Feed a lawyer, or else …

Family Law

Ring Around the Rosie, Part 2


Today, December 14, 2011, I received a letter from The Commission on Judicial Performance (CJP). Letter states that CJP has determined “not to take further action with respect to complaint dated August 17, 2011…“.

The said complaint was against Santa Clara Family Court judge Neal Anthony Cabrinha for failure to prosecute perjury and for staging fake disqualification hearing involving Marine County judge Lynn Duryee and possibly Supreme Court’s Justice Ming Chin. (link1) (link2)

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Commission member Honorable Erica R. Yew was recused.

So, question arises… why? …who is she?

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Closer look at what is available on the web reveals:

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1.   Hon. Erica R. Yew was appointed to CJP by the Supreme Court of California. (link)

2.   Hon. Erica R. Yew is at the same time a member of the Supreme Court’s Judicial Council. (link)

3.   According to the Judicial Council’s website:  “The council carries out this mission primarily through the work of its advisory committees and task forces…” (link)

4.   Again, according to the Judicial Council’s website, Task Forces and Other Advisory/Working groups include (link):

……….a.   Commission for Impartial Courts, whose members are Justice Ming Chin and Lynn Duryee. (link)

……….b.   Domestic Violence Practice and Procedure Task Force, Hon. Erica R. Yew is a member. (link)

……….c.   Self-Represented Litigants Task Force, Hon. Erica R. Yew is also a member . (link)

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Commission’s decision to recuse Hon. Erica R. Yew seems appropriate, but it also means that Commission acknowledged that at least one of their members had conflict of interest in this case.

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What about recusing Honorable Judith D. McConnell, Committee’s Chairperson? She is a member of the Commission for Impartial Courts Steering Committee, where Justice Ming Chin is the chairman (link).  Judge Lynn Duryee is also a member of the Commission for Impartial Courts.

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Further discovery is needed to find out what really happened. Stay tuned; update will be available soon.

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December 14, 2011 Posted by | Family Law, Law, Uncategorized | , , , , , , , , , | 3 Comments

And God said, Let there be light…


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… and God divided the light from the darkness.

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Extrapolation of the expansion of the Universe backwards in time using general relativity yields an infinite density and temperature at a finite time in the past. This singularity signals the breakdown of general relativity. This singularity is sometimes called “the Big Bang”,but the term can also refer to the early hot, dense phase itself, which can be considered the “birth” of our Universe.
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The earliest phases of the Big Bang are subject to much speculation. In the most common models, the Universe was filled homogeneously and isotropically with an incredibly high energy density, huge temperatures and pressures, and was very rapidly expanding and cooling. Approximately 10−37 seconds into the expansion, a phase transition caused a cosmic inflation, during which the Universe grew exponentially. After inflation stopped, the Universe consisted of a quark–gluon plasma, as well as all other elementary particles. Temperatures were so high that the random motions of particles were at relativistic speeds, and particle–antiparticle pairs of all kinds were being continuously created and destroyed in collisions. At some point an unknown reaction called baryogenesis violated the conservation of baryon number, leading to a very small excess of quarks and leptons over antiquarks and antileptons—of the order of one part in 30 million. This resulted in the predominance of matter over antimatter in the present Universe.
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The Universe continued to grow in size and fall in temperature, hence the typical energy of each particle was decreasing. Symmetry breaking phase transitions put the fundamental forces of physics and the parameters of elementary particles into their present form. After about 10−11 seconds, the picture becomes less speculative, since particle energies drop to values that can be attained in particle physics experiments. At about 10−6 seconds, quarks and gluons combined to form baryons such as protons and neutrons. The small excess of quarks over antiquarks led to a small excess of baryons over antibaryons. The temperature was now no longer high enough to create new proton–antiproton pairs, so a mass annihilation immediately followed, leaving just one in 1010 of the original protons and neutrons, and none of their antiparticles. A similar process happened at about 1 second for electrons and positrons. After these annihilations, the remaining protons, neutrons and electrons were no longer moving relativistically and the energy density of the Universe was dominated by photons.
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A few minutes into the expansion, when the temperature was about a billion Kelvins and the density was about that of air, neutrons combined with protons to form the Universe’s deuterium and helium nuclei in a process called Big Bang nucleosynthesis. Most protons remained uncombined as hydrogen nuclei. As the Universe cooled, the rest mass energy density of matter came to gravitationally dominate that of the photon radiation. After about 379,000 years the electrons and nuclei combined into atoms (mostly hydrogen); hence the radiation decoupled from matter and continued through space largely unimpeded. This relic radiation is known as the cosmic microwave background radiation.
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Over a long period of time, the slightly denser regions of the nearly uniformly distributed matter gravitationally attracted nearby matter and thus grew even denser, forming gas clouds, stars, galaxies, and the other astronomical structures observable today. The details of this process depend on the amount and type of matter in the Universe. The four possible types of matter are known as cold dark matter, warm dark matter, hot dark matter and baryonic matter.
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And what about “material matter” as defined by legal theory, you may ask…

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… that is when somebody turned off the light…

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Is legal “material matter” really a dark matter?

