Monday, December 10, 2018

It's just sooooooo frustrating sometimes

Crazy is the business of law
WARNING:  This blog post runs a bit deep and leans towards the dark side of how law stuff works.  So, if you're looking for light and fluffy, check out some of my other blog posts.

Anyway, you know what I'm grateful for?  Well, among other things, I'm grateful for the fact that while I've been in the legal business for little over two decades (that's 20 years for you millennials), I've not had to actually litigate anything. Knock on wood but no one has sued me and I haven't had to sue anyone.  

That's actually pretty impressive given that I live in the litigation capital of the world (i.e. California).

Despite my good luck (so far), I have pity on people who come into my law library with problems.  Take, for example the guy that come in the other day.  He was embroiled in a family law matter and only recently his soon-to-be ex's lawyer filed a complaint for Joinder.

Typically, when people seek Joinder in legal matters, it means that they are looking to include a plaintiff or defendant that they neglected to include when they initially filed the complaint.  In guy's family law matter, the Joinder action was being used to include his business and not just some unnamed person.

Here's where things get "fun."  Thing is, I don't practice law and so I don't know the ins and outs of many legal wranglings.  See, when you typically file for Joinder, you do it as a motion and not a complaint.  This, apparently, is important when you go to file a response.

So, here's how things went down.  Guy's ex's attorney files a complaint for Joinder.  Note, he didn't file a motion for Joinder.  When Guy was served with the complaint, he didn't know the difference between a motion and a complaint.  

Going to the California Judicial Council Forms site, he searched under the Family Law forms until he found FL-373 (Responsive Declaration to Motion for Joinder and Consent Order of Joinder) which, to the casual observer would be what you would use - if what you were responding to was a motion.

California Judicial Council Forms

Fast forward a bit and guy heads over to the court clerk to file his response.  The clerk says, "that's not the correct form; we won't accept/file it."  Guys asks, "What's the correct form?"  Clerk says (in, what I suspect is their best Cosby accent), "I can't tell you [ha ha ha ha ha ha ha]. Go to the law library and they can help you find the form(s) you need."

The problem (according to a number of attorneys that I've spoken to) is that the court clerk is wrong.  Guy's ex wife's attorney filed the wrong thing but because he's an attorney, the clerk doesn't question what is being filed.  

Guy, not an attorney, tried to file the right thing but because it was not in the format recognized by the court clerk (and because the court system favors attorneys and hates pro se litigants), they would not accept it.  

Two problems exist here.  First, the court clerk is exercising authority outside his/her jurisdiction (i.e. the clerk MUST accept all filings and it is the judge to determine if it is correct).  Second, clerk assumed that the attorney filed the correct document because he is an attorney.  Fact is, everyone screws up.  

That you have the initials Esq. after your name does not make you perfect or immune from screwups.

Another thing to note is that every time anyone comes to the my law library after they've been rebuffed by the court clerk, they ALWAYS say the clerk told them the law library has the forms they need.  Always.  

So, Guy hightails it to the law library and is standing in front of me and I can't figure out what he's trying to do.  Why?  Because Joinder is typically filed as a motion - NOT a complaint.  So, I'm stumped.

I'm thinking, "Guy has form FL-373 all filled out detailing his wishes (i.e. that the complaint for Joinder should fail). The problem is that this is a complaint - not a motion (and the clerk, for whatever reason, won't accept the response to a motion).  So, you can't respond to this complaint like I would a motion."  

OK, that looks like catch-22 thinking but it's my brain and it's worked for me this far, so leave...wait....why not just use what guy has in his completed FL-373 and put it on pleading paper (like you would to respond to a complaint)?

Wait, what in blazes is pleading paper?!  The term “pleading paper” is used to describe how to format legal documents under Title Two of the California Rules of Court when a pre-made form is not available.   

Good thing for you, if you click THIS LINK, you will have access to a great sample Pleading Paper template.

Anyway, with Guy still standing in front of me, I casually suggest that he copy the language in his completed form FL-373 and paste it in/on the pleading paper template and file that with the court (and see what the clerk does).

Do you see what happened there?  Guy took the information that was already contained in his motion response and copied it onto pleading paper. 

Even thought that's not what Guy should have had to do, but for whatever reason, and as far as the court clerk is concerned, Guy was hoping (finger's crossed) the court clerk would accept and file it. 

Turns out, that did the trick.  Who knew?!?  The court clerk accepted Guy's jerry-rigged response and Guy was able to move on with the case

What a freakin #&^*%*^$%*& crock show, but that's law and, apparently, that's how things "work" in the law business.

Monday, December 3, 2018

Word of the Month for December 2018: Amended Pleading

Christmas Carols
It's Christmas time and what better thing to do at Christmas time is sing Christmas carols.  

One of my favorite is the 12 Days of Christmas.  In this case, let me reprise the 10th day with my own version, to wit: On the 10th day of Christmas my true love gave to me....10 amended pleadings!

Wait, what?  Yeah, 10 amended pleadings.  That's how many I've had to deal with this last week.  Ten.  So, before we get into this, what is an amended pleading?  Well, according to Black's Law Dictionary (10th edition), AMENDED PLEADING means:
A pleading that replaces an earlier pleading and that contains matter omitted from or not known at the time of the earlier pleading.  An amendment is the correction of an error or the supplying of an omission in the process of pleading.
So, how might an AMENDED PLEADING play out?  There are a number of ways that people can run into trouble and have to deal with an amendment.
  • A party might have to substitute the true name of a person or entity for the fictitious (i.e. DOE) name (i.e. DOE defendants).
  • A party might have to correct the spelling of another party's name.
  • A party might have to change the prayer for relief (i.e. they want money instead of an injuction).
  • A party might have to add or remove another party from a lawsuit.
  • A party might have to correct facts or particular pleadings in a complaint
  • A party might have to amend a complaint following the granting of a demur with leave to amend.
So, what got me started on this was a Guy came into my law library.  Seems he had filed a lawsuit against his neighbor after neighbor's tree fell onto his fence crushing it.  When neighbor refused to fix the fence, Guy sued.  Problem was, Guy incorrectly spelled neighbor's name.  

