much discretion)
Why No Challenges?
One need not be a legal scholar to see that gang injunctions could be challenged on the grounds that 1) they are not effective, 2) they are void for vagueness, or 3) they are arbitrary because they give police too much discretion.  Why hasn’t anyone challenged a gang injunction and brought these arguments before the Supreme Court?  The socioeconomic class impacted by gang injunctions does not have the resources to combat their use.  In addition, the lack of a right to counsel until one has been charged with a violation is generally too little too late.  Every politician wants to look tough on crime.  Every citizen wants to feel safe.  Although politicians may win votes and citizens sleep better at night, gang injunctions are causing more harm than good and are probably unconstitutional.

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You can make your own will (just don’t type it)

Over 90% of Americans die without a will.  This is mostly because it costs money to go see an attorney and have one drafted (usually around $1,500).   This is something your lawyer doesn’t want you to know: you can make your own will.  Now, there are some situations where receiving legal guidance is necessary, but most people don’t really need special guidance to make a will.
Making your own will (don’t type it!)
If you want to give yourself a headache you can try and read Cal. Probate Code § 6111, which will also tell you to read § 6110, will refer to holographs, and generally be confusing.  But this is what you need to know to make your own will:
  1. Write everything in your own handwriting
Everything needs to be in your handwriting.  Everything.  Don’t type your will.  Many people type their own will and sign it…only to have the court invalidate it; then you die intestate.  
  1. Sign at the bottom
I think this is kind of obvious, but you need to sign it.  In California you can sign it pretty much anywhere, but sign it at the bottom, because many states require the signature to be on the bottom of the page.  The law of the state where you are domiciled at death applies—and who knows if you are going to move or not.  So don’t be creative and sign it in the margin; sign it at the bottom.
  1. Date it
Write the date on your will.  Make it clear.  It doesn’t really matter if you do it like a European (day/month/year), like an American (month/day/year) or in full (i.e. October 13, 2010) as long as the court can figure it out.
  1. Keep it simple
Don’t be fancy.  Don’t get tricky.  If you want to leave your estate to your kids, only so long as they go to church on Sunday, this is tricky.  Don’t use language you saw online like “if anyone challenges this will you get $1.”  Keep is simple and in your own words.  
  1. If you can’t say anything nice, don’t say anything at all
Don’t say: “I leave my estate to my son, but nothing to my daughter because she is a no-good drunk.”  There is this thing called “testamentary libel” and other issues can arise if you say nasty things in the will.  You should avoid saying anything bad about anybody if at all possible.
When you need an attorney
I just got done telling you that you don’t need an attorney to make a will, but these are some of the situations in which you do need a will:
  1. You have a sizeable estate
If you have a sizeable amount of wealth, you will want to take certain steps to avoid taxation of the estate.  Writing your own will is probably not in your best interest.  Hiring an attorney to create a trust and avoid taxes if at all possible is probably in your heir’s best interest.
  1. You want to get tricky/creative
You really want to be creative.  You only want your son to inherit “if he marries a Jewish girl” (there are hundreds of cases with that provision believe it or not).  You only want your daughter to inherit if she finishes college.  There are so many ways to screw this provisions up that you need an attorney.  
  1. People are going to contest the will (you have a family of jerks)
Your family is litigious and you know that your kids are going to file law suits to duke it out.  There are certain steps that you can take to encourage them from fighting over your estate or to make it harder for them to challenge your will.  
  1. You want to amend a previous will
You already had an attorney make a will, but you want to change it.  A handwritten will saying that “your revoke all previous wills, codicils, and testamentary instruments” will probably suffice, but it is really easy to make mistakes when amending previous wills.  Go see an attorney if you already have a will and you want to make changes.

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Loss of Use: why every car is always your daily driver, you never sign a long term storage unit contract, and you fix your boat in spring

When someone damages your property you can always sue for replacement or repair.  That’s pretty straight forward.  What about the fact that you’re without your property?  Loss of use damages are damages attributable to the inability to use property, premises, or articles due to someone else’s negligence or tortious conduct.  So, when can you get loss of use damages?  How much can you get?  What the heck does this have to do with daily drivers and storage units?  Bear with me.

