How deeply into the daily lives of couples should family law judges venture?

That was the ultimate question from a reader in a situation that, despite “living” in divorce court for many years, I had never been asked. For anyone considering law as a career and who cares more about helping than seeing their photo on a billboard and a fat bank balance, then today’s story shows you one of the reasons why becoming a lawyer is a path to understanding the human condition.

Our story began with a phone call from “Sandrine”: “Mr. Beaver, I own an insurance brokerage, and ‘Roy’ is my top producer. His wife, ‘Pam,’ is with me right now, and we are worried. You are on speaker, and she will explain why we are calling and need your help.”

Pam said, “Roy recently began participating in triathlon competitions. He is in his late 40s, and for men in his age bracket and older, there is a much higher risk of sudden cardiac death. I want him to be here for our 11-year-old twin boys! We grew apart, are going through an amicable divorce, and I obviously need him to help support our family. Our boys are just crazy about him. Is it reasonable of me to ask a family law judge to order Roy to give up these triathlons for our sons’ sake?”

The risks of triathlons

Many studies establish that running a triathlon is a severe test of physical fitness. Even if a person is in good shape, there is a small risk of sudden cardiac death, most likely to occur in the swimming portion of the race — usually the first part of the triathlon.

The rate of death is generally agreed to be 1.74 per 100,000 competitors. While that seems like a small number, the overall figure in healthy athletes, for comparison, is 0.5 per 100,000 per year. Stated otherwise, participating in a triathlon raises the risk of death by a factor of more than 1,000.

I wondered how folks from various walks of life would view this situation and framed the question this way: “Given the small but real potential of death in participating in a triathlon, should a family law judge get involved in a parent’s participation in dangerous sporting activities?”

Only one person — a family law attorney’s paralegal — felt that the best interests of the children should encourage a judge to address a parent’s choice of sports if that activity statistically could lead to his death. She also recommended obtaining a large life insurance policy on him.

Comments from family law attorneys/judges

When I ran the question by family law attorneys and judges, their responses were almost identical. Below, I paraphrase three of them — Southern California Certified Family Law Specialists Ed Thomas and Glen Rabenn and the Honorable Scott Gordon, who retired from the Los Angeles Superior Court, spending over 17 years in family court and is now a mediator.

They said that it would be extremely unlikely for a judge to tell the father that he could not participate in a triathlon. This is particularly true if his doctor thinks it is OK, and the request is being made by his soon-to-be ex-wife. Judges will view the request as an attempt to control her former husband’s behavior.

A better case could be made for a court order that prohibits the father from smoking, drinking alcohol or doing drugs. In the right circumstances, courts will give orders prohibiting a parent from doing those things when they are around their children.

Most judges believe that, if you want to kill yourself by living an unhealthy lifestyle, it is your business and not something with which a court should be involved. Does anyone seriously think a judge has the power to order a parent to stop overeating?

Think of hockey, equestrian competitions, scuba diving, even driving a car. Courts cannot get involved in telling a parent what they can or should do unless it poses some risk of harm to the children.

My Zoom session with the family

Sandrine, Pam, Roy and, to my surprise, the boys were all in our Zoom session, which initially was filled with laughter and hugs, making me wonder why this couple wanted to divorce.

I began our discussion: “Roy, you know that everyone here is concerned about your well-being and wants you to quit these triathlons due to the small but real risk of death. A family law judge isn’t likely to tell you to stop. Frankly, I did not expect your sons to be here, but since they are 11 years old, let’s hear from them.”

“Daddy, we love you and are scared when you go to these events.” Their faces instantly transformed from smiles to fear and tears, and then they were enveloped by Roy and Pam in an embrace that left me with a lump in my throat.

“Roy,” I said, “all I ask is that you think it over.” He agreed.

The following day

Roy phoned and said, “Mr. Beaver, not only am I quitting triathlons, but Pam and I made an appointment to see a marriage counselor. Thanks so much.”

I replied, “Thank your boss, Sandrine. Our meeting was her idea.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Can a Judge Tell a Father to Avoid Risky Triathlons for His Sons? appeared first on Dennis Beaver.

If you live in a neighborhood that is governed by homeowners association (HOA) rules, or are considering buying into such a neighborhood, then I’ve got a book recommendation for you.

The recently published Bad HOA: The Homeowner’s Guide to Going to War and Reclaiming Your Power by Southern California-based attorney Luke Carlson can keep you from pulling your hair out (and the resulting premature baldness) if you wind up with a bad HOA board.

