The Curse of the In-Person Litigant

GEO_edited-1I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

Hidden John Lennon Divorce Document Hits Auction Block

IMG_0277Almost fifty years after Cynthia Lennon divorced John Lennon, family nanny and housekeeper, Dorothy Jarlett’s estate reveals a draft affidavit that sheds light on the troubled Lennon household.

John Lennon settled his divorce action with Cynthia out-of-court, paying her $100,000 and giving her custody of their son Julian, but common to many divorce cases, documents were prepared by Cynthia Lennon’s lawyer ostensibly to “encourage” a settlement, rather than drawn-out, public proceedings.

Dorothy Jarlett wrote that she was employed by the Lennon’s at their 22-bedroom Weybridge, Surrey mansion for four years as housekeeper and nanny to Julian, although she did not live with them. While initially she only observed minor differences of opinion, with John’s frequent absences to tour, record, and make films, tension in the household grew. She said:

“I do not think that Mr Lennon showed the usual interest the father showed in the household. He was certainly not bad with Julian, but he appeared to be preoccupied with other matters.”

Later she noticed that Mrs. Lennon’s expressed wishes to accompany her husband to functions and studio recordings were rebuffed by John, usually based on flimsy excuses.

Many of the Lennon’s arguments centred on how to raise Julian, but John’s admission to various affairs during the marriage sounded the death knell for their union.

Mrs. Jarlett describes Yoko Ono’s entry into the Lennon household as a friend of John’s, a status that changes when she finds John and Yoko in bed together.

The final straw for Mrs. Lennon was Yoko Ono’s pregnancy.

The Lennons met at the Liverpool College of Art and married upon learning she was pregnant with Julian. Their five-year marriage came to an end at the time the Beatles exploded on the international music scene in 1967.

The divorce document contains passages that have been stricken by Mrs. Jarlett, including references to pot smoking and physical discipline of Julian.

The document is expected to fetch $5,000 or perhaps more if members of John’s family seek to obtain the document to ensure it remains buried.

Lawdiva aka Georgialee Lang

Family Law Firm Tells It Like It Is

DSC00258_1I don’t know about you, but I like people, companies, organizations etc. that tell you what they are really all about and where they are at.

For most of the public, law firms are not particularly transparent entities. They deal in complicated subject matters and use complex language to describe what they do, if they ever explain it at all.

Not so, however, with respect to the Columbia, South Carolina law firm of Pincus Family Law. Their firm website tells you exactly what they will do and what they won’t. Their critics say their to-the-point abruptness can’t be good for business. Consider the following excerpts from their website.

Under the heading “Client Expectations” the following paraphrased rules are set out:

1. They do not work weekends and they will not provide clients with a weekend emergency number;

2. They will not routinely respond to email from clients on a weekend, however, if they do on occasion respond, this is the exception and not the rule;

3. They are good at what they do but they are not perfect. They are human beings with the same frailties as their clients. If a mistake is made, they will fix it quickly, but they do not expect to be harangued or insulted by their clients for human error;

4. They will return client phone calls in the order they are received by the firm, subject to their assessment as to client priority. Calling their office three or four times a day will not change the priority assigned to a call;

5. Legal Assistants and Paralegals are available to answer clients’ questions and provide status updates and their hourly billing rates are substantially less than the firm’s lawyers;

6. Being “nice” to your spouse during the divorce process is a laudable goal, but do not expect to get any concessions or consideration from your spouse as a result of your civility;

7. In the litigation process, your spouse’s lawyer will file documents called “pleadings”. These pleadings will contain allegations that may be upsetting to you. Don’t waste your emotional energy fretting over these documents. The allegations are “standard-operating procedure” and may or may not be true;

8. Courtrooms are overbooked and often there are an insufficient number of judges to handle all the scheduled cases. Don’t blame us if we cannot obtain hearing dates as early as you or we would wish. We have no control over court scheduling;

9. Your spouse may retain counsel who are “nasty” or who procrastinate. Once again, that is not our fault. We will work within the rules to keep your case moving forward but we cannot be held responsible for your spouse’s lawyers’ personality disorder or their delay tactics;

10. In divorce and family law, nothing happens quickly. That’s just the way the system is, so be prepared.

My impression? I love it! I have never seen a family law firm that has more succinctly identified some of the major client issues that cause friction between attorney and client. Certainly, many divorce lawyers operate on the same terms, they just don’t do their clients the favour of telling them.

As award-winning journalist Roberta Baskin has noted, there is a public feeding frenzy for transparency, and Pincus Law delivers all of that. Kudos to them!

Lawdiva aka Georgialee Lang

Biased Judge Removed from Divorce Case

GEO_edited-1Sir Nicholas Mostyn was a formidable divorce lawyer before he was appointed a judge in London, England in 2010. Nicknamed “Mr. Payout”, he had an illustrious reputation for obtaining large sums of money for his female clients and was among the most sought after barristers for the monied upper class.

Of course, many male clients clamoured for his services and he represented Paul McCartney in his divorce battle with Heather Mills. She sought $125 million dollars but was only awarded $25 million.

