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

Witty Judge Pens Acerbic Judgment

GEO CASUALMr. Justice Joseph Quinn of the Ontario Superior Court well-deserves his international reputation as a clever intellect, a raconteur of immense talent, and a really funny scribe.

In one of his latest judgments, The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al., 2014 ONSC 583, his acerbic wit shines as he records his fond memories and legal findings of a 72-day trial, spread over three years, that dealt with the allegedly fraudulent sale and purchase of a hearing aid business in Niagara Falls, Ontario.

The star witness in the case was Stefan Fridriksson, an audiologist who purchased a hearing aid business from the corporate defendant. While his lawyer referred to him as “Dr.”, Quinn J. put an end to that designation upon learning that the title was prohibited by the College of Audiologists and Speech-Language Pathologists of Ontario.

Blessed with an orderly mind, Justice Quinn set out a Table of Contents with headings that include:

“Is There a Doctor in the House?

“Fridriksson plays Lieutenant Columbo with Inspector Clouseau results”

“All the Madness That’s In Your Head”

“….Nor Hell A Fury Like an Audiologist Scorned”

“Fridriksson The Fabricator”

While trial counsel usually turns to the back page of Reasons for Judgment to see the results of a trial, in this case, the Table of Contents gave it all away.

Yes, the trial got off to a shaky start, described by Justice Quinn in his first paragraph:

“Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.”

Unfortunately, the first witness was Dr., no make that Mr. Fridriksson who according to Quinn J. “sub-let the witness box for 26 days” with dire results:

“He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began.”

Fridriksson turned out to have a less than credible curriculum vitae. Where he noted he was a professor he wasn’t, when he said he was an adjunct professor, he wasn’t that either. What was he? An unpaid lecturer!

But that was the least of his problems. The Court identified the often troublesome task of determining credibility:

“We have no special powers in that realm and, wherever possible, avoid reliance upon darts, dice and Ouija boards. However, rarely, has a witness generously offered up so many reasons to be disbelieved. Fridriksson was an evidentiary gift who kept on giving. He ignored rule number one
in the Litigants’ Credo: “Know thyself, because others soon
will.” Enough of this preamble. Come with me now on a visit to the phantasmagorical work of Fridriksson. Pack light.”

But the quips keep on coming, like an avalanche:

“For Fridriksson truth is like a spandex undergarment:he can stretch it to fit anything.”

“Readers must never forget. This is a key witness for a plaintiff alleging oral false misrepresentations.”

“I do not know who enjoyed this cross-examination more, me or (defendant’s counsel). The only thing missing was popcorn.”

“His testimony deserves a special descriptor, coined for the occasion: “incredibull.”

This judgment tickled me so much that I recommend you read all 326 pages…it’s a laugh a minute. Oh, yeah, Fridriksson was awarded $423.00 in damages.

One last zinger:

“Fridriksson has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure,” the judge writes.

Lawdiva aka Georgialee Lang

Judge Sentences Family Lawyer to Jail and Hefty Fine for Alleged Sarcasm

DSC00507 (2)I guess he woke up on the wrong side of the bed….what else could explain the short-tempered reaction of Chief Judge A.J. “Buddy” Welch Jr. of Henry County Juvenile Court in Georgia to family law lawyer Ella A.S. Hughes?

In the midst of his decision to remove Ms. Hughes’ client’s children from their home and into the custody of the child protection authorities, the following exchange took place:

“Judge Welch (to Hughes): “That expression, ma’am, just cost you $100. You are removed from the court approved list.”

Hughes tries to speak up, but Welch tells her to stop.

Judge Welch: “Your sarcastic looks and your sarcastic attitude is unacceptable to this court. You are removed from the appointed list. You can reapply at some other time. You can stay on the cases that you presently have but if I ever see that action from you again I can assure you that appropriate actions will be taken. Do you understand that, ma’am?”

Hughes: “Yes, sir.”

Judge Welch: “You may not like my rulings but you can surely appeal them.”

Hughes: “If I may, Your Honor, the only thing I did was bow my head to write down what you were saying.”

Welch: “No, ma’am. You did not. Now you have tested the court’s patience. I find you in willful contempt of this court. You are fined $1,000 and you are given 10 days in jail. Take her into custody. I want the record to reflect that the attorney I just had to hold in contempt was not just bowing her head but she was giving sarcastic, unprofessional looks, body action that showed her disgust for the court’s ruling and disrespect for the court in its entirety.”

