||I have a dispute with my partner in a
business or real estate venture. Are there alternatives to court trials for
a business or real estate dispute?
Yes, mediation and arbitration may be alternatives
to lengthy court trials for a major business or real estate dispute.
Indeed, your dispute may be governed by a written agreement containing a
provision requiring arbitration or mediation, so review any relevant
contracts as soon as you find yourself in the middle of such a dispute.
Since mediators and arbitrators typically are either lawyers or former
judges, you should hire the best lawyer you can afford to represent you.
Most likely the other side will have a lawyer, and you should not try to
represent yourself in that situation. Hire a lawyer at the start of the
dispute, so you get the full benefit of his or her experience in trying to
resolve your problem.
I own a business. I have no kids from my marriage. Can
I do my own divorce?
That depends on whether your spouse has been an
equal partner in the business. If both spouses understand the business and
are truly equals in operating the business, then both can appraise the
value of the business and arrive at a settlement regarding the value of
the business and how to divide it. But divorce cases involving a business
can be very contentious, especially where one spouse has been kept in the
dark about the other spouse's business over many years. In that case, it
helps if both spouses have an experienced family-law attorney to
represent each of them. That way, the process of getting financial
information about the business and then appraising and valuing the
business is open to both sides. An open process of valuing the business is
more likely to result in a fair and reasonable division of the business
asset, and it will be less likely to require an expensive trial to value
I had a long marriage which ended in divorce. The spousal support awarded
in my divorce judgment is too high (or too low). What can I do?
You should see a lawyer about reducing (or raising) the amount of
spousal support. The court is under a duty to consider and weigh each of
the issues mentioned in Family Code section 4320 that apply to a
particular case in determining whether to modify a spousal support
provision contained in a divorce judgment. Section 4320 requires the court
to consider "the extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the
marriage . . . ." The provision focuses upon the marketable skills of the
supported party, the market for those skills, the possible need for
retraining of the supported party, and the extent of any impairment in
ability of the supported party to obtain marketable skills due to periods
of unemployment during the marriage to permit the supported party to
devote time to domestic duties.
The court also must consider "the extent to which the supported party
contributed to the attainment of an education, training, a career
position, or a license by the supporting party" and the "ability to pay of
the supporting party, taking into account the supporting party's earning
capacity, earned and unearned income, assets, and standard of living."
Another area for the court to consider is the "needs of each party based
on the standard of living established during the marriage" and the
"obligations and assets, including the separate property, of each party."
Naturally, the court must take into account the "duration of the marriage"
and the "ability of the supported party to engage in gainful employment"
without interfering with his or her duties to any minor children of the
marriage, as well as the "age and health of the parties." The court must
consider the "immediate and specific tax consequences to each party."
Spousal support is taxable in the United States to the payee and
deductible to the payor. Last, and often most importantly, subparagraph
(k) of Family Code section 4320 requires the court to consider the "goal
that the supported party be self-supporting within a reasonable time."
Can I handle my own auto accident case?
If you have auto insurance and you are involved in
an accident that someone claims is your fault, then you should immediately
report the claim to your insurance company. Your insurance company is
required to provide a lawyer to represent you if the claim involves a risk
that is covered under your insurance policy.
If you are involved in an auto accident that is the
other party's fault, and you are injured in the accident, then you can
make a claim against the other driver's insurance policy. You can handle
this yourself if the injuries are minor and if the insurance company
adjuster is willing to negotiate reasonably with you. In many cases, and
especially when you are seriously injured, you should hire a lawyer to
handle the claim for you. Usually, the lawyer will charge a percentage fee
based on the amount actually recovered from the other party's insurance
company - this is called a "contingency- fee". You can negotiate with the
lawyer about the amount of the percentage fee, especially if the claim is
likely to be settled without having to go all the way through trial to
obtain a recovery. But insurance companies are very skeptical of big
damage claims for minor injuries from slow-speed impacts. If the claim is
seriously contested by the insurance company, the lawyer will likely
charge a percentage of 40% to take the case to trial.
Crashes resulting in major injuries, such as head or
spinal injuries or injuries to internal organs or permanent injuries to
joints, should always be handled by an experienced lawyer. Ask if the
lawyer has experience handling injury cases similar to yours. Ask about
the lawyer's background, such as where the lawyer went to law school, how
long the lawyer has been actively practicing in California, whether the
lawyer has taken special medical-legal courses, and whether the lawyer has
trial experience. Ask if the lawyer will advance the costs of preparing
My current lawyer doesn't seem to be doing a good job
on my case. Help!
First, try talking with your lawyer. Many times the
lawyer is doing good work on the case but the lawyer is too busy to
explain just what is going on in the case. Set an appointment and prepare
specific questions to ask the lawyer about the progress of your case. Most
lawyers are willing to take time to explain what is happening.
If after talking to your current lawyer you still
don't have confidence in how he or she is handling your case, then make an
appointment with another lawyer to talk about your case. Then you can
decide if the situation requires that you change lawyers. This can be a
drastic step, so only change lawyers after carefully reviewing your
options. But in some cases it may be necessary to change lawyers if you
are to avoid a disastrous result. It is your right to change lawyers if
you feel you have to do so. Your lawyer should not object and he or she is
obligated to cooperate with you and your new lawyer if you decide to
change lawyers. The client's interests always come first.
My lawyer was unprepared and I lost my case. What can
First, talk in person with your lawyer about what
happened in your case and the reasons why he or she thinks you lost. Also
ask about your options, such as post-trial motions and/or an appeal. Make
sure you understand any time deadlines, such as when the time expires for
bringing an appeal or post-trial motion. Then, after talking to your
current lawyer, you can make an appointment with another lawyer to talk
about your case. Time is short, so do so promptly! When you talk with a
new lawyer, be sure to discuss your alternatives as well as what the first
lawyer may have done wrong to cause you to lose your case. Don't just
focus on what the lawyer may have done wrong. You may have a valid appeal
or a motion for reconsideration or motion to vacate the judgment. But
again these alternatives are time-urgent, so discuss them with a lawyer
immediately upon receiving any bad news on your case.