He also acted for Lady Diana’s brother, the Earl of Spencer, who later sued Mr. Mostyn claiming that his second wife received $1 million more in a settlement than she deserved because Mostyn failed to advise him that his divorce proceeding would not remain private, as there had been a recent change in the law.

The Earl of Spencer was forced to settle to avoid the fall-out of a public trial. The lawsuit went nowhere.

This week Justice Mostyn was subject to a rare order from the Court of Appeal, removing him from a case he had been assigned.

It is not uncommon to hear clients complain about judges who they perceive are unsympathetic, even biased against them, but it is a rare occasion when an application to remove a judge is granted.

In British Columbia if counsel believes there is evidence to suggest that a judge may be biased against their client, they may bring an application to have the judge removed. However, the tricky part is that the application must be brought before the judge you accuse of bias.

About 99% of the time, the judge will gamely hear the application but dismiss it. These applications are infrequent, however, I remember a case fifteen years ago where I brought such an application. At the time, my legal research indicated that the chances of success were extremely slight and true to form, the application was dismissed.

As for Justice Mostyn, the complaint against him included
the allegation that he had made up his mind against litigant Mr. Mann, who had cancer, had fallen on hard times and lived in social housing. Mrs. Mann brought the matter to court in her attempt to have her ex-husband pay her $2 million she said was owed her as a result of their matrimonial matter, following their separation in 2007.

Justice Mostyn threatened to throw Mr. Mann in prison if he did not pay his ex-wife the funds owed. Mr. Mann’s lawyer also argued that the Justice was generally hostile towards his client throughout the proceedings.

The Court of Appeal judges acceded to the claim against Justice Mostyn. Lady Justice Macur referred to hearings before Judge Mostyn in February and June 2014, describing ‘intemperate judicial dialogues’ showing that Justice Mostyn had made up his mind about Mr Mann’s ability to pay.

She also said: ‘During that time Mostyn J’s frustration is palpable and clearly arises from his obvious belief that Mr. Mann is deliberately and maliciously avoiding his legal and moral responsibilities.’

A new judge has been assigned to the case.

Lawdiva aka Georgialee Lang

Hide and Seek: Non-Disclosure in Family Law

352c45a9a449851d47da3cd61856bca7At the end of a marriage, each spouse has a legal obligation to make honest disclosure of the assets in their name, possession or control. A colourful British Columbia judge called the absence of accurate disclosure the “cancer of matrimonial litigation”, and he was right.

Spouses who initiate the costly game of “hide and seek” have characteristics in common, and that is arrogance and greed.

Whether they accumulate assets off-shore, stash them in trusts and corporations, or transfer them to family members and friends, the result is the same for the non-owning spouses who must spend tens of thousands of dollars to track the concealed assets, often with limited success.

The latest player in this high-stakes game is John Sculley, the former CEO of Apple, whose business and entrepreneurial skills are legendary. Most notably he took Apple from an $800 million company to one worth $8 billion, firing Apple’s visionary founder Steve Jobs along the way.

John Sculley and his wife Carol Lee Sculley were married for 32 years when Ms. Sculley learned of her husband’s romantic liaison with an Apple employee, kept under wraps for almost ten years.

The Sculley’s settled their divorce in 2011,a process that allegedly belied John Sculley’s true net worth. He disclosed $4.8 million dollars worth of assets, and according to Ms. Sculley’s court documents, hid over $25 million in assets through a variety of corporations and the transfer of assets to his brothers Arthur and David, his co-founders in their investment firm Sculley Brothers.

Now Ms. Sculley is suing her ex-husband in Palm Beach Florida for breach of contract and fraudulent misrepresentation, seeking damages and her share of the hidden assets, a shopping list of twenty or more corporate entities. She alleges that Mr. Sculley began his asset scam ten years before the parties separated, a date that coincides with his extra-marital relationship.

At the time of their divorce and property settlement in 2011 their respective lawyers were quoted in Forbes saying:

“We’re trying to get through this as privately as possible,” said Martin Haines, Sculley’s attorney.

Said her lawyer, Josh Ferraro: “I think this will be amicable.”

Yeah, right?

Lawdiva aka Georgialee Lang

Ex-Wife Refuses to Cash Cheque for $975 Million Dollars

GEO CASUALYou may have read the headlines last fall concerning the divorce of billionaire Harold Hamm in Oklahoma. Mr. Hamm is the CEO and majority shareholder of Continental Resources Inc., a company branded as “America’s Oil Champion”.

Hamm and his ex-wife Sue Ann Arnall spent nine-weeks in a trial that was shrouded in secrecy in order to protect the business relations and corporate secrets of Hamm’s company.

The main issue at trial was whether Mr. Hamm’s business acumen contributed to the substantial increase in the value of the company during their 25-year marriage, or whether market forces were the pivotal factor in its increase in value. Mr. Hamm argued that it was not his business expertise, a position that would substantially reduce his wife’s share of Continental’s value.

