Your Family Law Practice...Not Always High-Minded Jurisprudence

Lawyer: Pro golfer's wife denies stealing phone

Sep 29, 2:06 pm EDT

JACKSON, Miss. (AP)—An attorney for John Daly’s estranged wife, Sherrie Daly, says she did not steal the pro golfer’s cell phone.

Randy Fishman said Monday that “this is a divorce case and people accuse each other of stuff all the time.”

Sherrie Daly was freed on a $500 bond Friday after being accused of stealing the phone from the golfer’s tour bus in June. The bus was parked behind the John Daly Bar & Grill in the north Mississippi city of Olive Branch.

Fishman says he expects nothing to come of the misdemeanor charge of petit larceny. A court date is set for October 9. Sherrie Daly lives in Germantown, Tenn.

I've never had a cell phone fight before...there was that case with the patio furniture.

Judges and Time Management??

Why in 90% of courtrooms do judges just set like 80% of cases at 9/930/10am? If you practice where I practice, every status hearing in most courtrooms gets set at the same time so you have 30 cases scheduled for say 930am. So inevitably those courtrooms get backed up and time gets wasted.

There's one judge I appear in front of a lot who does things differently and it's not rocket science. She spreads cases evenly in 15 minute increments from say 9am to 12pm. So there's not 30 cases at 930am and then 5 the rest of the morning. There's 2 cases at 15 minute increments and her call moves along swimmingly!

Some "Petition for Rule to Show Cause" Nuggets

If you practice in the domestic relations field you need to be an expert on petitioning to hold a party in contempt of court and defending your client against being held in contempt of court. This is the most common pleading you'll deal with in the family law field. Do you know the 4 types of contempt cases? Well...indirect civil, indirect criminal, direct civil, and direct criminal of course. 90% of the time I'm dealing with indirect civil, in other words the alleged violation of the court's order occurred outside the purview of the court and standard of guilt or violation is a preponderance of the evidence standard.

So I had three contested Petition for Rule hearings on Friday morning so I have some fresh viewpoints to share...

First, you will (almost) NEVER successfully defend a party against a Petition for Rule without non-verbal or tangible evidence to support your position. I've had a couple of these lately where the client I was defending had pretty good "sob" stories...real homeless, sort of destitute tales of woe but little or no written support for his/her verbal testimony. I just don't think judges believe these tales even if they're true. In one of my recent cases I had a corroborating witness but still no paper records of tax returns of financial woes. And I'll acknowledge that the big problem here is that these clients keep terrible if any records so there's not too much you as lawyer can do.

Second, don't file your Petition for Rule until your case is really ripe. I know I've done this before as a younger attorney and I saw it Friday too. Granted this is subjective and every case has its unique facts but you shouldn't file your Petition against the dad who's legitimately unemployed and has missed a couple child support payments. I had one of these Friday, my client had a ton of legitimate doctor's records regarding his injuries over a couple years and he was some $1,300 behind in child support. What client wants to NOT have the other party held in contempt (so no jail and no attorney's fees) and all you've gotten is a judgment for $1,300?? Probably a money loser for the client after they pay theirlawyer.

4 Tech Tips

From Friday's CBA Technology and Practice Management Committee:

1) Buy an orange briefcase for your computer. This lessens the possibility of anyone stealing it at airports, etc. Red is good too;

2) Put message on your PDA offering reward if returned, has worked for me three times, once with cabbie;

3) Use Acrobat for marking up case law and other docs -- can do in color and type comments;

4) Buy and use Time Map, particularly for litigators.

An Overview of Loan Forgiveness Programs for Public Sector Lawyers

I suppose the devil will be in the details and it's too late for me, but here's our federal government's handout to lawyers who choose to work as federal or state prosecutors, public defenders, and something called "public interest legal services." So go to a state school, work in one of these sectors for a few years and your law school loans are gone.

So you wanna be a Judge?

Well, it ain't all black robes and high-minded jurisprudence. Sometimes you get human excrement thrown at you.

Lap Dances and Legal Fees

Here's the story from today's Trib. about a DeKalb lawyers who had his law license suspended for acts relating to his representation of a stripper and bartering her legal fees downward in exchange for stripteases.

Let me say for starters, I don't like to make light of the failures of other attorneys because I'm not here to suggest I'm without failing and I hate it when I see lawyers "outing" other lawyers in various list serve forums. That said, since this piece was in today's Tribune which I'm guessing gets a bit more traffic than this little ole' blog I'm surely not the primary source of publicity.

At first glance at the Tribune piece my thought was honestly, what's wrong with bartering for legal services? I have known friends who've bartered for shares of stock and horses in the past. Is a lap dance different?