Mondragon (Sad Dad)
In Cirilo Mondragon v. Morris Austin (1997) 954 S.W.2d 191, a father (Morris Austin) purchased a car for his daughter to drive while she was away at college.  Neither Morris nor his daughter ever used the car.  Two months after purchase, Mondragon had a few too many drinks and ran into Morris’ recently purchased car (while driving backwards).  For whatever reason, Mondragon’s insurance company denied the claim.  Mondragon also refused to pay.  Morris had an unusable car, a daughter without a car, and Morris was broke.  Close to two years later (and the statute of limitations) Morris sued.  He said he had been too broke to fix the car and Mondragon owed him for the damage to the car, but also for the loss of use of the car for the last two years.  The court found Morris suffered $8,020 in loss of use damages, $1,716 in prejudgment interest, and $2,752 in repair costs.  Essentially $8,020 was the cost of utilizing a comparable rental car for the two year period.  Note: in most jurisdictions, the fair market value of the item itself is not a ceiling on loss of use damages.
Metz (Classic Car Collector)
In Metz v. Soares (2006) 142 Cal.App.4th 1250, John Metz was a classic car collector.  He took his 1971 Jaguar XKE to the shop for repair.  First of all, I think a 1971 Jaguar XKE looks like a shoe.  Second, if you are going to collect a 1971 British car, buy the inaugural year of the Corniche like a big boy.  I digress.  The body shop left the car out in the rain with the hood open and the car was ruined.  Metz sued for loss of use damages.  The court denied Metz’s loss of use damages because the car was not regularly used.  He only drove it once in a while on the weekends—and the court found that was not frequent enough to merit loss of use damages. 
Conqueror (Sad Yacht Owner)
In The Conqueror (1897) 166 US 110, a pleasure yacht was wrongfully seized and detained for five months during fall and winter by the collector of customs (US Government).  The Yacht owner sued for loss of use of their yacht.  The court found that the government owed the yacht owner no money, because the yacht would not have been used during fall and winter anyway because it was too cold.
Shearer (Storage Unit Holder)
In Shearer v. Taylor (1906) 106 Va. 26, a man had furniture in a storage unit under a six month contract.  His furniture was wrongfully detained and he was unable to use it.  The court found Shearer had no loss of use damages because the six month contract indicated he didn’t plan on using the furniture for that length of time anyway.
What does this all mean?
Like Morris Austin, even if you have not used a car, but plan on using it frequently a court will give you loss of use damages.  It will even give you loss of use damages if you’re broke and you let the damaged car sit on the side of your house for two years.  But you won’t receive  any loss of use damages if it appears as though you haven’t been using your car very much—like John Metz.  They won’t give you less loss of use damages, they simply will give you none at all. 
So, if you ever get into an accident the car you are driving is always your daily driver.  If you ever drop your car off at the shop, the car you are driving is always your daily driver.  Don’t brag about how you own five cars.  The Conqueror indicates that you may not want to drop off your boat at the mechanic at the end of season, but rather may want to wait until the beginning of season to fix your boat.  If you ever get a storage unit never sign a long term storage contract and also indicate somewhere that you plan on getting your items out frequently. 
But it’s not like planes crash into storage units or anything.

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Who gets the family dog upon divorce? (dogs are chairs)

Couples are increasingly treating dogs like their children.  But what happens when couples divorce?  Who gets to keep the family dog?

A recent case in New York illustrates how hotly contested pet custody can be.  Many times one spouse cares more about the dog than who gets to keep the house.  Given the enormous sentimental attachment people have with their pets, many times the uninterested party uses the pet as undue leverage to increase their stake in community property.


Best interests?

Some states have turned to “the best interests of the pet” which applies something like the best interests of the child—to pets.  New York is one of those crazy jurisdictions.  California cases have explicitly rejected this view.  In an illustrative unpublished decision, the California Court of Appeals, Second District, rejected the best interests rule, stating, “Wife cites no persuasive authority, and we have found none, to support the proposition that the best interests of Emmit [the beagle] must be considered by the family court”. In re Marriage of Isbell, Willoughby (2005) 2005 WL 1744468 at 1.


Dogs are chairs (chattel)

Courts look to property law principles to determine ownership of pets.  New Jersey Superior Court Judge John Tomasello recently stated, “Dogs are chairs; they’re furniture; they’re automobiles, they’re pensions. They’re not kids.”   Eric Kotloff, All Dogs Go to Heaven . . . or Divorce Court: New Jersey Un”Leashes” A Subjective Value Consideration to Resolve Pet Custody Litigation inHouseman v. Dare, 55 Vill. L. Rev. 447 (2010).  How do courts determine who the pet belongs to?


Separate property

When a pet was purchased before the marriage, determining custody post-dissolution is rather easy.  The pet is considered that spouses separate property and the other spouse has no right to the pet.  How do you prove dog ownership?  Courts look to see whom “bought and paid for the dog, paid license taxes for keeping it, and procured a collar for it with initials engraved on it.” O’Rourke v. Finch (1908) 9 Cal. App. 324.  The tricky part is that one spouse can transmute their separate property into community property by a signed writing.  So, if the spouse who bought the pet before marriage registers the pet under both spouses names, the other spouse can argue that the registration was a written transmutation of separate property into community property.  There is not yet a case on point.