Carlson said he wrote Bad HOA “to provide homeowners the tools to deal with often frustrating and costly situations. Still, I believe in the HOA concept and have had many highly positive interactions with boards that work to benefit all of their homeowners.”

Who should consider buying in an HOA?

Carlson described the people for whom living in an HOA would be a good fit:

They prioritize property values and neighborhood stability, which are not always reliable characteristics of traditional homes/neighborhoods.

They want a group — almost like a government agency — that acts as an enforcement arm of the governing agreement all homeowners in the neighborhood sign. If homeowners have a problem, they can go to the board.

They appreciate having a safety net that is able to prevent/resolve conflicts, such as the neighbor who parks junk cars on their lawn, allows their home to fall apart or refuses to safely maintain vegetation — such as trees at risk of falling, creating risk of personal injury or property damage — that are common in traditional neighborhoods.

They want uniform rules about home colors and property modifications to prevent changes that could adversely impact neighbors or their property values. When everyone is required to have nicely maintained homes and yards, Carlson notes, the community is enhanced.

Who would not be well-suited to live in an HOA?

Carlson said he has found that residing in an HOA community is not appropriate for everyone. He described people who might not appreciate the restrictions:

They don’t want constraints on what they can paint the exterior of their home.

They intend to run a business out of their house. That’s permissible in non-HOA neighborhoods, but many associations have restrictions on operating a commercial venture from homes.

They see an HOA board as Big Brother, rather than a safety net. They don’t want anyone having a say over what they can do with their house.

“You’ve got to know yourself,” Carlson said. “Be honest and ask, ‘Can I be happy with these restrictions?'”

What do bad (and good) HOA board members do?

Bad HOA lets readers know what bad HOA board members look like:

• They disregard state laws governing a board member’s activity and the HOA’s governing documents.

• They attempt to personally benefit from their decisions.

• They ignore their fiduciary obligations and set rules that amplify their power in the community or benefit them financially.

Carlson also lists the attributes of a great HOA board member:

• They take their obligations to the community seriously.

• They understand and follow governing documents.

• They acquire a good grasp or their state’s HOA laws, and when in doubt, they consult the association’s lawyer for help.

When things go wrong, keep emotions out of it

If you encounter a conflict with your HOA board, Carlson offers the same advice that most lawyers hear in law school about biting your tongue: “If issues wind up becoming litigated, HOA attorneys just love it when they can present a judge or arbitrator a homeowner’s letter that screams anger and profanity.

“Always remember that whatever you put in writing to the HOA board will be read by others. So, address the issues in a logical, reasonable manner, being mindful of your emotions. Keep it clinical, factual and on point. This will serve you well.”

Homeowners have power

Bad HOA shines a spotlight on the nightmares that often occur with poorly run HOAs and offers suggestions on how to deal with them.

There has been so much media coverage about HOAs that have gone really bad,” he said. “I wanted to help homeowners and potential buyers realize that if this happens, you are not condemned to being a victim of that reality. You have tremendous power.”

Bad HOA, which is accessible and so well written, is the only resource I have found that offers step-by-step instructions that empower frustrated homeowners who may have thought, “I’ve got no power at all.”

On the contrary, they do not have to tolerate the actions of a bad board or board member. They can push back against unfairness, and Bad HOA outlines how to do that successfully.

We need more attorneys like Carlson. You won’t see him in television commercials, boasting about how much money he has gotten for victims of auto accidents.

Instead, he and his team devote their education and experience to helping, a goal that many of us had when entering law school, before dollar signs got in the way.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Dealing With a Bad HOA Board? This Book Could Be Your Battle Plan appeared first on Dennis Beaver.

Update: California Fish Grill has let us know that they have tweaked their menu options. Their note is included at the bottom of this article.

Today’s story will be of special interest to people who have some of the most difficult and often highly frustrating jobs — restaurant servers.

When a customer orders “fish and chips,” what should be on the plate?

The answer for most people: enticing pieces of battered fish filets and French fries, right?

Well, one seafood chain restaurant is defying expectations — and not in a good way.

Imagine you have years of experience in hospitality, and this is your first day at a restaurant that specializes in seafood dishes. You were warned by coworkers that how one item on the menu is served has angered guests because, by default, it does not come the way most customers would anticipate.

When ordered at the counter, it does not automatically come with fries, your coworker says. The menu — posted on a wall — says ‘Fish and Chips,’ but it fails to state that unless fries are selected as a side (at no extra cost), it will be served without them.”

