“I know how you feel, Carol. It’s very confusing when grown-ups do things that aren’t fair.”

Friends:

 

How well do you know your spouse or significant other?  Have they been married before?  Are they still married and you don’t even know it?  Does the State of California allow this type of deception?

No, this isn’t the beginning of a treatment for a screenplay I am selling around town.  This is real and when I tell this story to friends and family, they simply don’t believe me when I tell them the truth:  your wife could be married to someone else and not only might you never know, even if you wanted to find out, you likely wouldn’t be able to.

It’s called a “confidential marriage” and is exactly what it sounds like.  It is a marriage that the state will keep confidential, so that a search of public records would not result in its discovery.  What possible good can come of this, you might ask?

Well, it appears that the idea of a confidential marriage came from a good place of protection; to protect children born from long-term, though unmarried, couples from the stigma of being “out-of-wedlock” children.  It also was designed to address the issue of common law marriage, which is non-existent in California.  According to the California Family Code, when an unmarried woman and man, not minors, have been living together as husband and wife, they can have their marriage solemnized and a marriage performed, with the marriage license recorded though kept confidential by the county recorder.  Thus, if the world at large already believes that you are married, you can have the service performed and no one needs to know when the marriage actually took place… because the marriage license is only obtainable by either of the parties to the marriage or pursuant to a court order.

What could possibly go wrong?

Well, for one thing, if you wanted to do some background on your soon-to-be husband, you would never know if he was already married.  And we all know that bigamy is against the law.  So if your husband was already married, guess what?  Your marriage is against the law!

It sounds like it would never happen right?  Couldn’t be possible… and you would, unfortunately be wrong.

Consider these facts:

A man marries a woman by a confidential marriage, then a mere two months later, marries another woman in a public marriage, what we would think of as more traditional.  Even though husband lives with wife number two, his marriage to wife number one is never dissolved, nullified, or legally terminated and so, when husband dies, both women lay claim to his assets.  And who wins?

Interestingly enough, the answer is, in most circumstances, both of them.  You see, wife number two cannot prove that the confidential marriage was dissolved or annulled or legally terminated in any way, so her marriage is determined to be a bigamous marriage and thus illegal and invalid. 

However, don’t feel too bad for wife number two—the law does provide for her to be deemed a “putative spouse” meaning that if she can show that she had a good faith belief in the validity of her marriage, she won’t go away empty handed.

Look, it’s one thing for spouses to have affairs and engage in other extra-curricular activities while married; but what if those were not with a girlfriend or boyfriend, but another husband or wife?  You would never know about it and, more astonishingly, you would never be able to find out about it for yourself because the vast majority of case law on the subject addresses situations in which the discovery of the second marriage occurs after the death of the bigamous spouse.  Yep, when the spouse dies, that’s when the “other” spouse comes of the woodwork and lays claim to assets.

And the state of California allows this to happen.  The confidential marriage is just as legal and valid and provides the same rights to the spouses as a fully public marriage. 

Would you believe I have two cases going on right now involving confidential marriages??  Crap, maybe it is more popular than I thought.  Perhaps I need to depose my wife…

In the practice of law, you find all kinds of weird laws—I call them “hiccups” as in when the law was being written someone hiccupped and forgot what they really intended…

It certainly is amazing, don’t you think?

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“This is an institution of learning, ladies and gentlemen. If you can’t control it, how can you teach?”

Dress codes in school is a hot button topic these days.  No, not for the students, for the teachers!

A few schools around the country are cracking down on how their teachers are dressing for class.  The days of jeans, flip-flops, gym clothes (for the non-gym teachers I expect) and sneakers on teachers may be ending, and if you ask me, it can’t come any too soon.

There are some people in this world who are worthy, just by virtue of their profession and their level of authority, of our respect and appreciation.  They are law enforcement personnel including emergency service providers, judges, military servicemen and women and teachers.  But that respect is not infinite; it needs to be maintained and continuously earned on a daily basis.  A police officer automatically commands our reverence, but that same police officer arrested for abusing his wife has lost that respect.  Teachers are the same.

I have always held the belief that if you want people to treat you with dignity and respect and, more importantly, take you seriously, you must dress the part.  We are a shallow and superficial society and first impressions may be all that we get, so it has to be a good one.  Want people to listen to you, give you a job, or just treat you politely, your appearance controls a great deal of that. 

