Nasty Judge’s Sexism Leads to New Trial

BarristerThere is no place for mean-spirited judges in Canadian courts, but regretfully a few slip through the vigorous screening process and become tyrants in an institution where they preside as untouchables.

Mr. Justice Jean-Guy Boilard, of the Quebec Superior Court, is a case in point. A former crown prosecutor, he was appointed to the Quebec court in 1977, beginning a career steeped in controversy. Boilard retired in 2012 but not before leaving a legacy of arrogant, pompous, and derisive in-court commentary attacking the lawyers who had the misfortune of drawing him as their judge. His behavior was so loathsome that Crown Attorneys in Quebec circulated a petition urging their colleagues to sign on, in an attempt to avoid Boilard’s courtroom.

In 2001 Judge Boilard was conducting a trial involving seventeen members of the Hell’s Angels when, in the words of the Canadian Judicial Council, he was “insulting and unjustifiably derogatory…displaying a flagrant lack of respect” for defence counsel, Gilles Dore. Boilard chastised Mr. Dore saying “an insolent lawyer is rarely of use to his client” and also criticized Dore’s “bombastic rhetoric and hyperbole” and dismissed his “ridiculous” argument.

After the hearing, Gilles Dore delivered a scathing letter to Judge Boilard calling him “a coward…pendantic…aggressive…petty…arrogant…unjust…that he was of dubious legal acumen” and made “shameful, ugly, vulgar and mean personal attacks on the unsuspecting”.

Boilard removed himself from the motorcycle gang trial while Mr. Dore was left to respond to a complaint to the Barreau du Quebec, who ultimately found his letter was “likely to offend and was rude and insulting”. Dore was suspended from practice for 21 days, a ruling that was upheld by three other courts, including the Supreme Court of Canada in 2012.

In an inquiry to determine if Justice Boilard’s unilateral departure from the criminal trial was worthy of his removal from the bench, the Canadian Judicial Council ruled it was improper but not so serious that public confidence in the judicial system was undermined. This finding was made in the face of evidence that Judge Boilard’s withdrawal took place four months into the trial and was recommenced at great expense by a new judge.

However, the final blow to Judge Boilard’s reputation was the finding of the Quebec Superior Court this month that his abrasive, insulting behavior directed at criminal defence lawyer Elise Pinsonnault so profoundly compromised the 2011 jury trial of Sebastian Hebert, who was convicted of first-degree murder, that a new trial was ordered. Judge Boilard’s insulting comments included the following exchanges with Ms. Pinsonnault:

Boilard: “It would probably be a good thing if Ms. Pinsonnault listened to us.”

Pinsonnault: “I am sorry your Honour…I can do two things at the same time.”

Boilard: “That’s what women are doing all the time. It does not mean that it is always done well.”

And later:

Boilard: “What is it you want to introduce?”

Pinsonnault: “Some photos!”

Boilard: I’m not asking you to be hysterical. I’m simply asking you to answer me.”

As well:

Boilard: “Listen here, there is a limit to amateurism, isn’t there?”

Boilard: “I am not in the habit of responding to lawyers’ questions. Nor am I in the habit of polishing their education in criminal law.”

Despite the emotional rollercoaster for the victim’s family and the expense and inconvenience, a new trial was required said Chief Justice Hesler:

“Such animosity, such contempt on the part of the presiding judge, so flagrant and repeated to the appellant’s lawyer, leads me to believe that the fairness of the trial was in all probability compromised.”

It is staggering to think that Mr. Justice Boilard spent 35 years on the bench mired in anger and hostility and not one person stopped him.

Divorce Can Be Deadly

10950859361151CDPIn 1967 psychiatrists Thomas Holmes and Richard Rahe examined the medical records of over 5,000 patients in their research to determine whether stress causes illness. A positive correlation was found resulting in the Social Readjustment Rating Scale, also called the Holmes and Rahe Stress Scale. The Scale identifies life events and ranks them based on the the level of anxiety they instill. The death of a spouse rates highest at 100 units, with divorce right behind.

Holmes and Rahe later adapted their testing to children, finding that the death of a parent ranked highest, followed closely by parental divorce. It shouldn’t surprise us then that divorce is a catalyst for stress, anxiety, acting out and in rare cases, murder.

That brings me to the case of Michael Petersen in Nebraska who experienced an ugly divorce that stretched from 2002 to 2005. All of the triggers for hostility and resentment were present including a custody fight, a never-ending battle over financial issues, multiple appeals, and finally, disgruntlement with his lawyer. Petersen’s rage, however, was out of proportion to the issues he faced, anger that caused him to retaliate against his lawyer and his ex-wife….He killed them both.