A call from upset customers

On a recent Sunday afternoon, a few of my older readers who had just left a Southern California location of this “sustainable seafood” restaurant called me. “Several of us ordered fish and chips, with vegetable sides,” one said, on speaker, “and we wound up feeling like we’d been victims of misrepresentation.

“No one had ever heard of fish and chips being served without fries, but that is what we got. Our embarrassed server admitted this creates a great deal of confusion and upsets customers.”

Another said, “This is like ordering spaghetti and meatballs, bacon and eggs, biscuits and gravy, peanut butter and jelly or any recognized dish that has two or more components, but you get only half of it.”

I called several locations to confirm this

After I did some online research, it was clear this was not a unique situation. To confirm it was a widespread practice, I phoned several California Fish Grill locations around the country and asked, “When I order fish and chips at the counter, what does it come with?”

Answers varied, including:

• “Unless you specify fries from a choice of sides, you won’t get them.”

• “Your fish will be on a bed of salad.”

• “The fish will be on a bed of fries.”

• “You’ll get just fish by itself if you do not select a side.”

“OK,” I said each time, “how do I know that I have to select fries from the sides (in order to get the chips part of the meal)?”

The answer: You won’t unless you’re told, and you might not be informed.

Interestingly, one highly insightful employee said, “You sound like a reporter or a lawyer. If you are, may I call you back?”

I agreed, and he did return my call, at which time he raised other aspects of this craziness. (He requested anonymity for fear of reprisal.)

“Being a server is tough enough without the employer creating a situation where unhappy customers yell at you,” he said. “I am attending law school and wonder if they have ever heard of a toxic workplace suit or a class action, because that is what they are risking.”

He is correct.

The company’s response

I phoned California Fish Grill’s Southern California headquarters and was referred to a very friendly employee in the marketing department who asked that her name not be used, and I always respect such requests.

“Fries automatically come with the child’s plate,” she pointed out. “Guests may select (fries) from a list of sides, and if you place your order from a kiosk, then automatically (the fish and chips) come with fries.”

Somewhat mixed messages, right? And this practice doesn’t take into account research showing that younger customers are more apt to use kiosks to order food, while older people in general say they feel rushed or confused while using a kiosk and prefer human contact.

She had no explanation for why fries were not automatically part of every fish-and-chips order. She said “someone higher up” in the restaurant chain would call me. I am still waiting.

Would this be a violation of truth-in-menu laws?

I ran my reader’s situation by Minneapolis business attorney Aaron Hall, who has written extensively about truth-in-menu laws. His first response was, “Dennis, are you kidding me? Is this for real? No way!

“Truth-in-menu laws are intended to prevent deceptive marketing, protect consumers from fraud and promote fair competition within the food industry,” he underscored. “Violations can result in fines, business penalties and reputational harm.

“Restaurants are required to serve what is listed on the menu. Items that have two or more components — such as fish and chips, spaghetti and meatballs, biscuits and gravy — must contain the stated components.

“A restaurant whose menu lists fish and chips, but when served, by default, comes without the French fries unless a customer specifically orders them would be deceptive and subject to civil lawsuits and potential criminal penalties, depending upon the jurisdiction.”

Stephen Barth, attorney and professor at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston, had a two-word reply to my question: “How would you describe this nonsense?”

“Rather deceptive,” he said.

A class-action superior court judge’s opinion

A longtime friend of this column, California Superior Court judge “Tony,” who has presided over class-action lawsuits, commented, “Not only misleading, (but it) could amount to false advertising and also would be considered as unfair competition. If the economics worked out, we could be looking at a class action. This is an insult to customers.”

Finally, one comment sums up this craziness, from Las Vegas-based Eric Barth (Stephen’s brother), who designs restaurants and food halls. “I don’t understand what they are accomplishing by this. The confusion alone when guests are served probably makes the service team and management crazy. Sometimes people in my business never fail to amaze me.”

What you can do if you encounter an issue like this

If you are missing an item from a restaurant meal that you feel should have been included (such as the “chips” portion of “fish and chips,” here’s what you can do:

• First, don’t take out your frustration on the servers. They only work there.

• Do not eat the food until the issue is addressed. If the server claims the item is an extra charge, politely point out that it is shown on the menu, which implies its inclusion. A reputable restaurant should provide it at no extra cost to maintain good customer relations.

• If the server insists on charging extra, ask to speak with the manager or owner. Most will try to resolve the issue to ensure customer satisfaction and avoid negative reviews or complaints about false advertising.