Teachers are no exception.  If they want to be taken seriously, if they want to continue to maintain that respect, if they want to be a good role model for their students, they must dress the part.  What message are they sending to the students if they come to class in flip-flops and gym shorts?  If they don’t take their job seriously enough to get dressed up for it, then why should the students take school seriously?

Did you know that there is a dress code for lawyers appearing in court in Los Angeles County?  Los Angeles Superior Court Local Rule 3.43 states the following:  “Persons in the courtroom may not dress in an inappropriate manner so as to be distracting of usual sensibilities.  Attorneys and court personnel should be dressed with current customs as to their business or work attire.” 

Why is this the case?  Because judges and the judicial system demand respect and the easiest method of showing such respect is to dress appropriately.  Teachers who do not dress appropriately for class are not showing respect for themselves; they are not demonstrating to their students that they are entitled to and command respect by virtue of their profession.

Think of it this way—you are in charge of hiring the new employee for a position which will require public appearances and promotional events for your company.  Two applicants apply.  One appears for the interview in a suit and tie while the other appears in jeans and sneakers.  Without having looked at either one’s resume, which one do you think took the interview seriously?  With no other criteria on which to base your decision, which one of the two would you hire to represent your company?  If you wouldn’t hire the applicant in jeans and sneakers to represent your company, would you be comfortable having him or her educate your children? 

I accept the fact that my argument does not take into consideration the qualities of the teacher.  For every burned out teacher with no incentive to work hard but who wears a suit to class there is a teacher who busts his or her hump every day to be an educator but who wears jeans and sneakers and wouldn’t we as parents want the excited and dedicated teacher educating our children?  Hands down, no question, of course.  But is it that difficult to expect that teacher to dress it up a little bit?

In Milwaukee, a retired high school teacher of 33 years wrote a scathing letter to the editor, criticizing a teacher’s dress code as style over substance with too much emphasis being placed on what someone wears as opposed to the skills that one has.  Her major argument, however, was flimsy at best.  She queried where the teachers were supposed to get the money for the new clothes.  She snidely suggested Goodwill.  Really? 

You may think that I am wrong and I very well may be.  I would much prefer the teacher who is energized and sloppily dressed to the one that is spiffy but enervated.  But this is not a situation where changing the dress code will change the product.  Requiring teachers to dress appropriately for class will not be tantamount to cutting Samson’s hair.  They will not suffer a power outage and thus be unable to teach anymore. 

Remember I spoke of those commanding our respect simply by virtue of being in positions of authority?  Who are the first people in authority that our children interact with?  The teachers…

I go to court many times a month and it never ceases to amaze me how inappropriately attired some of the non-lawyer attendees are.  Shorts, baseball caps, flip-flops, baggy jeans, t-shirts, unkempt hair, unshaven faces.  I see it every time and this is when they are appearing in front of a judge who will be making a life-altering decision about them!  Where is the respect?

Teachers are our children’s first exposure to authority.  Do they want their students to respect them?  Then they need to dress like the respect that they command.

Even Mr. Belding wore a suit every day!

“Am I a Muppet, or am I a man? If I’m a man, I’m a Muppet of a man.”

I apologize for this week’s email.  I am in trial preparation mode and the only thing on my mind are confidential marriages and interpleader actions.  So, unfortunately, no new content this week.  Instead, I wanted to re-post what I think is probably my favorite of all my past posts, and there have been 124 of them or so.  You probably have your favrite (hopefully?) so here is mine.  Have some fun with it.

A funny thing happened on my way to the blog this week.  I had it all planned out and then, a hard right turn, comes out of nowhere and it becomes the new obsession.  It is a curse sometimes to be an attorney.  Not only are people always picking your brain for legal insight and advice, but we as attorneys view every situation as a potential law school examination question.

If you are unfamiliar, law school exams are frequently comprised of lengthy fact-patterns from which the student is to identify the potential legal issues contained therein.  For example, a fact pattern concerning a character who enters into a contract and doesn’t perform, the student is expected to identify the potential claim for breach of contract, defenses that may exist, elements of the cause of action in order to state a claim, things of that nature.