Imagine a CEO suggesting that a company grew in leaps and bounds, but it had nothing to do with his talent or business skills. Unhappily for Mr. Hamm, the court rejected his theory and awarded Ms. Arnall almost $1 billion dollars. But don’t feel sorry for Harold Hamm, he retained the company and a large chunk of his enormous wealth, totalling about $2 billion dollars.

Hamm’s lawyer declared it a victory, however, as the price of oil fell, and Continental shares lost value, he returned to court to persuade the judge to order a downward adjustment of his wife’s portion of the assets. The Court refused.

Meanwhile, Ms. Arnall was never happy with a third of the assets and filed an appeal.

Earlier this week, Mr. Hamm sent a cheque to his ex-wife for the sum of $975 million, but following her lawyer’s advice she refused to cash it, concerned that her acceptance of the money would prejudice her appeal.

Her refusal to take the money reminds me of a case I handled a decade ago. In my case the parties had a marriage agreement which provided that if the marriage ended, the husband would pay the wife the sum of $2 million dollars.

Sadly, the marriage ended, and as counsel for the husband I advised him to send a cheque for $2 million to his spouse. By then his wife had made it very clear through her lawyer that she believed the agreement was unfair and that $2 million was not nearly enough.

My client reluctantly provided me with a cheque that I delivered to his wife’s lawyer. A few days later she sent the cheque back to me. Another few days passed and I sent the cheque back to her. This time she kept it and cashed it. At the time, the interest rates were very high and my calculation of lost interest on the funds was substantial. A trivial matter for the very wealthy…

It’s “wait and see” as to how Ms. Arnell fares with her appeal, but she must be bolstered by the trial judge’s comments that she may be eligible for spousal support. Hard to believe that $945 million is not enough money to support yourself!

Lawdiva aka Georgialee Lang

And Now the End is Near- 2014 Highlights

BarristerFor me, 2014 was fulfilling, both personally and professionally. On the work side, I arbitrated some interesting family law cases, handled several Hague Convention child abduction cases: one that saw the successful reunion of father and child after an abduction from Portugal to Canada, and the other an appeal from an order that a child be returned to Montana.

Personally, I found time to workout with my incredible trainer, Janice; enjoy neighbourhood cook-outs and pool parties; sing in my choir; brainstorm ideas for a book on women in leadership, and enjoy the beauty of California and B.C’s Okanagan.

Meanwhile my contribution to the blogosphere continued throughout the year, with the following highlights:

1. Shared parenting: MP Maurice Vellacott’s bill on shared parenting crashed and burned when the Liberals and most of the Conservatives voted against it in the earliest stages of second reading.

Despite it being a part of Harper’s election platform, only a few brave backbenchers supported the bill. In retrospect it is likely that the focus on a strict equality of parenting time, instead of an emphasis on shared parenting that could see one parent with less than 50% depending on the work and school schedules of parents and child(ren), led to its early demise.

2. New Prostitution Law: On December 6, 2014 the Conservative government brought into effect their new law, based on the Nordic model adopted in Sweden, Norway, Iceland and other European countries.

After the Supreme Court of Canada struck down Canada’s previous law in 2013, which did not criminalize prostitution, but made it illegal to solicit for prostitution, operate a common bawdy house, or live off the avails of prostitution, Justice Minister McKay’s new bill was reviled in many quarters.

The new law criminalizes prostitution for the purchaser of sexual services, while women, girls, and boys who sell sex are no longer subject to legal sanctions. They are treated as exploited victims, with the goal of helping them escape the sordid life of prostitution with its inherent danger.

3. Conscious Uncoupling: Amid mockery and snide remarks, Gwyneth Paltrow introduced “conscious uncoupling” to the world of divorce, as a softer and gentler way to separate and divorce. The details of this model remain elusive but months after its debut, it has found little favour in the real world.

4. Trinity Law School: Conflict and consternation abound when Trinity Western University’s governmental approval to open a Christian law school was announced. British Columbia lawyers railed against the governors/benchers of the Law Society who voted 21 to 6 to permit Trinity law graduates to article in B.C.

The majority of B.C. lawyers who voted at a special meeting, denounced the governors’ decision to permit Trinity students to article in B.C., alleging that Trinity’s community covenant that only permits sexual relations between married, opposite sex couples amounted to sexual discrimination and a breach of human rights.

The Law Society eventually capitulated and adopted the views of Trinity’s critics. The matter is now before the Court in B.C. and in other courts across Canada where the same position prevailed.

5. Madam Justice Lori Douglas: After several years of missteps, rancour, judicial resignations, and the interference of the Federal Court, Judge Douglas finally put an end to the Canadian Judicial Council’s inquiry into the collection of nude photographs of her placed on the internet by her husband, the late Jack King, a well-regarded family law lawyer in Winnipeg, by announcing her resignation from the bench.

The entire exercise highlighted the flaws of Canada’s system of judicial discipline and Judge Douglas’ resignation was welcome relief from the embarrassing sideshow the inquiry had become.

Here’s looking to 2015 with great anticipation for a new year full of juridical intrigue, legal entanglements, and matrimonial mishaps.

Happy New Year!

Lawdiva aka Georgialee Lang