• You are not obligated to pay for an order that was not as described or to which you did not agree. A reasonable approach is to pay for what you did consume and deduct the price of what was missing.

After all of this, I feel it’s important to point out that California Fish Grill has earned the praise many customers give it. Aside from this fish-and-chips controversy, the restaurant’s food is excellent. In fact, it has become part of our weekend routine: California Fish Grill for lunch, followed by a visit to Aldi.

Let’s just hope that management wakes up before local district attorneys and state attorneys general wake them up.

The California Fish Grill team responds:

“Thank you for bringing this to our attention. Our goal is to always provide as many choices as we can for our guests, but it appears that with our Fish and Chips, our customization options have inadvertently caused some confusion.

“We really want to clear this up, just like our Grilled Plates & Taco Combos, our Fish and Chips have always been offered with two sides. Our Fish and Chips have historically been offered with French fries and kaleslaw, but both sides can be swapped out for other choices if a guest chooses to do so.

“As mentioned, we can see how this can be misinterpreted, so we’re making a few simple changes. Our Fish and Chips now come standard with French fries and a choice of one additional side. As you point out, you expect Fish and Chips to have French fries, so this option will not be modifiable.

“If a guest is not a fan of French fries, they can order a soon-to-be-offered “Battered Fish” dish where they are able to choose any two sides so that everyone can make their meal exactly how they want.

“We hope this will bring clarity, while still allowing our guests the flexibility and options they love.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Fish and Chips? More Like Fish and a Side of Customer Confusion and Anger appeared first on Dennis Beaver.

“Mr. Beaver, your recent story about the employer who recommended a personal injury law firm to his employees because he liked the firm’s television ads hit a nerve with me. I am involved in something similar that I would like to discuss with you, and I hope you can help. Please call. Thanks, ‘Ted.’”

When readers ask me, “Where do you get such interesting stories?” — this is how.

“So, what’s going on, Ted?” I asked.

“I own an office/home remodeling company. ‘Jason’ has been here since he graduated from high school. He is 25, married and has two kids. Recently, while driving in the rain, his truck hydroplaned and slid into a ditch. He wasn’t injured, and the truck wasn’t damaged.

“The state troopers responding to the accident suspected a DUI, and Jason blew a 0.12% (the legal limit is 0.08%). He was arrested and spent the night in jail. I learned from his wife they were having some issues, and Jason was drinking way too much.”

Ted told me he did not want Jason to have a public defender “even if he qualified financially.” He had been watching the YouTube videos of Texas Judge David Fleischer and others who call attention to cases in which lawyers do everything they can to keep repeat offenders out of jail.

“Instead of letting repeat offenders spend time in custody, these lawyers enable and encourage behavior that harms society,” Ted said. “I did not want a PD to give Jason the message, ‘Drunken driving is no big deal.’”

More to the story

As no jail time for a first DUI in their state would be fairly common, there had to be more to Ted’s fear. I asked him why he was so concerned.

In answering my question, Ted revealed that he is an employer who gets it. He cares about the people who work with him — he doesn’t think of employees as working for him.

“I was in Jason’s shoes 30 years ago at age 25 and caused an auto accident where, fortunately, no one was hurt. My grandfather hired a lawyer whom he told to ask the judge to give me several weekends in jail. At that time, there would normally be no jail time. But no one told me any of this. Even though I was the client, my lawyer didn’t tell me about this conspiracy that put me in jail, and I know his silence was technically not right.

“It was a lesson I’ve never forgotten and would not have learned had it not been for those weekends in the slammer. At my grandfather’s funeral, I was handed a letter he wrote to me years earlier that explained what he had done. He saved my life and, perhaps, other lives as well. I am so grateful to him and that attorney.”

That’s what Ted wanted for Jason.

No ‘I can get you out of this’ nonsense

After seeing a TV commercial for a DUI attorney and reading many Yelp reviews, Ted hired “Greg,” telling him, “I am not paying you for a defense, so no ‘I can get you out of this’ nonsense. I want you to have Jason admit his guilt and do some time in jail, or I fear he will keep on drinking and driving. He has a wife, two kids and is putting them all at risk!”

But Greg told him that without Jason’s full understanding and agreement, ethically he could not just tell him to plead guilty. He did say he would tell Jason what Ted felt was best.

However, as Ted discovered later, that did not happen. Instead, Jason was informed there was a real defense, the case dragged on for months, and he was finally allowed to plead to “unsafe driving for the conditions.”

