Author: Greg Herring

Appreciating 2015 and Anticipating Progress in 2016

HLG started one year ago, and with a bang.  Our first new case involved hot litigation in Los Angeles against Beverly Hills/national powerhouse, Kolodny Law Group.  We eventually achieved great results for our client and thus passed our first big litigation test.

In the meantime, we were literally building and painting walls, installing computers, replacing our initial card tables with actual (and really nice!) furniture, hanging fine art from local artists and otherwise upgrading our office into a top-rate workspace.  Thanks so much to my designer wife, Penny Herring of PK Studios, and our Legal Administrator, Erin Schaden, for making all that happen.

I am grateful for the opportunity to have added Santa Barbara family law star, Ruston Imming, as our second attorney.  Ruston brings years of inside knowledge of and experience with the Santa Barbara courts.  He presents a valuable combination of intellect, common sense, determination and professional presence.  Pushing each other to excel, we generate synergy that greatly benefits HLG’s clients.

From two initial employees, the firm has grown to seven.  Deanna Cerda joined early, and she is now our Office Manager/Billing Coordinator.  Teresa McGrath is our outstanding Legal Assistant.  Jessica West will shortly serve as our Case Manager/Document Coordinator.

Cyndi Hitsman is our super-paralegal who has extensive ESI (Electronically Stored Information)/E-discovery background and skills.  She is now also completing the rigorous Arkfeld ESI/E-discovery course.  She helps make HLG unparalleled in the 805 regarding this critical and fast-evolving aspect of the law.

Cassie Glanville recently became our third attorney.  She is a UCSB undergraduate who attended UC Hastings College of the Law.  She has recent experience practicing with a prominent San Francisco family law firm.  Cassie is already making her mark as an excellent thinker and writer; we are glad to have encouraged her return to the Central Coast.

2015 closed with Ruston and me in San Luis Obispo, litigating a challenging multi-week trial.  The whole HLG team provided close support, spending much of October and November preparing the document-intensive presentation.  We await the results.

HLG begins 2016 anticipating more progress.  Cassie is moving us to paperless efficiency.  Ruston and I are working on electronic (tablet only) hearing and trial presentations.  Erin and Deanna continue pressing toward more streamlined and client-focused operations.  Cyndi will be exercising her enhanced ESI/E-discovery skills.

A year ago I wrote that my goal in creating HLG was to provide top client service and a full commitment to the greater family law community.  Looking forward, that remains paramount. Thanks to all who helped us thrive in 2015, and to our growing team whose smarts and hard work are cementing us as the region’s family law leader.

Returning “the Law” to Family Law

Litigants reasonably wonder why parties, witnesses and even attorneys can sometimes seem to “get away” with shading the truth, fudging the facts and outright “testilying.” I have previously caught opposing parties doctoring personal checking and business records. Recently, an opposing party in one of our cases submitted into evidence “cut and pasted” portions of text messages, while misrepresenting that they constituted a full record of our client’s communications. We will timely bring that to the Court’s attention, including an associated request for hefty sanctions.

 

A recent published appellate opinion in People vs. Gallardo provides support. It reminds that the Family Courts remain subject to the same rules against offering forged or fraudulent documents and information as any other courts.

 

There, Mr. Gallardo stopped paying court-ordered child support for nearly a year. At an enforcement hearing, he denied that he was behind on his support payments. Rather, he held up a sheaf of fraudulent papers that he described to the judicial officer as cancelled checks and other documents “proving” that he owed no money. He then handed the documents to his “disbelieving” ex-wife and the Department of Child Support Services attorney.

 

A few weeks later, Mr. Gallardo re-contacted the DCSS, again providing it with fraudulent documents supposedly supporting his claims.

 

He was later prosecuted and convicted on two counts of offering forged and fraudulent documents into evidence under Penal Code section 132, and one count of forgery under Penal Code section 470(b). People vs. Gallardo upheld the conviction.

 

In discussing Gallardo with me, a Superior Court judge friend quoted one of our colleagues who had stated, “we need to put the law back into family law.” He pointed out that other recent cases also talk about the integrity of the process. “It is refreshing,” he concluded. We completely agree, and we hope this trend continues.