Earlier this year Petersen plead no contest to the murder of his ex Nancy Petersen, who he shot outside of her home on November 13, 2013. He was sentenced to life in prison. Petersen’s blatantly insensitive criminal lawyer, Jeff Pickens, was quoted in the local newspaper:

“This man had worked hard for 40 years. Much of his hard work over 40 years was gone. He’d had enough of being screwed over by people.”

He’s got to be kidding! Mr. Pickens described a situation where Nancy Petersen was awarded one-half of the parties’ $600,000 estate. So how did this “screw” Mr. Petersen?

As far as the murder of his own lawyer, after killing his ex he drove to his lawyer, Todd Elsbernd’s law office, saw him outside and shot him in the back with a high-velocity rifle. Petersen had accused Mr. Elsbernd, age 52, of legal malpractice and there was an ongoing dispute over unpaid legal fees. Before killing him, Petersen filed a lawsuit against him that was thrown out.

After being sentenced to a second life term for murder, Mr. Pickens offered that between Petersen’s divorce payout and his loss of $150,000 after falling prey to a Nigerian scam, ( a second news report called it a dating website scam) he was penniless. And that’s an excuse for murder?

Michael Petersen was defiant until the end. He told the judge that the justice system was not fair, as he launched into a speech about pre-marital versus marital assets and insisted that his deceased attorney was professionally negligent. He said nothing about his cowardly slaughter of two innocent human beings. There will be a special place in Hell for Petersen.

Lawdiva aka Georgialee Lang .

Judge Trashes New York Landmark “Carnegie Deli” in Divorce Ruling

49afd8240a58bf0fb97d4a86105572c1I was in New York city last fall and near the top of our agenda was a trip to the Carnegie Deli, a landmark in mid-town since 1937 and run by the Levine family since 1976. Its claim to fame is kosher pastrami, corned beef, and their famous cheesecake, all of which they can ship almost anywhere in the world. It’s a very kitschy little place with uneven floors and plastic table cloths, but there is always a line-up.

I didn’t expect the Carnegie Deli to be featured in a divorce post, but it seems that Marian Harper Levine and her husband Sandy, who now runs the deli with her, were lambasted by Manhattan Supreme Court Justice Matthew Cooper for their petty squabbles, while litigants with serious problems were put on the back burner. The audacious judge said:

“What I care more about is the fact they’ve made millions of millions of dollars on the backs of dishwashers, cleaners and pastrami slicers who make as much in a year as they’ve made in a day or two.”

This was apparently in reference to a recent $2.65 million dollar settlement reached between the Levine’s and their staff, who were cheated out of proper wages for over a decade.

Mrs. Levine’s application was to reduce the $11,00 per month she has been paying her husband in spousal support, a request that was denied by Judge Cooper. She also complained that her husband, who began an affair with the deli’s former hostess, had helped himself to huge sums of money, an allegation that was called “all smoked meat and mirrors” by Mr. Levine’s witty attorney, Donald Frank. Mrs. Levine took exception to the trivialization of her concerns by opposing counsel, a view that Judge Cooper dismissed saying:

“This is not a case where I lose sleep at night. This is not some case where I have people with disabled children, where I have people who can’t afford to make next-month’s rent”…If I made light of anything, if I joked more than I should have, if I occasionally used a sarcastic tone…it’s not that I’ve lost track of what this case is about…”

No doubt we’ll hear more about the dissolution of the Levine’s 22-year marriage…as for me, I really didn’t like their cheesecake at all!

Lawdiva aka Georgialee Lang

Silicon Valley Tycoon Convinces Court His Wife’s Scam is Designed to Avoid Pre-Nup

10950859361151CDPClyde Berg and his brother Carl Berg are two very wealthy men. They developed and built huge campuses for a number of successful Silicon Valley businesses, and sold their firm for $1.3 billion. But the old adage that money does not buy happiness is clearly illustrated in the divorce proceedings between Clyde, age 75, and his estranged wife, Ellena Berg, age 38. The first obvious comment is why a man in his 70’s thought he could sustain a relationship with a woman more than thirty years younger than him.

After ten years of marriage and an iron-clad prenup, Ms. Berg accused her husband of vicious abuse, including outfitting her with a spiked dog collar, tying her to a bed, and sexually assaulting her with a golf putter while she was nine months pregnant, an attack where she testified she was restrained for two days before freeing herself. But the presiding judge wasn’t buying what Ellena was selling and determined that she fabricated the entire incident. In dismissing the charges at a preliminary hearing Judge Ron M. Del Pozzo said Ms. Berg’s evidence “was not worthy of belief” and queried whether it was “flat-out-lying” or the product of being mentally ill.