Jason celebrated the dismissal of his DUI, on the same day, at a bar with friends until 2 a.m. Driving home, he hit a telephone pole, winding up with a leg fracture. His blood alcohol level was 0.24%. There are substantial medical deductibles to pay.

How did this go south?

After obtaining a signed authorization from Jason and Ted, I phoned Greg, who immediately admitted his office screwed up. “I assigned Jason’s case to an associate who never saw my memo, which said, ‘Tell client what employer feels is in his best interest — based on his own experience — a straight-up guilty plea and several weekends in custody.’

“Dennis, I feel terrible about the accident, because I am quite sure without that dismissal, he never would have gone to the bar with his friends. So, I want to pay for Jason’s medical deductibles as a way of trying to make things right. Please convey that to your reader.”

Greg added, “Family conspiracies to send a loved one to jail after a DUI save lives. Jail therapy is often the only thing that works.”

I phoned Ted to tell him, “Greg would like to speak with you, and I am certain you will be pleased with what he has to say.”

As mentioned in my previous article, here are some tips if you need to hire an attorney:

Get referrals. Ask friends, family or colleagues who they’ve worked with.

Do your research. Consider the attorney’s experience and check their reviews on websites such as Lawyers.com and Avvo, paying particular attention to the negative ones.

Ask questions. Make sure you ask the lawyer about their experience and fees when you first meet.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post His Employees Don’t Work ‘For’ Him, But ‘With’ Him appeared first on Dennis Beaver.

In over 40 states, attorneys are required to take a continuing legal education (CLE) course in technology and the law, which includes AI, artificial intelligence.

I had the pleasure of watching New York attorney James A. Sherer’s engaging podcast about AI on the Learn-Formula platform — a provider of continuing legal education courses.

As a partner in the New York office of BakerHostetler, he co-leads the Emerging Technology Team for the Digital Assets and Data Management Group and answers clients questions about AI.

During our interview, he took me on a tour of AI and what it can do.

I also discussed practical applications with Palo Alto, California-based attorney Pablo Arredondo, vice president, co-counsel at Thomson Reuters and co-founder of Casetext, which has a commanding 34% market share of AI research tools for lawyers.

It is a fascinating time to be a lawyer

“The power of AI is simply amazing,” Sherer says enthusiastically. “It can manage enormous amounts of data and, in effect, has read every book in the law library. It can also become a litigation coach — as if you are talking with an associate who has perfect recall for all of the documents in a case.

“During a deposition you can ask it to suggest questions that you might not have thought of, but which seem logical based on the data you have provided.

“Applied to a lease or a contract, it functions as a spelling and grammar check, and will reduce the potential for malpractice — minimizing the chance of something important being overlooked.”

Makes a Lawyer Far More Efficient

Lawsuits often create massive amounts of paperwork and exhibits to review. These can create “David and Goliath” situations where one side, in response to a discovery request, delivers banker boxes or their equivalent, comprising hundreds of thousands of documents.

“If one side does not have the time or personnel to go through everything,” Sherer notes, “they could miss something critical to their case. But AI reviews it all and might uncover highly valuable facts to support a position the attorneys were unaware of before.

“While it is an amazing technology,” he cautions, “we must maintain vigilance and need to develop systems that are self-correcting, as we have the duty to be sure AI acts in a legal and fair manner.”

Justice Delivered Faster and Less Expensive

To learn more about how AI is being used today by lawyers and its practical benefits for clients, I asked Arredondo to explain AI’s economic benefit to both lawyers and clients.

“This technology help in obtaining justice faster and is less expensive, without a drop in quality, making it especially valuable to people who might not be able to afford top shelf lawyers, or who rely on legal clinics to find attorneys to help them.

“Similar to a turbo-charged engine, it greatly enhances speed and makes lawyers more efficient, able to do more at a reduced cost to the client. For example, AI can help you with your research and send it over to the word processor to be more seamlessly folded into the brief that you draft with its help.”

Finding that Needle in the Haystack

Historically, document review could take weeks to months, depending on how many and the number of associates in a law firm were pouring over them, and the expense can be substantial.

Often, you have a hunch that a handful of relevant emails or other evidence exists in a data dump which could contain hundreds of thousands of emails or other documents, but it is like the proverbial needle in a haystack.

“Using this tool — in a matter of hours — AI has proven its value, by finding what the lawyers hoped would be there. So it’s not just helping attorneys reach the same level of quality faster and more efficiently, it enables us do a better job and get to a better outcome and with a real savings to clients,” he underscores.