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For those who filed perjury cases and had to deal with legal Einsteins and their interpretation of General Theory of Relativity, let’s shine some light on the topic:
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The fundamental rule of perjury law is codified in California Penal Code § 123:

“It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.”

Materiality has been defined to include anything “capable of influencing the court on the issue before it, or which has a natural tendency to influence or impede the decision of the decision-making body to whom it is addressed.”

Importantly, when applying the materiality test, California law focuses not on whether, as a matter of historical fact, the false statement probably did influence the outcome of the proceedings, but instead on whether the false statement, at the time it was made, had the tendency to probably influence the outcome of the proceedings.  In other words, under California law, materiality is evaluated from an ex ante, not an ex post perspective.   See, e.g., People v. Poe, 265 Cal.App.2d 385, 71 Cal.Rptr. 161, 164-65 (1968).

Thus, the testimony need not actually have influenced, misled, or impeded the proceeding. A potential interference with Court’s decision making is sufficient to establish materiality. The statement need not be material to any particular issue, but may be material to the subject of the inquiry in general[1]. The statement may be material to collateral matters that might influence the outcome of decisions… Thus, a statement is material if it is relevant to a subsidiary issue under consideration[2] or to an issue of credibility.


[1] United States v. Ostertag, 671 F.2d 262 (8th Cir. 1982).

[2] United States v. Sisack, 527 F.2d 917, 920 (9th Cir. 1975).

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I’m done… Somebody call PG&E. 🙂

September 21, 2011 Posted by | Family Law, Law, Uncategorized | 2 Comments

Free $1.3 Billion for consumer spending by enforcing the law


Can a simple fix of our Family Court procedures help free consumer money to jump-start our economy? I say, yes… it can!!!

 

Let’s play with some numbers for a bit.

 

There are estimated 160,000 divorces filed in California each year. 60% are now done without lawyers according to Ed Sherman in “How to do Your Own Divorce in California”, published by Nolo Press.

 

That means 64,000 divorces are handled by divorce attorneys.

 

Fighting for custody in a Court can cost a lot (says the same source) – at least $15,000-$50,000 for each side. Let’s take a median number of $30,000 per person, which is $60,000 per couple.

 

That leaves us with stunning $3,840,000,000 dollars spent in Family Courts across California, producing no real value for our economy. Not only that, but how much of that money could be spent by parents investing in their children’s education? Isn’t the education of new generation the most valuable investment that our society can make?

 

Now, let’s assume that 1/3 of these costs are not really necessary which leaves us with $1,280,000,000 (ONE POINT THREE BILLION) dollars taken out of the consumers’ pockets. Can retrieving that much spending money help our economy? You bet!!!

 

In comparison the recent news reported that Governor Schwarzenegger has reduced state employees working hours by 2-day-a-month without pay. His administration estimates that cutting worker hours would save the state $1.3 billion over the next year-and-a-half. Isn’t that the same number?

 

 

What are the causes and how can this money drain be avoided?

Keep in mind that Divorce is defined as an adversarial process, so each side is encouraged not to go easy       on each other. Don’t you think some lawyers could, would, or DO take advantage of this situation? You can bet on this one, too!

 

My own experience is a testament to that. My ex-spouse’s first attorney manipulated his client into believing that I wanted full custody of our child. Can you imagine how any mother would react when faced with the possibility of losing her child? Or any father for that matter? The stage was set for a big fight and a “cash cow” opportunity for the lawyer.

Emotions run high during the divorce, so it took my ex-spouse one and a half years to finally realize she had been played all along. $80,000 dollars later, she finally fired the crook. Our daughter ended up being shared on 50%-50% bases; something we had already agreed to even before her lawyer was hired to handle property division issues.

 

As I was not just an “innocent bystander” all these years, I talked to people who were in similar situation. I realized that “crooked” lawyers do take advantage of the fact that other lawyers (in this case your own) do not take a tough stance against other attorney’s fraudulent actions. All lawyers (and yes, even your own) are businessmen first. All of them work in the same environment and face each other long after your case is gone. “Do not hurt one of your own” is the unwritten code of their relationships. They all know each other.

