Author: Greg Herring

A Call for “Disruptive Change” Toward E-Discovery Competence

Electronically stored information (“ESI”) is information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. Electronic Discovery, or e-discovery, is the use of legal means to obtain ESI in the course of litigation for evidentiary purposes. Together, they constitute new, interesting and important considerations and challenges that overlay family law as well as traditional civil litigation.

But ignorance of and reistance to dealing with ESI remains high. An experienced and well-respected judge in one of our cases recently asked in the middle of an e-discovery hearing, “what is ESI?”

A couple weeks ago in a bar association meeting of law firm managing partners, I heard one participant brag that his large firm stubbornly accepts discovery productions of ESI only through hard copy printouts. It was still lost on him that discovery of ESI in its native form can reveal metadata (hidden “data regarding data”) potentially critical to a case, can be much more efficient to transfer from computers and devices in its native format and can be reviewed by technology that is much more efficient than human eyeballs.

A 2016 survey of federal judges and and attorneys addresssed e-discovery best practices and trends. Grabbing attention was their observation that being undereducated and underprepared in e-discovery “is no longer an option.” They continued, “disruptive change is needed for lawyers to become e-discovery competent.” (The survey can be obtained through exterro.com.)

In his 2015 Year-end Report on the Federal Judiciary, Chief Justice John Roberts emphasized that new changes to the Federal Rules of Civil Procedure are in part intended to “address serious new problems associated with vast amounts of [ESI].”

Earlier last year, the California State Bar issued a formal Opinion, providing guidance relating to ESI and e-discovery. (State Bar of California’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) 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. It acknowledges that 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.

“ESI is now an accepted part of a law practice, and may be be ignored simply because counsel may be ‘highly experienced’ in other aspects of litigation. Failure to be adequately prepared to conduct e-discovery qualifies as ‘ethical incompetence.” (A. Marco Turk.) Herring Law Group handles major cases involving ESI issues and e-discovery. We are committed to staying on top of this changing legal terrain.

Spousal Support Changes under the New Federal Tax Law

The recent federal tax overhaul provides in part that, in any spousal support orders entered after December 31, 2018, the spouse paying spousal support will not be able to deduct it and the spouse receiving spousal support will not be able to claim it as income for tax purposes.  This will reverse the 75-year-old tax deduction for spousal support.

Prior law effectively subsidized increased amounts of spousal support.  Payors in higher tax brackets than recipients could pay relatively higher amounts of spousal support, take the tax deduction and thus pay meaningfully lower amounts in after-tax dollars.  Recipients in lower tax brackets would benefit from higher payments, but pay relatively low or no taxes thereon.  The Treasury has thereby subsidized a type of arbitrage, helping divorcing couples accomplish “softer financial landings” as they divide one household into two.

The Census Bureau reports that 243,000 people received spousal support last year, and that 98% of them were women.  The IRS indicates that substantially higher numbers of payors claim the existing deduction.

According to the most recent nationwide survey of the over 1,600 Fellows of the American Academy of Matrimonial Lawyers (of which I am one), the changes will make divorce a more emotionally challenging proposition.  An overwhelming 95% of responding Fellows anticipate the new tax plan will change the ways in which divorces are settled.  A clear majority of 64% believe that the cases will now become more acrimonious.

Additionally, 62% of the responding Fellows feel that the changes in the tax plan offer a greater benefit to the payee in terms of spousal support.  59% are finding that husbands are showing a greater sense of concern in regard to the repeal of the alimony deduction.

My guess is that spousal support awards in California will drop in net payments (in relation to prior tax-subsidized amounts) as the government stops the present subsidy.  Payors will likely benefit and payees will likely receive relatively less.  People divide their marriages for all sorts of reasons, but anyone anticipating a divorce that might include spousal support ought to consider the changes as 2019 approaches.

Greg Herring – AAML 2018 – Family Law Person of the Year Award

AAML Southern California Chapter’s 2018 Family Law Person of the Year Award

I am honored and humbled to have been named the Family Law Person of the Year by the Southern California Chapter of the American Academy of Matrimonial Lawyers. I was presented the award during the Chapter’s black-tie gala in San Diego during its annual Institute of Family Law Trial Advocacy over the Martin Luther King holiday weekend.

