Monday, January 12, 2015
‘We Refer to the Parties by Their First Names…Not Out of Disrespect.’ Balderdash.
By ROGER M. GRACE
At a meeting of the Italian American Lawyers Association last year, Court of Appeal Presiding Justice Arthur Gilbert, for whatever reason, recounted my having sent him a letter several years ago, with the salutation, “Dear Artie.”
While I had no recollection of having sent the communiqué, my obvious aim was to draw attention to his reference in an opinion to adult parties, by their first names—a common practice, particularly in family law cases, but one I contended was inappropriate.
He told the gathering that ever since, when he’s used first names, he’s explained in a footnote that it was for sake of convenience and no disrespect was intended, noting that this has become a common practice among the appellate jurists.
It still strikes me as effrontery, and I question its utility. If the appellant is John Doe and the respondent is Jane Doe, it’s simple enough to refer to “John Doe” rather than “John” and “Jane Doe” instead of “Jane,” tossing in some references to “the appellant” and “the respondent” for variety, or using phrases like “her former husband.”
Anyway, I don’t know how anyone can rationalize reference in a Court of Appeal opinion to former spouses as “Ron” and “Tiffany” when the erstwhile husband’s surname is “Cobert” and the ex-wife goes by the last name of “Krog.”
The holdings of the opinion from this district’s Div. One—filed Tuesday and not certified for publication—are not particularly noteworthy…but the manner in which the parties and their attorneys are identified is.
While a footnote in the opinion declares that “[w]e refer to the parties by their first names for ease of reference and not out of disrespect,” how can anything other than disrespect be inferred where the parties do not have a common last name? No confusion could possibly result from alluding to “Cobert” and “Krog” instead of “Ron” and “Tiffany.”
Rendering the opinion all the more ludicrous is that, with atypical formality, it refers to Cobert’s attorney, Linda N. Wisotsky, as “Ms. Wisotsky” and to Robert Sainburg, Krog’s lawyer in the trial court, as “Mr. Sainburg.”
So, there are curious sentences in the opinion, marked partly by stiffness and partly by impertinence, such as:
“In a March 31, 2009 letter, Ms. Wisotsky stated that settlement appeared impossible unless Ron signed Tiffany’s proposed judgment, and re-sent interrogatories that Mr. Sainburg denied having received earlier.”
The opinion creates a caste system, with lawyers lent deference, mere parties denied common courtesy. Under the approach utilized, if a party happens to be a lawyer—as Krog is (employed in the law office of Glendale lawyer David DiJulio, incoming IALA president)—the disfavored status of a party prevails over her otherwise exalted station as an attorney.
Here’s a portion alluding to Krog’s role as a lawyer:
“There is no merit to Ron’s claim that de novo review is required because the trial court awarded Tiffany fees for self-representation. There is nothing in the record to suggest that the trial court awarded fees to Tiffany for the time she represented herself in this litigation. Instead, Mr. Sainburg filed two declarations with billing statements showing the amount of fees that Tiffany was charged by his firm.”
Authoring the opinion in Marriage of Krog and Cobert (the court did not label it Marriage of Tiffany and Ron) was Los Angeles Superior Court Judge Helen Bendix, sitting on assignment. Bendix is a respected judge and, for all I know, there was an insistence at the Court of Appeal that she follow the usual rule: use parties’ first names in marital dissolution cases.
Should Bendix be elevated to the Court of Appeal (and despite the instant criticism, I’d certainly like to see that) she would, it is to be hoped, depart from opinion-writing customs where a faithful application of them would make no sense.
(She is, as reported in the MetNews, in contention for such an appointment but, given the tendencies of the current governor, is apt to draw demerits based on solid judicial experience. On the other hand, she has the proven advantage, so far as judicial appointments are concerned, of being an alumnus of the law school at Yale, where the governor received his own law degree.)
Bendix was joined in the opinion by Presiding Justice Frances Rothschild and Justice Jeffrey Johnson.
Helen, Fran, and Jeff should take another look at the opinion and make some changes in it.
Changes should also be made in the training of court staff.
I was in small claims court recently, as a defendant (sued for moneys not owed, as the judge found). Prior to court going into session, the clerk was addressing adult parties by their first names.
Later that day, in the jury assembly room in the Metropolitan Courthouse, a clerk was summoning persons to the window, employing their given names.
Such informality is becoming common among youth—but to many (especially us older folk), it amounts to undue familiarity and remains viewed as presumptuous.
An earlier hearing in that small claims case was held in another courthouse. Before the courtroom was opened, a bailiff came into the hallway and bellowed: “All right now, listen up!”
This was not a barracks or a high school gym. Those being addressed were members of the public, entitled to respectful treatment by a public servant.
Such words as, “Ladies and gentlemen, may I have your attention, please” would be a more appropriate preface to announcements.
Cheryl Mason is the clerk stationed in the courtroom of Los Angeles Superior Court Judge Gregory Alarcon. I’ve previously alluded to her overbearing manner and downright rudeness. Since writing about her, I’ve received e-mails with off-the-record horror stories about her.