Whereas everywhere a scientist looks she may find molecular activity, everywhere an attorney looks, he may find a cause of action.  We are trained to take our client’s stories and experiences and identify the traps, look for the pitfalls, and (if the client comes early enough in the process) ensure against potential disaster.

So when I watch television, for example, I spot the issues; sometimes without even knowing that the legal part of my brain is at work.  Thus, imagine my surprise when I identified many potential issues while watching that most wholesome of programs, a muppet movie.  The Muppets Take Manhattan, to be exact.

In all fairness, I am more critical and suspicious of children’s programming because of the lessons that are being learned by our children.  As the father of a 5 year old and 6 month old, I am very careful about what information is disseminated to them.  So when I watched the muppet movie, I was shocked and appalled by what I saw.  And it is because of that, that The Muppets Take Manhattan has been banned from my house.

What was the egregious error being taught to our children?  Well, it was one of improper employment practices. 

If you are unfamiliar with the movie, there is a scene at the end of the movie when the muppets are backstage getting ready to open their show on Broadway.  As they are heading to the stage, Kermit is asked if all of the dogs and pigs and chickens and whatevers can watch the show from backstage.  All of the friends that the characters had met up with during the movie have shown up and want to watch the show.  Instead of letting the dogs and pigs and chickens and whatevers watch the show from backstage, he tells them they are to be in the show.

First things first– I am not going to criticize the movie as being unrealistic but there is no way that any of the dogs and giraffes and birds and possums could possibly know any of the songs, the staging, the dance moves, or the lines from the script.  Kermit, you are opening on Broadway!  Do you really want to send animals that have no acting experience at all onto the stage to effectively carry the main opening number?  Umm, hello– how could any of the costumes fit?

No, the part that was ultra-distressing to me was the flippant method by which Kermit just gave all of these animals jobs.  I bet the show’s insurance broker, if you will pardon the vernacular, “shit a brick.” 

So let’s issue spot, shall we?  My issue spotting is, actually, not only from the standpoint of the lawyer, but also from the perspective of a business owner.

A) The human resources director did not have time to interview all of the new employees to determine if they were qualified for the job.  Did any of them have any experience on a stage?  Summer stock, maybe some commercials, or a pilot?

B) Did the employees complete the necessary new hire packet?  I assume they filled out a W-4 and an I-9, right?  How much withholding did Bear #3 request?  And if you will recall, the animals were introduced in various places of the country.  Is it possible that one or two or more of the new hires were born in a different country?  It is probably pretty easy for a frog to leap from lillipad to lillipad, crossing Lake Michigan from Canada.  I bet the border control agents aren’t covering that method of immigration.

C) Were the new employees given the employee handbook?  Did they understand that they were being hired for 8 shows a week, one show a day Tuesday-Friday and two on Saturday and Sunday each, with Monday off? 

D) Umm, anyone care at all about the unions?  The theater looked to be fairly large, so doesn’t that require that only Actors Equity members be hired?  Did they make sure to comply with the union’s rules regarding hiring and compensation and benefits and contributions and all of the other guidelines regarding employment?

E) Did Kermit check with the producer ahead of time to make sure that there was room in the budget to pay everyone?  He might be in breach of his contract with the producers, unauthorized hirings and firings without producer’s approval.

The list could go on and on. 

But let’s fast forward the story.  Fast forward to the day after opening night.  Everyone is hung-over from a long night of partying and celebrating.  Kermit and Miss Piggy and the gang were at Sardi’s all night, living it up.  Rowlf the Dog commandeered the piano while Fozzie Bear grabbed the mic and regaled the crowd with jokes.

As the cast rolls over to the theater for the next evening’s performance, they are met with a picket line.  The union is protesting the hiring of non-union workers.  The crowd for the show, unwilling to cross the picket line, demands a refund of their money for the tickets.  Chicken #2, who had called her agent that morning to brag about her new gig, informs Kermit that she will hold out because she wants to renegotiate her contract.  It seems that she wants her own dressing room and doesn’t want to have to share the stage with the bears for fear that she may be the bears’ next dinner.  She also has requested that her dressing room be stocked with M&M’s, but only the green ones.  The pig has filed a lawsuit for unfair hiring practices because he feels that he should have had a chance to audition for the role of Dog #5 but was discriminated against because he is a pig.