It is no secret that family law is most challenging. In 1997 the Court of Appeal pointed out in D’Elia v. D’Elia:  “In terms of the potential breadth and complexity of issues which they face, family practitioners work in one of the most, and perhaps the most, exacting and demanding areas of concentration in the law. Under California’s community property laws, every item of marital property presents a host of challenging issues. Not only must the family practitioner worry about the characterization and valuation of each asset, he or she often must consider future tax consequences involved in various items of community property. On top of that, support and custody issues involve different considerations, in which a human relationship–as distinct from a discrete event–is the subject of the litigation.”

The AAML is a hugely positive force in this difficult environment. It was founded in 1962 to “encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law, to the end that the welfare of the family and society be protected.” I am proud to have been named a Fellow in 2006.

In 2014, a prior AAML national president, Jim McClaren, emphasized:

* We Fellows of the AAML are a tough group of litigators who can hold our own with anyone in the courthouse;
* We are nonetheless polite and professional to each other, and to the court, and
* We are an organization of the very best family law litigators in the country. That means that we can each try the most complex cases that are presented to us. That also means that we know how to settle the cases.

Currently the AAML has more than 1,650 Fellows in 50 states. Our Southern California Chapter is one of the largest in number (100+), and it is by far one of the most influential.

Service is a hallmark of our Chapter. Muhammad Ali said: “Service to others is the rent you pay for your room here on Earth.” Among other things, our Chapter: (1) Presents the annual 3-day Institute; (2) Donates substantial amounts, close to $200,000 during my tenure, to non-profit family law causes and organizations; (3) Grooms promising young family law lawyers through its new mentorship program, and (4) Shapes substantive family law and policies by weighing-in on legislation and important appeals.

As an organization, our Chapter produces high-level programs with other groups including accountants, custody specialists and so on. As individuals, we Fellows generously and constantly write, present and speak to and for our community of family law professionals.

In 2014 our Chapter decided to establish our annual Trial Basics Seminar. Its purpose is to reach out to our community, improve the skills of less-experienced family law lawyers and give back to our profession. Its target is family law lawyers with limited trial experience wanting to learn basic trial skills from the AAML’s experts. I received the 2018 POY award in large part because Herring Law Group took the lead in launching the TBS, and I have served as the Seminar’s Dean since inception.

The TBS has two parts. The main event is a day-long annual seminar, packed with nearly 20 fast-paced presentations by our AAML Fellows. It is moderated by California family law guru and AAML Northern California Chapter Fellow, Garrett Dailey. We hold it at the very nice Westin South Coast Plaza Hotel. We provide a nice breakfast, a fabulous lunch and full Continuing Legal Education credits.

The TBS’ unique feature is that we then provide live “hands-on” breakout sessions in San Diego and Los Angeles a couple weeks later. All participants are expected to attend, where they practice their skills in a “mock trial” type of environment.

We teach 100 attorneys at each Seminar. By the end of this Spring’s program, our Chapter will have educated nearly 400 young family law lawyers throughout Southern California. … And our Chapter provides all this for free.

My journey with our Chapter has just begun. I appreciate the opportunity to have served in many capacities and to keep actively serving. I encourage all of our Fellows to approach the AAML in this same manner and mindset. I thank the AAML and our Chapter so much.

Herring Law Group is pleased to welcome Morgan Nix

Herring Law Group is pleased to welcome Morgan Nix as our forth attorney. Morgan comes to us after practicing family law with another Santa Barbara firm. She is experienced in handling various family law matters — from complex jurisdictional questions to hard-fought custody cases. She is a regular in the Santa Barbara County courtrooms.

Morgan graduated from law school at the top of her class. In 2014, during her last year of law school, she interned for Santa Barbara Superior Court Judge Brian Hill.

Originally from the Columbus, Ohio area, Morgan came to Santa Barbara in 2009 to join the writing staff at the Santa Barbara News-Press. There, she worked as a reporter for two years before being encouraged to enter law school. Her journalistic skills are a huge asset to HLG.

Outside of the office, Morgan’s interests include following current events, enjoying wine tasting and supporting her favorite sports teams. She is a life-long soccer player. She and her husband (whom she met at a pick-up game) enjoy playing on recreational teams.

With added horsepower from Morgan, HLG is poised to even more efficiently and effectively serve our family law clients.