Judge Del Pozzo rejected Ms. Berg’s absurd suggestion that while tied down she dialed 911 with her tongue borrowing a quip from Johnny Cochrane in the OJ Simpson trial: “If the tongue can’t dial, there’s not going to be a trial.”

As for Ms. Berg and her lawyers they retaliated by suggesting to the Judge that the District Attorney’s office was bowing to the “political and economic power” of her husband, a charge that was vigorously denied by the Crown who said: “We make prosecutorial decisions based on the evidence in the case, and not the money in the defendant’s bank account.” Of their client’s testimony, which consisted of ” I can’t remember” said forty-four times in ninety minutes, they argued that she suffered from post-traumatic stress disorder because of her husband’s abuse of her and ill-treatment from the prosecutor’s office.

Meanwhile, Mr. Berg registered his displeasure with the Crown office saying they should have dropped the charges against him and not proceeded with the weeklong hearing, contending he was the victim of his wife’s scam designed to circumvent the pre-nuptial agreement signed by her.

The pre-nup signed by the parties provided Ms. Berg with $2 million dollars if their marriage ended. She earned $200,000 a year for her trouble. Mr. Berg spent nine days in jail and later spent months with an electronic ankle bracelet, and was ousted from his home following his wife’s report to the police. But he was most distressed about the removal of his beloved Weimaraner dog who was taken away from him as his wife also accused him of beating the dog.

Lawdiva aka Georgialee Lang

Enraged Husband Attacks Wife in Court After Child Support Order Pronounced

_DSC4851Catherine Gonzalez, age 23, was forced to go to court to get an order that her husband pay child support, an application that is brought routinely in family law courts across North America, when a parent refuses to pay support voluntarily.

Her husband Paul Gonzalez Jr., a former Marine, was enraged when Judge Geoffrey Cohen made the order and stormed out of the Judge’s chambers. But he returned, and attacked his wife, in front of Judge Cohen and her lawyer, pummeling his wife with his fists. Ms. Gonzalez suffered significant injuries including a broken nose, a broken jaw, a torn lip, a concussion, and severe bruises to her face and eyes.

The beating ended with the intervention of Ms. Gonzalez’s lawyer and court bailiffs who confronted Mr. Gonzalez with a stun gun.

The Court threw the book at Mr. Gonzalez, sentencing him to 15 years in prison for the brutal assault on his wife, despite testimony from the a psychologist that he suffered from bi-polar disorder and post-traumatic stress disorder.

Judge Cohen was particularly incensed by Mr. Gonzalez’s attack in a court of law, where participants had every right to feel safe. The sentence he imposed was more than three times Florida’s maximum sentence for aggravated battery.

Earlier, Ms. Gonzalez had sought a restraining order against her husband but couldn’t persuade a judge to make that order.

In courts in British Columbia where counsel are concerned that one of the parties may become violent, a special request is made to ensure that a sheriff is in the courtroom during the hearing.

It is a shame that Ms. Gonzalez’s fear of her husband’s threatening behavior was not taken seriously, by anyone

Lawdiva aka Georgialee Lang

Why Family Law Lawyers Will Always Bill By the Hour

GEO CASUALI read a piece in the Huffington Post this week written by Jim Halfens of Divorce Hotel, who argued that it was about time that divorce lawyers charged a fixed fee for the legal work they perform, instead of sticking to the “old way” of hourly billing.

It will never happen and for good reason! If Mr. Halfen knew the frailties of the family court system and the opportunities for abuse and delay, he would understand. But let me paint you a picture of regular occurrences in the practice of family law;

A client asks you to draw up a comprehensive separation agreement or prenuptial agreement, which without complications will cost in the range of $3,000. The problem is that often clients will request the agreement, expend the funds, all without having any idea whether their spouse will agree or sign the agreement.

Of course, it is an utter waste of time to present an agreement to your spouse, the terms of which have never been discussed with him or her. My practice is to warn clients that they may be wasting money, if they haven’t bothered to determine if their spouse is “on side”.

Once the client believes their spouse will cooperate, it is a “go” for the agreement and usually clients want to know exactly how much it will cost and want you to guarantee that fee estimate.

But it can’t be done….because every agreement and spouse is different and you can never rely on a client’s advice that their situation is straight forward. For example, it is commonplace to ask your client to provide you with a list of all their assets, their estimated values, and also their debts and the amounts owing. You also need the same information from their partner.

