Posted By TheAttorney on December 13, 2009
I think I unintentionally irritated a judge at a hearing the other day.
A client retained me to help him establish a guardianship over a minor. We went to a hearing about a month ago and the commissioner at that hearing said we needed to use “due diligence” to try to locate the paternal and maternal grandparents of the minor in order to give them notice of the hearing. If we couldn’t locate the grandparents, then we would have to file a Declaration of Due Diligence stating the (unsuccessful) steps we took to try to find them.
In a guardianship matter, you must give notice to relatives to the second degree up, which would be the parents and grandparents. It’s a sad kind of case, really. I think you also have to give notice to siblings, but I haven’t had a case where siblings were involved. In this case, the child’s parents are both in prison. We were able to give the parents notice, but we haven’t been able to locate the grandparents on either side (although we did find a great-grandparent, but that doesn’t count).
I went to court last week to file the Declaration re: Due Diligence, but the line was so long that I decided to leave. I decided it would be more time-effective to have them filed by an attorney service.
And then I forgot about them.
The reason that this becomes important is because in probate court, you have to file supplemental documents at least 5 days before the hearing so that the court can review the documents in advance of the hearing to determine if all the steps are being followed. The commissioners and judges and probate attorneys that work in the probate department are extremely careful, I have learned. You absolutely must dot all your I’s and cross all your T’s.
When the judge called my case, I explained that I made a mistake in not filing my declaration of due diligence and very politely asked if the court could possibly put us on second call in order to allow the court time to review the untimely declaration and possibly see if we were in compliance so that we wouldn’t have to have the matter continued.
The court agreed to review the documents and put me on “second call” (which means that the judge will finish calling all the cases on calendar and then call my case again). I felt really good about this.
Another attorney had once told me that if there was ever a time that I didn’t submit something at least 5 days before a hearing, to just ask the court if it would review the document anyways. So I went and had a cup of coffee, I filed a document in another case with the family law clerk, and then I went back to the probate court to get the good news.
When the judge called my case again (two hours later), he said he was going to require me to use more “due diligence” in locating the grandparents on both sides because my declaration was untimely.
“What exactly does the court want me to do that I didn’t do in my Declaration?” I asked.
I don’t think the judge liked the way I asked the question because suddenly the judge seemed like he was mad at me.
“You were untimely in filing your paperwork. You came into court on the day of the hearing, expecting us to read your declaration, when it should have been filed at least 5 days before this hearing,” the judge said. This wasn’t going the way I thought it was going to go. Maybe the other attorney was wrong about how he had told me it would go.
I tried to rephrase my question.
“I don’t mean to irritate the court, and I understand that my documents should have been filed a week ago. I just want to know for sure what I should do because I feel like we took the steps we should have taken to locate the grandparents.” Didn’t I already tell the court that I didn’t file the declaration timely? Didn’t I already apologize? Why was the judge chastising me in front of my client?
Also, the grandparents have really common surnames. I won’t give the real names, but imagine if it were “Rodriguez” or “Brown.” Those are really common last names. I just wanted to get a head’s up on what the court wanted me to do other than what I had already done.
The judge sort of repeated himself. I think he thought I was being belligerent. I wasn’t trying to be. I don’t think I was asking the right questions, or maybe I sounded annoyed, which I wasn’t.
Sometimes I think, when I feel like I have annoyed a judge, which I don’t think I do too often, that I should explain that I have Asperger’s and that I say what I think. I don’t word things properly. But then I would have to explain Asperger’s. (It took my husband some time to get used to the way I say things.)
And this is actually why I get along so well practicing law. In regular life, if I say what I am thinking to people, it somehow comes out all wrong. I don’t mean to come off strong, harsh, or abrupt, but I frequently sound that way.
In law, saying what you think is actually a good idea, unless I think someone is an asshole, and then that could only get me into trouble.
But the facts are the facts, and in law, it’s usually a good idea to state what you think about the facts, even if it might upset someone. Such as, “You can’t take all the money out of the bank account, even if you think it’s yours. It’s community property money because it was earned during the marriage.”
If you were just a friend, and the friend said he or she was going to take all the money out of the bank account because he or she is going through a divorce, you might not say anything about it at all because they might get mad at you.
In the practice of law, you can say things like that because you are the attorney.
But when you talk to a judge, you can’t just say what you think because you can possibly sound like you are being pissy, which is not what I was trying to sound like. The judge probably thought I was irritated, which I wasn’t.
See, I wasn’t sure if he actually read the declaration about what steps I took and wanted me to take further steps, or if he was rejecting my declaration as being untimely and therefore hadn’t reached the issue of whether we had used due diligence.
So I was trying to ask him if I needed to take further steps or was I just supposed to re-file the Declaration. Outside the court, I asked my client if he thought I irritated the judge and my client said, “Well, for a minute there you sounded like you were challenging him.”
That is not what I was trying to do, but I know that’s how it was interpreted. (What’s interesting is that although the judge didn’t clarify further, I ended up doing further research on one of the grandparents and in fact located him.)
Sorry, your Honor.
Category: Legal Stories, Miscellaneous |
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Tags: ADHD, Asperger's