Failure to Use it – Basis for Malpractice?

Arredondo is confident that AI will become something that clients expect their lawyer to use.

“I envision a day when failure to use it will be malpractice as it is catching things that humans miss. A lot of solo practitioners are getting it. So we were happy to see it being adopted, not just at the big firms but at small ones as well.”

Fewer people Will Be Needed

Will AI have an impact on people wanting to enter the legal profession?

I put that question to Professor Nancy B. Rapoport of William S. Boyd School of Law, University of Nevada, Las Vegas and her writing collaborator, Joseph Tiano, the founder and CEO of Legal Decoder, a legal data analytics company.

“Yes it will,” they replied. “”Fewer people will be needed at the lower, entry levels.”

And that is something to think of when looking at a career in law.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post How AI will impact the legal profession and benefit clients? appeared first on Dennis Beaver.

January 6, 2026  • By Dennis Beaver

Over the many years I’ve been in law practice, a client’s adult child has more than once called with an urgent need to come into the office, saying, “It is about Mom and Dad. Their judgment about the financial things they were always on top of seems to have fallen off of a cliff. We have to protect them from themselves, but how?”

Usually, they add, “But they are both highly independent and would not stand for control of their finances to be taken away.”

It doesn’t have to be.

I am getting more and more of these calls as our population ages, and the issue often is because my advice to an older couple — “you need to cut ties with this crooked contractor” — is rejected, and they decide to stay with the con to their detriment.

My article last week about Walter and Patty, As We Age, Embracing Our Own Self-Doubt Can Be a Gift: A Cautionary Tale About Elder Financial Abuse, is a case in point.

Guarding against future financial mistakes

When adult children see their aging parent(s) begin to act impulsively or make financial decisions that aren’t sound, this is the time to have a consultation with an elder law attorney — before things get worse. These lawyers focus on the legal needs of older adults, including:

• Long-term-care planning

• Medicaid eligibility

• Estate planning and trusts

• Powers of attorney and health care directives

• Asset protection

• Guardianship and conservatorship

• Elder rights and elder abuse prevention

Today, we look at how an elder law attorney can address financial vulnerability and exploitation by putting safeguards — guardrails — in place that reduce the chances of future mistakes while preserving the parent’s dignity and independence as much as possible.

Effective preventive financial tools

The elder law attorneys I know are among the most compassionate individuals in the legal profession. The last thing an aging parent who has always been in control of their finances wants is to lose that ability.

• How can a family protect them without giving the impression that they are taking over a parent’s life?

• Elder law attorneys use a win-win strategy that demonstrates family support instead of completely limiting Mom or Dad’s financial freedom.

• An elder law attorney can design a limited authority framework that:

• Requires a second signature for contracts or large purchases

• Allows a child to access/monitor accounts

• Allows the parent to have day-to-day control up to a specified dollar amount

• Instructs the parent’s bank to flag and stop attempted withdrawals or payments to anyone over a specified limit and notify the adult child if that is attempted

• Requires the signature of an adult child or named person for amounts over a set dollar figure

• Arranges for a copy of the monthly bank statements to be sent to a designated relative or third party

• Employs anti-exploitative measures, including fraud alerts from all three credit bureaus, credit card spending limits, trusted-contact notifications and automatic bill pay, which may reduce a parent’s confusion on which bills to pay

Also, if a parent has signed a questionable or predatory contract, an elder law attorney can identify grounds for cancellation and speak with the company or reach out to lawyers familiar with the legal issues involved.

For example, I am frequently contacted by attorneys whose clients have become victims of timeshare and rooftop solar sales scams.

What a durable power of attorney accomplishes

An elder law attorney can set up a proper (more on what’s considered “proper” in a moment) durable financial power of attorney, which allows a trusted family member to handle financial affairs if the parent becomes mentally or physically incapacitated because of illness or accident.

A durable power of attorney for health care — aka medical power of attorney or health care proxy — is also essential.

Trusts protect assets from scams and impulsive decisions

Depending upon a family’s assets and needs, an elder law attorney will explore using a trust as a way to protect older people from making poor decisions, squandering their funds or being a target of scammers.

The concept is simple: Control of assets is given to a responsible child or professional fiduciary/trustee, who manages these assets while restricting the aging parent’s direct access.

The objective of all trusts is the preservation of assets for the benefit of the parent or designated beneficiaries.

Why hire an attorney when most of this stuff is free online?