And off she went to jail…for a few minutes…paid her fine and headed to the courtroom where her next client awaited her.

The Georgia Appellate Court overturned the contempt finding made against Ms. Hughes…Just another day in the life of a trial lawyer.

Lawdiva aka Georgialee Lang

Judge “Flabbergasted” By Lawyers Who Ignore Litigation Rules

BarristerIn a deservedly condescending judgment from the English High Court, Family Division, one can feel the frustration of Mr. Justice Holman as he describes the “titanic” litigation between Sandra Seagrove and Lawrence Sullivan, the unmarried parents of three children, ages 23, 20, and 10 years old, who looked to him to sort out the single issue of the division of the home they shared during their 20-year common-law relationship.

Noting that the couple spent only a few days to litigate parenting issues, Justice Holman pointedly observes that Ms. Seagrove has expended $800,000 and Mr. Sullivan over $500,000 in legal fees on a piece of property that is worth less than a $1 million dollars, amounting to a legal conundrum worth half of that.

But Judge Holman identifies another problem and that is counsels’ inability to follow the Rules of Court, rules enacted to control the needless expansion of family litigation, to ensure that cases are managed proportionately to their value to the litigants.

He quotes the Rule that provides that counsel may only submit 350 pages of documents, limited to one A4 size ring binder or one lever arch file, and the Rule that limits the number of case authorities to ten, unless the scale of the proceeding warrants it.

To his dismay, both sets of counsel, a senior and junior for each party, have paid no attention to the established practice directions or the recent decision of Mr. Justice Mostyn on document production, and the maximum number of cases to be relied on. Justice Holman says:

“Having referred to the completely disproportionate costs that have been incurred, I turn now to the documentation which underlines the scale and intensity of this dispute.

There were delivered to the court yesterday, or the day before, five large lever arch bundles of documents, which comprise over 2,000 pages, inclusive of the respective skeleton arguments, which are each just under 25 pages.

There were also delivered to the court two large bundles and one more slender bundle containing no less than 32 authorities. As if that were not bad enough (as I will later describe), I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever arch files of additional documents (these are the ones with lavender coloured card on their spines).

I have been told that those additional five bundles contain around a further 1,500 pages of documents. So, in aggregate, at the outset of this hearing, these parties are expecting consideration of all or part of 3,500 pages of documents as well as all or part of the 32 authorities. This needs to be considered within the framework that rule makers and the most senior judiciary have endeavoured to establish in order to ensure the proportionality of litigation.”

Mr. Justice Holman next entertains counsels’ submissions justifying their wholesale disregard of the Rules of Court, dismissing them in short shrift, and reminding counsel that courts cost money to run, and that if they wish to overindulge they are best to go the route of arbitration!

A slap in the face indeed, as it is well-known that one of the benefits of arbitration is reduced time, paper and costs!

The judge’s remedy? An adjournment to the next day and the following order:

“Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now. All the bundles of authorities will be taken away from this courtroom now.”

The postscript to the reported judgment of Seagrove v. Sullivan 2014 EWHC 4110 is:

“[NOTE: On the following morning the parties announced that they had reached a comprehensive settlement; and the judge was invited to make, and did make, a “Tomlin order” in which their detailed agreement is contained in a confidential schedule.]”

Why does a judge need to embarrass and humiliate counsel, including two Queen’s Counsel, to ensure that time and money is not frivolously wasted, and how unhappy were the parties when they received the judge’s indictment of their high-priced counsel?

Tough Talk With Judges: Dore v. Barreau du Quebec

The Canadian courtroom is not a venue for the faint of heart. It is “ground zero” for our adversarial system of justice, pitting the state against a criminal accused; corporate titans battling competitors; spouses jousting to establish a fair division of the spoils of their marriage; and average citizens seeking redress for motor vehicle accidents, human rights complaints, estate disputes and so many other legal matters that are part of everyday life.

“See you in court” is a threat that is feared by most people, with the exception of trial lawyers, who have studied, practiced and for the most part, crave the adrenalin pumping through their veins, like gladiators entering the arena.

In hard-fought cases, clients expect their lawyers to champion their cause aggressively with a “take-no-prisoners” zeal. Many trial lawyers are proud to be called “a bulldog, a bruiser, a basher, a pit-bull” and other normally unflattering nicknames.

Within this milieu it is inevitable that advocates will lock horns with opposing counsel, and judges and lawyers will occasionally spar with one other. However, there is a fine line between passionate argument and unchecked invective when the heat in a courtroom accelerates.

