By Tim Rohr
So my fires were stoked this morning when I read about a case from an attorney I follow wherein negligence by both the judge and the attorney cost a mother her daughter.
I follow this attorney because she normally has good advice, some of which I have used in the past. However, given how she handled this case, her client, the mother, should have sued the attorney for malpractice.
You may be wondering why an attorney who failed so miserably would broadcast such an obvious failure on her part. I'll tell you why at the end of this.
The short version of the story is that the judge in the case, a custody case, made a big mistake. The hearing was for final orders. However, at the end of the hearing the judge began issuing temporary orders from the bench. The attorney knew this was incorrect and reminded the judge that the hearing was for final orders. The judge, apparently caught by surprise, said "okay, then these are final orders."
However, while temporary orders do not require all the legal i's and t's to be dotted and crossed, final orders do, and the judge - per the attorney's account - did not have the legal substance required to make a final order, and in this case, "from the bench."
The problem was that the attorney representing the mother did nothing and let the judge proceed with the final order, thinking - as she would later state - that she (the attorney) would appeal the order.
Upon consulting with an appeals attorney, the mother's attorney was advised that she had no grounds to appeal and that her best bet was to file a motion for a re-hearing.
From the attorney's account, it's easy to see why she had no grounds to file an appeal: she didn't raise the objection during the hearing and ensure that it was "for the record." Something like: "Your Honor, for the record, I object. Final orders in this matter require such and such and there is no such and such to substantiate your order, which is because, per your own admission - you did not think this hearing was for final orders."
Like a lot of attorneys, this attorney probably didn't want to tick off the judge, so her client suffered.
After consulting with an appeals attorney and learning that no appeal was possible, the attorney brags about drafting a 35 page motion for a rehearing. The rehearing was granted but, as the attorney relates, her client ran out of money and had to go it alone at the hearing.
The mother ended up with orders that were a bit more favorable than the first off-the-cuff orders, but still didn't get what she should have and could have gotten.
The reason the attorney sent out the story is because she sells a self-help course and wanted to promote how the mother - after she could no longer afford the attorney who failed her - used that same attorney's "course" to represent herself at the hearing.
While I'm all about learning how to represent yourself - even if you have a lawyer, this attorney, instead of using this tragic story to promote her course, should have represented the mother at no cost since she failed the mother at the first hearing by not properly objecting.
That would have been a story worth telling: an attorney actually saying "I screwed up and here's how I made it right."
In general, if you haven't figured it out already, whether it's a legal matter, a medical matter, a religious matter, or any matter, we cannot rely on the "experts." We MUST educate and advocate for ourselves. Don't worry about pissing off the "big people." It's YOUR life.
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