Community property

If the pet was purchased during the marriage and is community property the parties will be urged to come to a settlement agreement regarding the pet.  Some states allow for courts to create a “parenting plan” for the pet, to be enforced by the court, similar to a child custody plan.  California does not provide for such a scheme.  If the pet is community property, usually the parties come to a settlement agreement assigning ownership to one of the parties.  If the parties cannot agree on who gets to keep the family beagle, “the court may submit the matter  to arbitration any time it believes the parties are unable to agree upon division of the property.”  California Family Code § 2554 (b).  So, if the judge thinks you can’t come to a consensus regarding the beagle, he can send it to arbitration.  An arbitrator will most likely dispose of the family beagle to the party with the greatest sentimental attachment.


Pet prenup?

If pet ownership is really important to one or both of the spouses, they may want to enter into a pre or post-nuptial agreement detailing who gets pet custody and how.  Courts will generally enforce contractual agreements and such a pre or post-nuptial agreement can even detail a pet parenting plan that California courts are unwilling to come up with on their own.  If one spouse is especially attached to a family pet, making such an agreement may prevent them from giving up large amounts of community property just to get the family pet.

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Filed under Family Law, Pets

Why attorneys should charge (something) for initial consultations

Everyone wants something for free.  But why should an attorney charge for the initial consultation?  How might this actually benefit the client?
  1. Your attorney isn’t listening to what you’re saying
During the initial consultation, clients and attorneys have divergent interests.  Clients are focused on one question: what are my chances of success and what am I going to get?  Attorneys are focused entirely somewhere else: is this a client that I want to represent and are they going to actually pay me?  If the client pays even a nominal consultation fee ($100), the attorney’s focus shifts.  They take the client more seriously.  If the client is willing to pay something the attorney is less focused on the prospective client’s ability to pay in the future. 
As a client, you want to do whatever you can do to get the attorney focused on the merits of your case, instead of whether or not the attorney is comfortable taking your case.  Paying something as little as $100 can gain this shift in focus and actually get the attorney listening to what you’re saying.
  1. Duties to prospective clients
Most people think that if they go into an attorney’s office and get an initial consultation, and don’t hire that attorney, the attorney is only “out” an hour of his time.  That’s not so.  An attorney owes a duty to prospective clients.  When you go in for a “free” initial consultation and tell an attorney about your case, after you leave, the attorney has a bunch of continuing duties.  You go on a list and the attorney cannot represent people against you in this case, and possibly in future cases.  The attorney may lose future business because he cannot represent someone against you in the future.  The attorney has a continuing duty of confidentiality.  Any notes and records he made during the initial consultation need to be maintained.  The point is—there is an opportunity cost.  The attorney may have to decline future representation of another person just because he talked to you for an hour.  
  1. Malpractice
Although any nominal fee charged for an initial consultation wouldn’t possibly cover damages in a malpractice action, clients need to recognize that every time an attorney has an initial consultation with a prospective client—he leaves himself vulnerable to screwing up and being sued for it.  Attorneys shouldn’t expose themselves to potential liability and get nothing.
  1. The first hour (of consultation) is the most important
Many times a client goes into an initial consultation and within an hour they learn everything they need to.  The statute of limitations bars their claim.  The attorney tells them they can resolve the issue via self-help with a form at the government center.  They have no legal claim.  Different attorneys will give you different numbers, but something like a quarter of all initial consultations answer everything the client needs to know.
  1. You don’t expect your doctor to do it
For some reason clients expect lawyers to give them something for free, but when is the last time you got a second opinion from a doctor and asked them not to charge you unless you choose them as your new doctor?  They would look at you like you are a crazy person.  Other professionals charge you for their time whether or not you continue to use them.  

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Why you need a will (intestacy sucks)

The majority of Americans do not have a will.  Writing one requires confronting a stark reality.  But do you really need a will anyway?
  1.  Live-in partners get nothing
When you die intestate (without a will), the current scheme of where your property goes provides nothing for cohabiting couples, live-in partners, etc.  It is more likely for your property will go to your grandparents than to your girlfriend.  
  1. Stuck in probate forever (around three years)
Few people realize that the money sitting in their bank account will sit for years until it’s distributed in probate.  Years of bank fees.  Family members can sometimes petition the bank for some funds in the meantime, but portions of the estate will be in judicial limbo for years.
  1. Accounting hassles
If one dies intestate (without a will) and has a wife and two kids, in California the wife will receive a third of the estate, and the children will each get a third.  Guess what the wife has to do until the children turn eighteen?  She has to account for every penny that she spends out of the kids’ funds.  If the children turn 18 and think mom spent some of the money on herself, they can turn around and sue their own mother.  The accounting hassles and possibility of conflict make distributing the estate to one’s children less desirable.
  1. Eighteen year-olds are not good with money
If property is disposed intestate to one’s children, it will most likely be held in trust and then distributed to them when they turn 18.  Eighteen year-olds are not exactly brilliant with money management.
  1. Intestacy laws can be weird and not what you want
If you want to see how intestacy would work out for you, try out the intestacy calculator here.  Even if you look at the results and aren’t shocked, the results would still not be your personal choice.  You (not the state) should have a say in how your entire life’s accumulation of property is disposed of at your death.

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