Author: Greg Herring

The “Ticking Timebomb” of International Surrogacy

The International Academy of Matrimonial Lawyers, of which I am a Fellow, is a worldwide organization of 700 practicing lawyers who are selected by our peers and focused on international family law matters. It was formed in 1986 to improve the practice of law and administration of justice in the area of divorce and family law throughout the world. It has recently addressed issues including forced marriages, artificial reproduction technology, international adoptions and child abductions.

Earlier this month it completed a Surrogacy Symposium in London, with professionals from 30 different countries attending.

Surrogacy is banned in most of the U.S. and many other parts of the world. The tight supply leads to high costs – prices in the U.S. begin around $60,000. For about half that, a surrogacy can be arranged in India, for instance, where business is booming. The financial impulse to go abroad can be strong.

But international surrogacy is hardly regulated. In many countries outside the U.S., the surrogate remains the legal parent if no order is obtained. Medical quality controls are often lacking. If something goes wrong with the fetus, the intended parents may disagree with the surrogate over abortion.

As the Atlantic recently put it, “[i]t’s a murky, ethically-charged arena with no central governing body holding a flashlight for those on the journey.” Many “intended parents” do not realize this, or that the resulting legal fees can outstrip the original savings of going abroad.

At the Symposium, the keynote speaker, Justice Theis of England, warned of a “ticking timebomb” with large numbers of parents failing to obtain legal permission to take care of their new children.

The IAML is thus focused on creating a multilateral (Hague Convention) treaty on international surrogacy arangements. We will follow and report the developments.

A Misguided Attempt to Remedy “Mediation Fraud

The Bar Association of San Francisco to the Conference of California Bar Associations has proposed a controversial change to the Mediation Confidentiality rule, Evidence Code section 1120. For family law actions only, it would create an exception to mediation confidentiality for communications in mediation between spouses or registered domestic partners that constitute a fraudulent breach of fiduciary duty. This is a proposed resolution to the State Bar’s Conference of Delegates, which is a considerable distance from being an actual bill before the Legislature. We nonetheless take it seriously.

Mediation confidentiality is regarded as sacrosanct. Especially since the Legislature beefed up Family Code section 721 in 2003, fiduciary duties are, too. The rule change concerns their intersection, where a party in a family law mediation might suffer an unfair settlement as a result of the other party’s non-disclosure of finances or other fraud. The proposal begs the question of where to draw the line, might the aggrieved party claim “fraud” and want to open otherwise-confidential mediation communications to scrutiny.

The proposal reflects an unfortunate impulse of some towards making family law “special” and outside the normal rules applicable to other legal disciplines. This is a slippery slope; family law needs to remain in the mainstream. In 2007’s Elkins v. Superior Court ((2007) 41 Cal. 4th 1337), the Supreme Court prohibited the lower courts from allowing family law to fall into an administrative style of practice. It insisted that family law cases and lawyers be treated the same as any others in the courthouse.

Mediation fraud can happen, but remedies exist. At any rate, “fixing” the problem in the proposed manner is not worth the risk of undermining family law’s hard-won status as an equal partner in the courts.

Marriage of Winternitz Reminds that Experts Require Handling and Oversight

The California Court of Appeal recently published Marriage of Winternitz. The holding was that a court-appointed expert custody evaluator’s (1) failure to adhere to all the requirements of the California Rules of Court and (2) admission that he made significant errors does not require a trial court to automatically remove him or to exclude his written report. Rather, trial courts are allowed discretion to consider those failures in potentially giving an expert’s reports and testimony less weight in the overall balance of evidence.

At one level, the case provides commonsense guidance for trial courts who can still benefit to one extent or another from an expert’s insights, even if his process might have been flawed.

At another, it reminds us that experts are human. The Winternitz expert, who is otherwise nationally well-reputed, admitted to personnel difficulties in his practice, a loss of phone records, other “problems galore” in his office and “a variety of errors” in his records.

Trial attorneys often need experts. Some are court-appointed under Evidence Code section 730. Others are hired as private consultants or witnesses for hearings and trials. They provide anlaysis, insights and opinions beyond the abilities of lay witnesses.

But they require affirmative handling. Attorneys, charged with managing their client’s cases, are ultimately responsible for some oversight of their experts’ methodologies and procedures. We too often see counsel close their eyes in essentially delegating their cases to experts. In a court hearing just the other day, I heard opposing counsel explain to our judge that he was merely forwarding his accounting expert’s (flawed) legal arguments, as opposed to his own.

Winternitz reminds us that experts are human. “Between the lines,” it also cautions attorneys to monitor their experts and refrain from subcontracting their professional duties.

Trial Basics Seminar Success!

Our Southern California Chapter of the AAML presented the first annual Trial Basics Seminar on April 10, 2015 in Orange County.  The TBS is aimed at less experienced family law lawyers.  We designed it to (1) Reach out to potential future Fellows, (2) Help educate family law attorneys and (3) Give back to the courts and our family law community.  100 lawyers attended, with nearly that many still on the waiting list.

I was proud to serve as the event’s Dean.  Herring Law Group put in hundreds of hours of work, coordinating speakers, materials, hotel logistics and all communications.  It helped our new firm bond, and we are proud to have “made it happen.”  Ruston and Erin also attended.

My presentations included “Expert Witnesses,” “Protecting the Record/Statements of Decision” and “Post-hearing and Trial Motions.”  Activity evaluations were outstanding, with across-the-board “5 for 5” top ratings.  Comments included, “the practical tips taught were incredible,” “I learned more [about expert witnesses] in 15 minutes than I have in 10 years,” and “the content will be very useful to my own practice in terms of practical tools and approaches.”

Follow-up “break-out” sessions will be held this weekend at various law schools.  HLG looks forward to helping to grow and improve the TBS in years to come.