However, if you read the ARDC docs (Complaint, Review Board decision, and final Order) the story goes beyond lap dances to allegations of sexual abuse. Here's a blurb from the ARDC Review Board:

This case is before the Review Board on exceptions filed by Respondent-Appellant, Scott Robert Erwin. The Hearing Board found that, as charged in the Administrator-Appellee's two-count amended complaint, Erwin represented a client when the representation might be materially limited by his own interests, in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.7(b)), failed to withdraw when he knew or reasonably should have known that continued employment would result in a violation of the Rules in violation of Rule 1.16(a)(2) (134 Ill. 2d R. 1.16(a)(2)), engaged in overreaching, breached a fiduciary duty, violated Rule 8.4(a)(3) (210 Ill. 2d R. 8.4(a)(3)) by committing a criminal act, specifically battery, that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)) and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of former Supreme Court Rule 771 (134 Ill. 2d R. 771) (renumbered to Supreme Court Rule 770). The Hearing Board recommended that Erwin be suspended for fifteen (15) months.

Take a look at some of those rules...they're quite broad. I know I haven't looked at those lately. Look at Rule 770: "conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute." Or 8.4: "A lawyer shall not: violate or attempt to violate these Rules." Or 1.7, where a lawyer's own intersts limits the lawyer's representation.

Rember, clients are not your friends! And as you're performing legal services for people, don't stop asking, what's the worst thing that can happen and how do I cover my butt if allegations are raised??

Sheriff OKs deal to ban Political Hiring

Alright, I'm waiting with baited breath for the Sheriff to now function smoothly and efficiently. Here's the Sun-Times article and a blurb:

Cook County Sheriff Tom Dart on Thursday agreed to settle a federal lawsuit that seeks to eliminate political hiring in his office.

The proposed deal calls for appointing a federal hiring watchdog to keep tabs on the Sheriff's Department and could pay workers who claim to have been passed over for promotions or new jobs for political reasons. Cook County taxpayers would pick up the tab for those settlements.

9/16...More Free CLE

Some free domestic relations-related CLE @ CBA from the Woman's Bar Association of IL (I think men are invited too):

THE WOMEN’S BAR ASSOCIATION OF ILLINOIS presents

A Domestic Relations Round table Discussion:

“Non-traditional Wage Earners”

led by

The Honorable Raul Vega

There is Light at the end of the Tunnel

I was struck by two articles I saw recently where attorneys have successfully melded their legal careers around their passions. I struggle with this all the time asking myself what do I possibly care about divorces and real estate transactions? In other words, but for my current profession and my law firm background, I wouldn't care too much about these fields, i.e., I'm not spending too much "hobby time" in those fields.

But it seems this can change...

Here are two stories of Yvonne Ocrant and John Swarbrick and the interesting directions in which their legal careers have turned. Ms. Ocrant has successfully melded her love of horses into an equine practice and Mr. Swarbrick was just named AD at Notre Dame (the football team needs some work).

It's Just a Status Hearing, Judge

I used that line a couple weeks ago and the judge who wanted to get the particular case moving nearly bit my head off because I used the line in the context of explaining why our client wasn't in court for a status hearing. Of course in this case I was correct, at least in my point maybe not my smugness.

The April '08 ISBA "We password protect everything" Bar Journal had a short piece explaining the limits on a court's authority when a case is merely set for status and a party has not properly motioned something up. In other words you're in court only for a status hearing and then someone asks a court to make a substantive order or ruling. A court does NOT have authority to do this...two cases to cite: Felzak v Hruby, 367 Ill App 3d 695, 855 NE2d 202 (2d D 2006) and Ligon v Williams, 264 Ill App 3d 701, 637 NE2d 633 (1st D 2004).

Now sometimes everybody wants to do some things at a status and that's fine. Just don't get caught off guard.

Threatening Attorneys with Disciplinary Action

Chicago Lawyer had an interesting piece on this subject in the September issue (unfortunately it's not online). This issue is Rule 1.2(e) of the Illinois rules of professional conduct. Here's the text of the Rule:

(e) A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter.

What's funny if you read the article with the cases cited, each case includes a lawyer accusing another lawyer of wrong-doing and then threatening to file an ARDC complaint against him. And of course the lawyer making the ARDC threat is the person who in the end gets in trouble with the ARDC for violating 1.2(e).

Now there's nothing wrong with filing an ARDC complaint against another lawyer and it happens with some frequency. Just don't do it to "obtain an advantage in a civil matter."

The Risks of Taking Cases at Inconvenient Courthouses

I've always practiced in "volume" law firms. I don't say that as a criticism I simply mention it to explain that I've never worked in a big dollar trial practice where I think you essentially take the big money cases just about wherever you can find them because the potential payoff is worth the inconvenience. I've always worked in environments where you make your money by having a lot of say $2,500 to $10,000 cases going all the time.

In a volume practice you need to be careful not to take cases that waste a lot of travel time or to take cases at courthouses where you can't schedule multiple cases on court dates to really get good value out of your court appearances. You make your $ in a volume practice by scheduling 3-5+ cases for every day you're in court.

Because here's the risk....all it takes is one case where there's a lot junk and many, many court appearances at the inconvenient courthouse to be a huge drag on profitability. I have a case like that right now. We've had stupid problems with a Sheriff not properly returning an Affidavit for Service, a disagreement with the Court as to the definition of joint/several liability, an honest scrivener's error that nonetheless required another court date to repair. Now this sort of thing would be a pain-in-the-butt regardless but if it's at a courthouse where I have tons of other cases I can be scheduling other matters and making those mornings profitable. But when this is the lone case, then this turns into a big time waster and money loser.