By the time Guy realized what had happened ( after having had neighbor taunt him relentlessly saying Guy had spelled his name wrong), the action had proceeded a ways and so Guy needed to file a motion to amend the complaint.  So, standing in front of me, I suggested Guy take a look at:
and off Guy went to get his case back on track.

So, even though Guy dropped the ball, he knew well enough that the good people at his local county law library could help him recover and keep moving down field.  

Yep, we are that good.

Monday, November 26, 2018

Death's Door is right around the Corner

The light is a train
What is it with death and dying?  I mean, why are people so fixated on life that they're afraid of dying?  Face it, we're all getting older. From the second we pop out the womb, we're getting older.  I was reading an article today about how old people (i.e. people older than me) are constantly clamoring for the latest tip on how to find or manipulate the fountain of youth.

You want to know the secret to a long life?  Eat lots and lots of fiber.  You won't live longer but it will feel like it.  For the rest of you who realize that death and dying are inevitable, might I make a suggestion that will help with the your passing.  Save all your money for your beneficiaries or spend it all before you die.

If you are all for saving your money, then in good company you are because there are millions of ways to invest your hard earned monies and ensure that it goes where you want it to go.  For the saving and giving crowd, might I suggest you take a look at:
On the flip side, if you've decided that work is for the birds and you're ready to spend, spend, spend it all, then might I suggest you take a look at:
Yep, time is not your friend.  Whether you're staring down both barrels of mortality or looking up at the sky (whilst sunbathing in Bali), know that your local county law library has pretty much anything you need to help you get to your happily ever after.

Monday, November 19, 2018

I was just getting started

Research is for people who don't know
I have always liked doing research.  From my early days in elementary school to post-graduate programs, if I had a choice of taking a test or writing a paper, I'd write the paper.  Always. 

The thing is, I knew that there was no one, catch-all book where I could find everything.  I would pull facts and figures from dozens of resources and then start writing.

Imagine my surprise, then, when years later I'm helping people do research in a law library and they are regularly put off when I tell them that there is no one tell-all book that lays all the law out for them in easy to read steps with pictures

There was nothing like that in undergrad, why would there be something like that in a post-graduate study like law?  Really?!

Anyway, I was thinking about this when a young lady came into my library the other day.  Seems she wanted information about foster children.   More to the point, she was looking for the rights of children in the foster program.

Motioning her to follow me, I started looking in Legal Rights of Children (TR; Vol. 1, Chp. 3 section 4).  That was a good start but she was looking for more.  

So, I stepped to my left and pulled Handling Child Custody, Abuse and Adoption Cases (TR; Chp. 10 section 8 and Chp. 12 Chp. 31).  Again, not what she was looking for.  

Looking down, I noticed Children and the Law in a Nutshell (TR; Foster Care pp. 161-193).  Finally, a good introduction and she was off and running.

But not for long.  Soon she was wanting for more and was getting anxious.  So, turning to my California collection, I pulled

at which point young lady blurted out, "Isn't there just one book that covers everything?"  

Yeah, no.  

As Einsten noted, "It's called research because we don't know."  We don't know the answer so we have to look at a variety of resources to find the/an answer.  Young lady was not impressed and stomped out the door.

Some people I can help, and some I can't.  Guess we chalk one up in the "can't" category and move on.  

Better luck next time, huh?

Monday, November 12, 2018

Intentions don't count

Intentions are not the same as actions
One of the hardest things I do all day is not to noticeably cringe (or laugh out loud).  For example, the other day this lady comes in.  Seems she was on her way to a lunch party when she came upon an accident.  Good heart that she has/had she got out to see if she could help.

Walking up to the scene, she found one person laying outside their vehicle.  The person was beat-up and barely conscious. Lady, feeling bad for the person, sees a jacket in the back of the vehicle and puts it under his head as a pillow, promised to find help, and left.

Again on her way to the lunch party, lady calls 911.  A few months later, she is served with a complaint for negligence.  What?!?  I'm being sued?!??!  I was just trying to help and he sues me?!?!?!??!??!?!??!?

Yes, yes he is/was.  Lady asks if there isn't some good Samaritan law that speaks to the immunity of persons who stop to help injured people.  The law of which she is referring is California Heath & Safety Code Section 1799.102, which reads (in part):
No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission...other than an act or omission constituting gross negligence or willful or wanton misconduct.
Turns out that when lady put the jacket under the person's head, she inadvertently injured the person's neck (at least, that's what the injured person alleged).  I suspect she didn't mean to hurt the guy but these things happen, right? Probably wouldn't have been an issue if she had just kept driving.

Anyway, lady is freaking out and best I can suggest she take a look at is:
I suspect the moral to this story is if you see someone injured on the side of the road, keep driving.  If you do stop, don't touch anything or anyone.  Blood gushing out, don't touch 'em - call 911 and,....oh, heck, look straight ahead and just keep driving.  

A bit harsh?  Yes, yes it is - but when you live in a land fraught with lawsuit fever, that's just how it goes.