I am occasionally asked, “Why spend the money on an elder law attorney when I can get all the forms and information for free online, or pay just a few dollars for a kit with fill-in-the-blank forms that promise to be as good as hiring a lawyer?”

My answer: What you pay an attorney to draft proper estate planning documents is often much lower than the costs of fixing a botched DIY plan.

Growing up, our parents loved and cared for us. We owe them the same now.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post How an Elder Law Attorney Can Help Protect Your Aging Parents From Financial Mistakes appeared first on Dennis Beaver.

The recent wildfires in Southern California and natural disasters elsewhere in the country have left thousands of people grappling with enormous loss — and the complex insurance claims process that follows.

Insurance companies owe a duty of good faith and fair dealing with policyholders. Unfortunately, some carriers are notorious for using unfair, manipulative and deceptive practices to delay, deny or minimize payouts of valid claims through unethical or illegal means. This is known as insurance bad faith — and it is crucial to be on the lookout for these tactics as you begin to rebuild your life.

While I do not recommend immediately hiring an attorney, under some circumstances — such as when bad-faith tactics are suspected — there is no choice. This is where lawyers experienced in bad-faith insurance practices are worth their weight in gold.

It never hurts to schedule a consultation, even at the very beginning, as a lawyer can help clarify your insurance coverages and be ready to help if it turns out that your carrier isn’t playing by the rules.

But as I stated in an earlier column, How to Deal With Property Insurance Claims After Wildfires, unless your carrier has flat out denied the loss or you suspect bad faith, allow the claims process to proceed and do not rush to retain an attorney, as the expense might not yet be justifiable.

I spoke with a friend of this column, Los Angeles attorney Shant Karnikian, managing partner and trial attorney with one of our country’s leading bad-faith law firms, Kabateck LLP. He addressed the following important points for how to proceed with an insurance claim and avoid common pitfalls.

Get a copy of your policy.

Whatever renters or homeowners insurance you have, contact your carrier to obtain a copy of the complete policy. Review it in detail to ensure you understand your coverage limits, deductibles and specific provisions related to the damage. Don’t forget to check other relevant policies, such as auto insurance or umbrella insurance.

Document everything.

When you can visit your home, take photos and videos of all the damage. You may need professional help, such as appraisers and structural engineers, to assess the full extent of the damage. An attorney can help connect you with the proper experts if necessary, but don’t be in a hurry to incur avoidable expenses. Allow the claims adjusters to do their work. Businesses should document all business losses and interruptions related to the incident.

Save all receipts.

You’ll need proof of whatever expenses you incur related to the disaster.

Keep a diary.

Take detailed notes and save records of every interaction with your insurer — letters, emails, calls, phone numbers, dates and times, names of the representatives you’ve spoken with and so on.

Prioritize your health.

Don’t return to your property until authorities have said it’s safe to do so.

Secure affordable temporary housing.

Most homeowners/renters policies cover a period of additional living expenses (ALE) for housing while you are displaced.

Follow proof of loss requirements and meet all deadlines.

Many insurance policies have strict policies and timeframes for reporting damage and filing claims.

Stay on top of your insurance company.

After filing, follow up on a regular basis to ensure your claim is being processed and that you have completed the requirements and provided all necessary information.

Don’t jump at your carrier’s first offer.

Do not feel pressured to accept an initial assessment or lowball offer, especially if you have not obtained a second opinion on valuation. Do not sign a release when accepting periodic payments.

Don’t rush into contracts.

Don’t sign contracts for repairs, rebuilds, clean-up/debris removal and so forth before you know the status of your claim. Be on the lookout for scammers targeting disaster victims.

Inquire about resources.

You may qualify for assistance through FEMA and/or the Small Business Administration (SBA).

Consulting with an attorney

Seeking advice early in the process from an attorney experienced with property losses — before filing your claim — is advisable, but ethical lawyers will not rush to sign you up unless it becomes clear that you are being dealt with improperly.

If you do encounter bad-faith tactics, a lawyer can advocate for you, analyze and address every aspect of your claim, help you build a strong case, identify overlooked benefits, navigate disputes with your insurer, ensure your rights are protected and help maximize your claim — but only when it is necessary, as avoidance of unnecessary attorney fees is crucial.