 

So what remedies does one have to stop fraud, even perjury, committed by the opposing lawyer? Well, as our forefathers put the principle of “checks and balances” into our Constitution, the same mechanism was established for the Practice of Law in our country. Or, is it?

 

One has two options: Report the “crook” to California Bar, or to the District Attorney’s office. Let’s now examine those two options:

 

 

The State Bar of California

I called Cal Bar to inquire about the status of my complaint that I filed few weeks ago. The information I    received was shocking.

 

CalBar Intake Office (the office that handles and sifts through received complaints) increased the number of lawyers working on complaints from 3 to 5 at the beginning of this year. The lady on the other side of the line was proud to announce that the manager is working hard to bring those two newcomers up to speed, but unfortunately, one person is out, sick. That leaves only 4 Cal Bar lawyers to work on all the incoming complaints. What does that mean?

Bear with me while we go over this simplified mathematics assuming that the number of complaints is evenly spread over the 12 month period.

 

So, 4 lawyers, on average, are available for reviewing what has been estimated to be 100,000 complaints each year for all sorts of things, not only the family law related stuff.

 

That is 8,333 complaints per month, or over 2,000 complaints for each Cal Bar lawyer to review each month. Break it down even further and you get about 11.5 complaints per hour, provided every Cal Bar lawyer works without interruption 8 hours per day, 5 days a week.

 

How effective can that be? Is that sufficient deterrent for those “shady” lawyers who are tempted to walk the fine line, or on occasion even cross it? In addition, many clients are already overwhelmed and confused with the whole “legalese” business and they don’t even bother sending their complaints. It is too complicated.

 

Taking into the account the above statistics, if I were a “crooked” lawyer I would take my chances. I would go about my “business as usual” feeling as safe as single zebra in 10,000 zebra herd all the while the lion is walking around. I would find safety in numbers. It can’t be me that they will catch, right? And even if they do, for most part it is a reprimand that is not even listed on my official record. A slap on a wrist; I can survive that, right? So, I would keep doing what I was doing, feeling safe and keeping my pockets full.

 

 

District Attorney’s Office

I wrote an e-mail to DA’s office complaining about my ex-spouse’s second attorney’s conduct that can be classified as perjury (misrepresentation of material facts under oath).

 

At first I received “Dear John” type of a response from some clerk that told me to first complain to Cal Bar….and then,… if Cal Bar finds my complaint worthy of an investigation, they will send it to the DA’s office for their consideration,… and then, if they find it worthy they will discuss… Wow??? With such intense filtration one would be able to drink sewer water every day and live healthy and happily ever after.

In all fairness to Santa Clara County’s DA Dolores Carr, I have to report that I had received an e-mail from Ms. Carr directly, ten days after the initial “Dear John”.  It was a letter in which she informed me that DA’s office is working with the Family Court to define the parameters of conduct that would help to reduce instances of perjury.  And that was it. How effective is/was this effort? I do not know, there is no statistical data available to support claims either way.

 

 

How can this be fixed?

I am not an expert in any other field but my own: Electrical Engineering. However, being an engineer I have keen eye for detail and by recognizing hurdles that I have faced, I’m willing to put my 2 cents into the solution pot.

 

1. Double the number of attorneys in Cal Bar’s Intake unit to 10. That would bring the number of complaints to probably manageable 50 complaints per day/per person. At $100,000 annual salary for each attorney, that is less than $1,000,000 per year, including benefits and operating cost. How much is that compared to $1.3 billion waste in Family Courts only, not including all other civil and criminal cases? The number is probably much higher than that.

 

2. At the DA’s office make one person available to proactively give guidance to people who approach the office for the first time, to let them know what is required as evidence to make a complaint stick in Court.

 

It would also help to make a simple handout of items that represent the list of sanctionable conducts and support documents that would be required to prove such conduct is factual. Give some examples.

 

3. Here in California we have “three strikes you’re out” rule for criminal offenders.

 

This law is formally known among lawyers and legal academics as habitual offender law. Why can’t the same principle be used for the habitually offending attorneys? Let them know they risk losing their licenses forever if they practice law by not following the Rules of Professional Conduct as set by Cal Bar.

 

 

Would the proposed actions be enough to provide effective deterrent to “wannabe” offenders? I do not know, but I’m sure it would be worth a try.

 

 

Prosecute fraud and perjury in Family Courts?
(polls)

February 8, 2009 Posted by | Family Law, Law, Uncategorized | , , , , | Leave a comment