In a 2012 decision from the Supreme Court of Canada, Dore v. Barreau du Quebec, lawyers and judges alike have been provided with guidance on courtroom etiquette that balances an advocate’s duty to aggressively defend a client, with their obligation to maintain professional decorum.

Quebec lawyer Gilles Dore was representing an accused in a criminal matter involving a Hells Angels prosecution before Quebec Superior Court Justice Jean-Guy Boilard. During Mr. Dore’s submissions, Judge Boilard chastised Mr. Dore, saying “an insolent lawyer is rarely of use to his client”, and later criticized Mr. Dore for his “bombastic rhetoric and hyperbole” and dismissed his “ridiculous” application.

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

Mr. Dore also wrote the Chief Justice of the Quebec Court and the Canadian Judicial Council about Judge Boilard’s behavior.

Canada’s Judicial Council determined that Judge Boilard’s remarks were “insulting and unjustifiably derogatory…displaying a flagrant lack of respect for an officer of the court”. The Council also reviewed Judge Boilard’s track record and noted he had “a penchant for leveling personal, denigrating attacks against lawyers”.

Judge Boilard responded by removing himself as trial judge on the Hells Angel’s trial, while Mr. Dore was defending himself against a complaint made to the Barreau du Quebec, who ultimately found that his letter to Judge Boilard was “likely to offend and was rude and insulting”. Mr. Dore had his license to practice law suspended for 21 days. His suspension was upheld by the Quebec trial and appeal courts.

Canada’s highest court in a 7-0 decision, agreed with the lower courts, but held that judges are not fragile flowers unable to withstand withering critiques from lawyers who argue before them.

Madam Justice Rosalie Abella said “Lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.”

Judge Abella also recognized the conundrum lawyers face when provoked by opposing counsel or members of the bench noting, “…it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility.”

This case is important, not only for addressing the difficult topic of conflict between counsel and the Court, but also in providing a framework for lawyers and other players in the justice system to understand the boundaries when speaking out about flaws in the system they work in.

While lawyers enjoy freedom of expression, their words must still be chosen wisely in order to balance their obligations to their clients, with the professionalism required of them by their governing bodies and the public.

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

Child Custody Dispute and Abduction Precursor to Murder of Father and His Family

DSC00275_1A Mississauga family: father, mother and adult son, were systematically eliminated in what police say may be revenge and payback arising from a high conflict custody case, resulting in this week’s arrest of 34-year-old Melissa Merritt and her common-law spouse, Christopher Fattore, age 37.

This bizarre case is the ultimate tale of “truth being stranger than fiction”, but it began so happily when Melissa Merritt and Caleb Harrison met and began living together in 2000.

Two children followed in quick succession and they married in 2003. However, domestic violence marred their union and the couple split in 2005 after Caleb was convicted of assaulting Melissa.

A month after their separation Caleb drove drunk, killing a taxi driver and injuring four teenagers. He was sentenced to 18 months in prison and his mother, Bridget Harrison, took over the care of the children.

From there the battle lines were drawn… but the tragedies did not subside. In 2009 Melissa’s father-in-law, Bill Harrison, suddenly died at the home he shared with Bridget, his death attributed to a heart attack.

A month later Melissa abducted her two children, remaining at large for several months. Upon her return, she was convicted of criminal child abduction but served no jail time. Her access to the children, however, was now limited to every second week-end and specified holidays.

Almost a year after Bill Harrison’s death, one of the grandchildren found Grandma Bridget dead at the bottom of a staircase in her home. Suspicions were heightened with the second Harrison death in twelve months.

In the meantime, a fire destroyed the home Melissa shared with her common law spouse and their four children. The couple lost everything, but the custody battle still raged, and in 2013 Melissa filed a court application for joint custody.

A month later Caleb Harrison was also dead, and police began an investigation into the deaths of three family members in five years.

In January 2014 Melissa Merritt and her spouse, Chris Fattore, were charged with first degree murder in the deaths of her ex-husband, Caleb Harrison, and his mother, Bridget Harrison.

This week Melissa and Christopher were also charged with the murder of Bill Harrison and extradited from Nova Scotia to Brampton Ontario where they remain in custody.

All six of their children are now in care. It is unfathomable that one woman could destroy so many people’s lives…of course, she is innocent until proven guilty.

Lawdiva aka Georgialee Lang