Domestic Violence Awareness Month

October is Domestic Violence Awareness Month. I have seen the worst examples of DV in my cases and HLG takes it seriously. We agree with National AAML President James McClaren that “we should all take the time to be even more mindful about the ways in which we can offer leadership within our communities toward more effectively addressing these issues.”
According to 32% of Fellows responding to a recent AAML survey, DV issues during divorce cases have continued to increase throughout the past five years. 36% have noted a rise in divorce cases involving restraining orders. 63% of our Fellows also believe that courts should better address DV.
McClaren emphasizes that the research is overwhelmingly clear that DV traumatizes children and has lasting effects. “Attorneys and judges are often the first people that a victim or perpetrator may confide in and subsequently reveal the initial details of [DV].”
Retired Kentucky Judge Jerry Bowles is a respected expert who has successfully led efforts to have courts better address DV. He will be a keynote speaker at a presentation during our annual AAML meetings next month. He indicates that DV is a multilayered and complex issue and that there are often several types of abusive situations:

• Abusive-Controlling and Violent (ACV): also called intimate terrorism and coercive control where one spouse intimidates and limits the other spouse in order to dominate and control. This can include limiting access to financial resources and other relationships as well as threats to harm a pet, have the dependent spouse fired from a job and other attempts to make the dependent spouse nearly incapable of separating.

• Conflict Instigated Violence (CIV): often involves both spouses who have limited conflict resolution skills.

• Violent Resistance (VR): occurs when the less powerful spouse uses violence to defend against an abuser.

• Separation Instigated Violence (SIV): isolated acts of violence predicated on the stress of separation and divorce where there has been no history of ACV.

McClaren writes, “victims of [DV] are very unique clients that require a sophisticated form of representation that underscores sensitivity to the trauma caused by long term abuse. Skilled mental health services are also necessary to assist the clients in moving out of the role as victim and resuming life as a competent adult.”
At HLG, one of our first lines of questioning for new clients concerns the potential existence of past or ongoing DV. We also fight to avoid future DV, often by working to at least limit unproductive party communications and other interactions. Especially with the increasing prevalence of harassment through texts and other electronic communications, our office is technologically equipped to immediately download evidence and run to court for emergency orders. With support from recent anti-DV cases like Evilsizor v. Sweeney ((2014) 230 Cal.App.4th 1304), we have achieved anti-DV success on multiple occasions.
To better examine the ways in which family lawyers can help improve the legal system to better assist DV victims, the AAML has also established a national task force. Per McClaren, “[i]t has been empowered to actively explore collaborations with existing governmental and nongovernmental entities, address domestic violence in a variety of communities and provide education for judges, lawyers, legislators and law enforcement on ways to more effectively address [DV] and its devastating consequences.” HLG will encourage, follow and report the progress.

Electronically Stored Information: e-discovery and HLG

Electronically stored information (“ESI”) is information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. Electronic Discovery, also known as e-discovery, is the use of legal means to obtain ESI in the course of litigation for evidentiary purposes.

My relationships with California ESI/E-discovery gurus, Jim Hennenhoefer and Gordon Cruse, have provided opportunities to learn about this developing area of the law. Gordon and I are members of the National AAML’s ESI/E-discovery Committee, and we have given presentations on the topic with Texas luminary, Ken Raggio. Ken’s Technology Committee consistently gives excellent talks and demonstrations at the AAML’s annual meetings. Although it’s hard to out-geek these experts, I find it an interesting and important new world that encompasses family law as it does traditional civil litigation.

Until now, California lawyers have had little ESI/e-discovery guidance at the state level. Ideas and legal opinions have issued from other states and from federal law, but none had considered California’s particular ethical rules and standards. Thankfully, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) has now done this. Last week it issued its Formal Opinion No 2015-193.

The Opinion points out that electronic document creation and/or storage, and electronic communications have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. It emphsasizes that attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.

It acknowledges that, while not every litigated case involves e-discovery, in today’s technological world almost every litigated case potentially does. “The chances are significant that a party or a witness has used email or other electronic communication, stores information digitally, and/or has other forms of ESI related to the dispute.”

Under the Opinion, attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

• Initially assess e-discovery needs and issues, if any;
• Implement/cause to implement appropriate ESI preservation procedures;
• Analyze and understand a client’s ESI systems and storage;
• Advise the client on available options for collection and preservation of ESI;
• Identify custodians of potentially relevant ESI;
• Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• Perform data searches;
• Collect responsive ESI in a manner that preserves the integrity of that ESI; and
• Produce responsive non-privileged ESI in a recognized and appropriate manner.

Herring Law Group recognizes the risks and responsibilities. We initially assess our cases for ESI/e-discovery issues. We send “ESI hold” letters to opposing counsel when necessary. We think about preserving ESI, whether it might be on servers, in storage, or on personal computers and portable systems.

When necessary, we also retain expert consultants. They can assess our clients’ ESI systems and assist in meeting discovery demands. They can also help us formulate offensive approaches to opponents’ systems and data. On a case-by-case basis, we consider them an important part of our team, as we do other experts like forensic accountants, mental health professionals and vocational evaluators, for instance.