With all of the strife now looming for the show, the producer has decided to pull the plug.  It seems that since Kermit did not obtain employment practices liability insurance, there is concern that many of the new employees will bring wage and hour claims as well as unfair hiring practices.  The producer does not want the liability and has decided to close the show down. 

 What started out with so much promise… Kermit thought he was doing a solid for his friends by giving them jobs and having them in the show, but at the end of the day, it was like trying to catch a fly caught in fly-paper.  Kermit got stuck and he can’t get away.

Sorry my friends, the curse of being an attorney.  But you can well understand why I The Muppets Take Manhattan is out of the house.  Brooklyn and Kensi want to watch a movie, it will be on which teaches important lessons, like Scarface.

“I know, I know. We are Your chosen people. But, once in a while, can’t You choose someone else?”

 

It is customary on Shabbat, the Jewish Sabbath, that parents bestow upon their sons the customary blessing that they grow up to be like Ephraim and Manasseh, despite the fact that Abraham, Isaac, Jacob, and Moses are the more noteworthy and memorable players in the history of the Jewish people.  And the rabbis have some interesting explanations for this, why such an important blessing on the holy day of Shabbat should be reflective of two of the lesser known members of the story of the Jews. 

First, a primer on Ephraim and Manasseh.  As we know, Joseph (he of the Technicolor dream coat) was one of the 12 sons of Jacob, sold to traders heading to Egypt.  After spending some time in prison in Egypt, Joseph eventually made a name for himself as the official dream interpreter for Pharaoh and, upon learning of his success, Jacob and the rest of his brothers moved to Egypt.  By that time, Joseph had already had two sons, Ephraim and Manasseh.  The tradition at that time was to bestow certain blessings on the male children of the family and Joseph brought Ephraim and Manasseh to be blessed by their grandfather, whose blessing was that Israel would bless their sons that G-d would make them as if they were Ephraim and Manasseh. 

So what was so special about Ephraim and Manasseh that generation after generation has bestowed this particular blessing related to them?  The rabbis, as you can well expect, have different explanations.

One of them is that Ephraim and Manasseh were born in Egypt in a highly secularized society.  The belief in one god was not commonly held, and it was very easy to lose beliefs and ascribe to the Egyptian theory of worship.  But Ephraim and Manasseh, despite living in such conditions, maintained their beliefs as passed down from Abraham to Isaac to Jacob to Joseph.  Thus the hope and desire that in the face of adversity or challenge, the sons of the Jewish people would not lose their faith, but would be as Ephraim and Manasseh.

But I like this interpretation better. 

The Bible is fraught with narratives of brothers who simply don’t get along.  Consider the relationship between Cain and Abel.  Or how about Isaac and Ishmael, or Jacob and Esau or even Joseph and his other brothers.

(Remember a while back we discussed how simple estate planning could have saved thousands of years of war?  http://robcohen13.com/2011/09/26/dov-youre-always-fighting-and-youre-always-in-a-place-where-you-might-get-killed/)

But Ephraim and Manasseh?  The rabbis tell us that these two brothers did not fight; there was no strife between them.  So to be as Ephraim and Manasseh is to maintain a relationship with your brother which is free from discord.

It’s funny actually.  I had never heard the story of Ephraim and Manasseh before or the derivation of the Shabbat blessing until this past Friday night.  In using the example of the warring brothers throughout Jewish history, our rabbi asked of the congregation if they knew the two brothers in Jewish history who did not fight.  Being the typical smart-aleck that I am, I murmured that it was the Cohens, namely my brother and I.  While amusing (perhaps only to myself), it certainly was disheartening, when I thought more about it, that strife amongst families is not unusual.  Just because people share the same blood and even the same upbringing, harmony is not guaranteed.

Can you see where I am going with this?  I have told you before, being an attorney can sometimes be a curse.  It is something about the training in law school, but attorneys think differently.  They issue spot, they are always assessing risk, and they are always taking simple and straight-forward concepts and making them difficult.  Which is why the discussion of the blessing of Ephraim and Manasseh struck a chord with me.  For if all of our sons and, let’s not be sexist, daughters were to be as Ephraim and Manasseh, then I would be out of a job.  Family strife, while discouraging and unfortunate, pays my bills…

But I would certainly trade it all away for harmony.  To me there is nothing more heart-breaking than a family in turmoil resulting from interpersonal relationships. 