Posted on websites are comments such as these (and no, they’re not mine):
“[Alarcon’s] clerk is insane. She ridicules all the attorneys in open court, and shouts at them, and orders them to ‘sit and not move.’ A group of attorneys had reached out to me to sign a letter months ago regarding this woman, and I had declined because I had not witnessed what they had described. It’s now clear.”
“His clerk, Ms Mason seems to be running the show in his court room and making the critical decisions.”
“[S]he is surprisingly rude, and oversteps her bounds as a clerk. I have observed her grill an attorney on the merits of an ex parte, which is not her place, in my opinion.”
(One person called her “very helpful.”)
There was a push some years ago—sparked by then-Chief Justice Warren Burger—to promote civility on the part of lawyers. When he was on the Los Angeles Superior Court, retired Judge Larry Crispo had a sign on the bench reading, simply, “Civility.”
Civility should also be engendered in Court of Appeal justices and courthouse personnel.
INDIGNANT LAWYER’S DEMAND—Every now and then, the MetNews receives a request from someone to remove from its website an old story reporting a decision by the Court of Appeal. Typical among such requests would be that of an ex-convict entreating us to get rid of an account of his crimes because potential employers might see it in Googling his name.
Our answer is “no” because what happened happened; newspapers don’t “expunge” records; and, in any event, the opinion we reported on remains available in online databases.
A request—actually, bordering on a demand—now comes from a Ventura attorney, Steve Pell. He says in an e-mail:
There is disparaging false claim that is on your website at URL http://www.metnews.com/articles/2013/free101713.htm
I’m troubled that your website—which is associated with reporting, reviewing, reputation management, and the legal industry—would allow that any statements be published without some means to verify the claim and without allowing the concerned party to contest the claims.
I consider these false claims to be an unfair detriment to my legal practice and damaging to my ability and right to practice law undisturbed. Thank you in advance for removing these false statements—I sincerely appreciate your assistance in this matter.
Please remove these false disparaging claims within 30 days of this request date (January 6, 2015).
He asks that “[q]uestions or concerns may be directed to my reputation management company” which he identifies.
You’ll notice he did not specify what statements he alleged to be false.
The article in question (unbylined, but, in fact, written by longtime staff writer Kenneth Ofgang, an attorney) reports:
The Court of Appeal for this district yesterday ordered a Ventura lawyer off an appeal he was retained to bring.
In a per curiam opinion, Presiding Justice Arthur Gilbert and Justices Kenneth Yegan and Steven Perren of Div. Six, acknowledged that the action was unusual. But they said that Steve Pell had been given four chances to file a proper brief, had muffed all four, and had rendered ineffective assistance to his client.
The court rejected the attorney general’s motion to have the brief stricken or the appeal be deemed abandoned. “We do not punish appellant for the ineptitude of his counsel,” the justices wrote.
Pell did not return a MetNews phone call seeking comment.
The defendant, Jeffrey Troy Freeman, is serving 15 years to life in prison, plus a consecutive 18-year term.
The court explained that the first two briefs filed by Pell were rejected, on the attorney general’s motion, “because they did not set forth comprehensible statements of the facts, issues presented, and the applicable law.” The attorney general did not object to the third brief, the justices noted, but the court deemed it inadequate after oral argument and vacated the submission of the case on its own motion.
“We also advised counsel that failure to follow the Rules concerning briefing could result in a variety of sanctions against him, including removal as attorney of record,” the court wrote. “Our admonition went unheeded.”
The court then asked the clerk to send Pell an exemplar brief. But the fourth try was little better, the justices said. Under the circumstances, they said, they were left with little choice but to remove Pell on their own motion.
The California Appellate Project was asked to contact Freeman and advise him of the court’s decision and of his right to seek appointed counsel if indigent.
State Bar records show that Pell was admitted in 1976 and has no history of discipline. The court ordered that a copy of its opinion be sent to the State Bar.
The case is People v. Freeman, 13 S.O.S. 5287.
The opinion now appears at 220 Cal.App.4th 607.
The MetNews report of that opinion is entirely accurate. Any California lawyer worth his weight in salt should know that under Civil Code §47, a report by a “public journal”—which under decisional law includes newspapers and websites—of statements made in a judicial proceeding or “in the course thereof” are privileged and thus do not give rise to liability.
Whether guided by a “reputation management company” or proceeding on his own instincts, it is incredible that Pell would, by his insistence that we rip an article from our website, draw renewed attention to the 2013 opinion from Div. Six.
That opinion quotes from, and by necessary implication finds applicable to Pell, a 1991 California Supreme Court opinion saying that a retained lawyer may be ousted by a court “only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.”
It even hints that Pell had committed a contempt, saying:
“Counsel’s briefing has unreasonably interfered with and disrupted the orderly process of this appeal.”
If Pell is intent upon resurrecting his reputation, he is ill advised, or mistakenly inclined, in contacting a newspaper that accurately reported denigration of him in a public record—that is, an opinion rendered by the Court of Appeal—and brazenly calling for removal of the online version of the report. Through his comical effort, what he has done is to invite a further look at an official recitation of his professional incompetence.
Copyright 2015, Metropolitan News Company