The District Court Show on You Tube!

Some of the episodes of The District Court Show (30 minutes each) are on YouTube, including the Tenth Judicial District Self-Help Center.

Tuesday, 12 January 2016

Dealing with a Lawyer Who Is a "Jerk"

Here is a link to another fine article by Jeena Cho on about how a lawyer should interact with other lawyers.  When obnoxious behavior by an attorney is brought to the attention of a judge, there can be several possible responses:

1.  Oh, well, that's to be expected in our adversarial system.  Truth wins out.  No harm, no foul.

2. A stern warning to the "jerk" to "knock it off" or face sanctions.

3.  Immediate sanctions with no warning.  This is generally frowned upon by MN appellate courts under our rules.

Likewise, obnoxious, uncooperative behavior by a party not represented by an attorney may result in sanctions including a default judgment or award of attorney's fees against them.


Monday, 4 January 2016

Grandparents Have No More Wisdom About Custody Than a Judge

I became aware that a longtime judge in Montana was retiring and made some comments about family law cases.  Judge Jeffrey Sherlock was quoted as saying," I have often thought we should have a panel of Grandmothers up there deciding who's best because we judges do not have any special magic book to tell us what to do." 

I agree that deciding the long-term care and custody of children is not effectively and healthily accomplished in our traditional adversarial process.  I often tell litigating parents that they will likely afford their children a better childhood by resolving a custody dispute themselves rather than leaving the decision to the "stranger in the black robe."  In doing so they will both be invested in the future success of their agreement.

But I do not agree that, even if possible, a panel of grandparents would be a solution.  Frequently criminal defense attorneys will argue that their client should be released from jail pending trial because the defendant is going to live with grandma or grandpa.  They may have expected me to think these folks are Ozzie and Harriet (from the 60's) or the Huxtables (from the 1990's)  but I do not.  There are no guarantees that these elderly folks will have any more control over the defendant than anyone else.  In effect, in the mistaken view of being loving, they may, in fact, be enabling anti-social or criminal behavior or chemical dependency.  Some of these grandparents have exactly the same problems themselves.

So if the parents cannot reach agreement, these tough decisions will have to be made by the stranger in the black robe.

Friday, 4 December 2015

Deposition is not an Opportunity for Obstruction

In a 1993 federal decision a judge wrote:

The underlying purpose of a deposition is to find out what a witness saw, heard or did- what the witness thinks.  A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.  There is no proper need for the witness' own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate the answers.  The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy (ventriloquist's dummy), with lawyers coaching or bending the witness's words to mold a legally convenient record.  It is the witness-not the lawyer- who is the witness.  Hall v. Clifton Precision, 150 FRD 525 (E.D. Pa. 1993)

Often a witness's lawyer will instruct the witness/client not to answer. This is improper and may be subject to sanction except to preserve a privilege, enforce a court's protective order, or present a motion to suspend examination (for example, the deposing lawyer is being abusive).

The witness has no right to stop the deposition to consult with the witness's lawyer.  The lawyer also is not permitted to follow an objection with "you may answer if you know" suggesting to the witness/client that he doesn't know.  Objections must be timely and specific within the Rules of Evidence.  Conferences during the deposition, including recesses, are not protected by attorney-client privilege, as to what the lawyer told the witness.

Lawyers who engage in obstructionist tactics, attempting to avoid disclosure of the truth, may face harsh sanctions from the court if the deposing lawyer seeks them.


Wednesday, 18 November 2015

Affidavits and Pleadings in Minnesota Need Not be Notarized

As a result of 2014 legislation, court pleadings, motions and affidavits need not be notarized.  This was necessary due to electronic filing becoming mandatory statewide soon (and already in some counties).  However, the document must state:

I declare under penalty of perjury that everything I have stated in this document is true and correct.

Minn. Stat. 358.116

Call me skeptical but I am unconvinced that this statutory change will result in 100% truth-telling in family court affidavits.

Tuesday, 3 November 2015

Speaking in Public...and in the Courtroom of All Places!

Whether you are a party not represented by an attorney or you are an attorney with little courtroom experience, the prospect of having to speak in public, let alone in court before a judge (possibly a jury) and your opponent and a bunch of strangers in the courtroom may literally scare you to death.  I have observed very smart competent young lawyers fail to make any eye contact with the judge, mumble their argument, speak into their notes, and repeat themselves.  Some very good suggestions are in in 2 posts written by Jeena Cho.  If this is you, check them out.  Joining Toastmasters as a young lawyer is a great idea. 

Wednesday, 28 October 2015

Who is the Client?

I recently was meeting with a couple of lawyers in my chambers on a case that day set for court trial on custody and parenting time.  One lawyer said, "My clients are not interested in..."  I stopped him there and replied, "You have one client and it doesn't include her mother or father, or brothers or sisters."  I was a family lawyer for 24 years and I know that dynamic well:  the client's parents have paid the retainer and are financially supporting the litigation and feel the need to be actively involved.

Particularly in family law cases the lawyer must make clear to the actual client and any family or friends that the client controls the decision-making regardless of who is paying the attorney's fees.  Confidentiality remains the lawyer's ethical duty unless the client expressly grants permission to discuss the case with others.

Thursday, 22 October 2015

In Minnesota, Parenting Time Expeditors and Parenting Consultants are Treated Differently By Law

Not infrequently lawyers and unrepresented parties make motions to the court here in Minnesota for the appointment of an initial or replacement parenting consultant (PC).  These motions are usually denied. 

The appointment of and process for involvement of a parenting time expeditor (PTE) in Minnesota is governed by Minnesota Statute Sec. 518.1751.  PTE's must have specific training and become qualified to serve on the state court roster.  The role of the PTE is to "resolve parenting time disputes by enforcing, interpreting, clarifying, and addressing circumstances not specifically addressed by an existing parenting time order."  A PTE may be removed upon motion to the court only for "good cause."  Once a PTE is appointed a party who fails to cooperate in the PTE process risks a finding of contempt of court.

A parenting consultants (PC), however, is a different creature.  Their involvement with parties is strictly by contract with the parties, although their appointment BY AGREEMENT, may be reduced to a stipulated court order.  Judges have no authority to modify the contract or make orders contrary to the contract except by agreement of the parties.  The remedies a party has are set forth in the contract, including what they can do if the other party fails to abide by the contract by refusing to participate.

Family lawyers need to understand the difference and educate their clients.  Read Schultz v. Ruff, 2015 WL 4715189.