“Jean Louise. Jean Louise, stand up. Your father’s passing.”

 

I am constantly amazed and impressed by the accomplishments of professional athletes; the people on the field who, under seemingly limitless pressure, are able to perform.  The home run in Game 7 of the World Series, the touchdown pass with no time remaining on the clock, the Perfect 10 in the Olympics.  These people are mortal, they live and breathe just like any of us, but somehow they manage to perform when the spotlight is on them.

As an attorney, it is unlikely that I will ever find myself in a situation quite like any of those.  Sure, I will argue numerous cases, cross-examine hundreds of witnesses, and negotiate hundred-page agreements, but performing on the largest of stages likely will not happen for me.  But a guy can fantasize about that, right? 

For example, what would it have been like to represent high school science teacher John Scopes in the Scopes Monkey Trial, defend Leopold and Loeb, prosecute the Nazi War criminals at Nuremburg, or take the place of Atticus Finch and defend Tom Robinson for rape?  The tension palpable, the pressure like the weight of the world, the media scrutiny oppressive, the stakes life-altering. 

Which got me to thinking:  are there any cases that I would have wanted to take on?  If the client had walked into my office and asked me to represent them, would I have accepted the challenge?  We all would like to think that we could defend the honest man/woman, but personally, that isn’t me.  I wouldn’t take on that matter.  In fantasyland, sure, I would do it, but Dred Scott is not walking into my office and asking me to represent him in his case against his master.  So the criminal matters, the particularly nasty stuff, the Constitutional challenges… I likely wouldn’t take them on.  I didn’t say never, just likely that I wouldn’t.

Yet based on my current practice and recent experiences with particular cases, there is a case I would take, if the young lady were to walk into my office.  The case hasn’t been brought yet, but if it walked into my office, I would snatch it up and I believe it would receive quite a bit of media attention.

The young lady in question has a remarkable story, one of love and loss and despair.  When her mother died, it left just her and her father.  She was the apple of Daddy’s eye and the two of them were inseparable; until Daddy remarried a shrew of a woman who had two daughters of her own.  The new blended family was anything but idyllic, and it only got worse when Daddy died, leaving my new client an orphan.

You see, Daddy owned a nice property and had plenty of money, but his estate plan left a lot to be desired.  He left everything in trust for his daughter; however he made his second wife the trustee of the trust with full discretion over its affairs, thinking that his second wife would treat his own daughter the same as she treated her own.  Instead, though, she ran rampant with the trust’s assets, using the family home (more of a castle really) as if it was her own, doting on her two daughters with lavish gifts, clothes, and music lessons (even though they had no musical abilities at all), all the while making my client’s life a living hell.  Not only did she not receive the benefits of the trust, she was forced to earn her keep around the house.  Instead of growing up with the benefits of financial security afforded by the trust, she became a glorified housekeeper, responsible for the house’s maintenance and attending to the needs of the stepmother and her two daughters.  Cooking, cleaning, and scrubbing the floors were part of her everyday life.  Wearing fancy clothes and attending extravagant parties were not part of her existence.  Oh, what her life would have been had the stepmother complied with her duties as trustee!  But no one was there to look over her shoulder and ensure that she was not breaching any of her fiduciary duties.

Until I come along, that is.  This case would be perfect for me.  It has everything; an estate plan that isn’t being performed, a trustee who is running rampant and shirking her responsibilities, two step-sisters who are receiving assets of the trust improperly…

Imagine the possibilities!  A petition requesting that the court order the stepmother to provide an accounting of the trust’s activities; that she be removed as trustee and someone else appointed; that she be personally surcharged for her constant breaches of the fiduciary duty she owed to my client; that the step-sisters be ordered to return all of the assets they improperly received from the trust; and maybe even request that the court terminate the trust and distribute all of the assets to my client immediately.  We might even have to bring a civil action to remove the stepmother and her daughters from the home.

Ahh, if only she had walked into my door.  While hindsight is 20/20, perhaps the client did better by not walking into my office.  Her fairy godmother sure did a better, and more expedient, job of rescuing her from her troubles… who can compete with that whole glass-slipper thing anyways?

But not everyone has a fairy godmother.  And these types of matters are happening constantly.  They just aren’t receiving the same media attention…