Of course, you can’t forget to request their recent personal and corporate tax returns, and in the case of companies, the financial statements as well. While the client may imagine their financial situation is simple, usually it is not, particularly where there are more sophisticated assets, like trusts, annuities and off-shore assets. But you don’t know any of that until you receive all the documents and my experience is that you never get everything you need or it trickles in over a lengthy period of time.

Lawyers bill for their expertise and the time it takes them to complete a task for their client. In this agreement scenario, it would be foolish to quote a fixed fee for ten hours of time, when it may take you twenty hours, or more. Another difficulty is that once the agreement is complete, your client’s partner will take it to her or his lawyer to review and negotiate. That could take two hours or ten hours, because initially you don’t often know who your client’s spouse will retain. One thing lawyers know is the negotiation styles of their colleagues, some lawyers are known to be reasonable, but others are not.

However, the agreement scenario is a piece of cake compared to the living nightmare if you must enter the family justice system, once negotiation and mediation have failed.(Unless of course, you are smart enough to agree to a private arbitration, but that’s another article) If you thought your lawyer was expensive before, this calamity will cost you not only heaps of money but also your emotional and psychological sanity. Where to begin?

After all the negotiations and mediations are at an end, the first thing you’ll have to do is attend a mandatory mediation with a judge, who may or may not be capable of facilitating a settlement. But it’s not like you haven’t already been there, done that. This first step will cost you several thousand dollars and it is not optional in most cases.

Once that has been a complete bust, you enter the nightmare called family law litigation, an experience that frightens even those who are courtroom addicts. The first shock is that you must produce every single piece of paper that has anything to do with the issues in your case, and I mean everything: your kid’s report cards, your kid’s medical records, all paper that is related to your assets and debts, including statements for long-lost bank accounts, credit card statements for the past five years, business records and financial statements, tax returns, and all the damning emails your spouse has sent to you, but that’s just the beginning.

Speaking of emails, most lawyers spend a lot of time reading lengthy email missives from their clients, and also multiple strings of nasty emails between client and his or her spouse, many of which will be producible for court. Hard to predict in advance whether you’ll need to read a hundred emails or several thousand. And don’t forget your lawyer will regularly scour the internet for damaging posts and pictures.

You’ll need to hire appraisers: lots of them, to value your home, your summer cottage, your cars, your boat and trailer, your wine collection, art collection, antique furniture, and your pension. But none of those appraisals will be definitive because your partner will do the same, and if you have a business, you need to set aside $30,000 or more to pay a business valuator. Welcome to the battle of the experts!

Worse than all of that is that when you finally prepare to go to court, you’ll get there and sit in a courtroom all day, only to learn that you have to come back another day, because the judge ran out of time. More delay and more costs because all that work your lawyer did to prepare, must be redone to prepare again, after all, your lawyer has dozens of clients and with even a delay of one week will not remember all the details without another review. You finally get a judge and you learn that you won’t get a decision for weeks, even months.

Tell me honestly, how do you provide your client with an infallible estimate of what it all will cost? That’s right, you don’t, because you can’t.

Lawdiva aka Georgialee Lang

Lawyer Botches Adoption, Sued for Dead Infant

DSC01152_2 (2)_2Rachel and Heidi McFarland were thrilled with their little baby boy, who they adopted as a newborn from the infant’s 15-year-old mother. They loved him and cared for him for two months, but then received advice from their lawyer, Jason Rieper, that their son, named Gabriel, needed to be returned to his mother, Markeya Atkins.

Lawyer Rieper told the Des Moines couple that if they wanted to continue with the adoption he would need more than $10,000, but he didn’t explain to them why the money was needed. Rachel and Heidi were devastated, writing Mr. Rieper a letter indicating their desire to continue with the process. Mr. Rieper responded with a letter outlining Ms. Atkins “troubled youth” and her abuse of drugs. A few days later, Mr. Rieper showed up at the McFarland home, told them they had a slim chance of a successful adoption, and took the child to his birth mother. He advised them that a judge would likely side with the birth mother in any court proceeding.

Within five weeks of Gabriel’s return, he was dead and the child’s father, 17-year-old Drew James Weehler-Smith was charged with first degree murder. What the McFarland’s discovered was that their lawyer had failed to obtain the mother’s signature releasing the baby to the McFarlands, a fact he hid from his clients. They are suing for negligence and also arguing that Mr. Rieper had a legal obligation to advise child protection authorities of the danger of the infant’s return.

Poor little Gabriel, another victim of child abuse.

Lawdiva aka Georgialee Lang