How to recognize bad-faith practices

I asked Karnikian to describe what insurance bad faith looks like. He said that insurance bad faith comes in many forms, including:

Failure to respond to a claim promptly
Refusal to communicate
Lack of reasonable standards for prompt investigation or processing of a claim
Failing to conduct a fair investigation
Requiring unreasonable proof of a loss
Misrepresenting terms and policy provisions
Denying policy benefits without a clear or valid explanation
Nondisclosure of limitations or exclusions when the policy was sold, or including those in the “fine print”
Delaying decisions and resolution — failure to approve or deny a claim in a reasonable time period after the loss is submitted
Pressuring policyholders to accept a low-ball offer
Forcing the insured to litigate the claim because the insurer refuses to make an adequate settlement offer
Advising policyholders against retaining a lawyer
Threatening policyholders to compel acceptance of an unreasonable settlement offer

If you believe your insurer is using bad-faith tactics to resist paying a valid claim, you can file a complaint with your state’s Department of Insurance, which will conduct an investigation and has the authority to impose penalties and fines on companies for violations.

In addition, depending on your circumstances, you may be entitled to pursue a bad-faith insurance claim in court to recover compensation and hold the insurance company accountable for its breach of contract.

A successful claim can help you gain compensation for:

Contract damages. The amount of wrongfully denied benefits, plus interest.
Extra-contractual damages. Other significant economic losses, as well as mental and emotional distress caused by your insurance company’s failure to fulfill its contractual obligations, including attorney fees.
Punitive damages. Generally reserved for extreme bad-faith cases and considerably more difficult to prove, punitive damages can be awarded to punish the at-fault party.

Proving insurance bad faith after a natural disaster can be very involved.

Your lawyer can help you build the strongest possible case to demonstrate that your insurer acted unreasonably and without proper cause.

“Lawyers who care will try every way possible to keep their clients out of court,” Karnikian says. “We are here to listen and help.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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Friends of this column, Brian Kabateck of Kabateck LLP, and his partner Shant Karnikian have earned a nationwide reputation as among the most successful plaintiff’s lawyers handling cases on behalf of consumers against insurance companies, large corporations, and wrongdoers.

Brian Kabateck has served as President of the Los Angeles County Bar Association and the Consumer Attorneys of California. Concerned that the actions of a select few nefarious lawyers have risked the reputation of an entire profession, Brian and Shant felt the need to share some guidelines for the average consumer to keep in mind when hiring an attorney.

1. Understand timing and expect reporting from your lawyer. Generally, cases have important dates or events like status conferences, hearings, and trial setting conferences during which important decisions may be made. Your lawyer should be advising you of all important dates and rulings.

2. Always be aware of the agreement you entered into. If this is a contingency fee agreement there should be specific percentages laid out in the contract also known as the “retainer agreement”. Understand those percentages. This is particularly important when you are settling the case. Often clients misunderstand the percentages because some attorney agreements might have a sliding scale starting at a lower percentage if the case settles early and going to a much higher percentage if the case goes to trial or gets close to trial.

3. The lawyer’s fee is earned when the case settles and when the settlement funds. Unless you dispute the amount of fees, the lawyer is entitled to take his or her fees upon payment of the settlement. This fee is dictated by the retainer agreement, and it is compensation for the lawyer’s time and effort.

4. In addition to the lawyer’s fee, expect that you will be charged costs and expenses. The case is not free. Not only does the lawyer earn a fee but often the lawyer is advancing costs like filing fees, the cost of ordering court reporters, or copies of transcripts. Those costs may be deducted before or more likely after the attorney fee is charged.

5. Look closely at the costs that you are being charged. Ask for a breakdown. Watch out for certain “hidden costs” which may be impermissible such as an administrative cost to set up a file for the lawyer or a cost to review a file. These are more traditional legal fees which are being disguised as costs. On the other hand, the agreement you have signed may authorize the lawyer to charge a cost for setting up a file.

6. When reviewing costs, determine if it is an in-house fee that the lawyer is charging or if it is an outside vendor. Often lawyers may charge you costs for an in-house fee which is perfectly permissible if it was outlined in the retainer agreement.

7. At the end of the case, often the net recovery for the client can be put into a “structure” or an annuity which will provide a substantial tax benefit to the client, but be very careful if the lawyer claims they are investing money for you or promises to invest your money. This is most often impermissible and is a red flag.

8. Another red flag would be any long delay after settlement. After you enter into a settlement you can usually expect anywhere from two to four weeks before the settlement will fund (sometimes longer if it takes longer to execute a settlement agreement) but any delay beyond that is worth an explanation. Also, within a short period of time after a settlement funds you should receive your net proceeds. Delays are a warning flag.

9. Another warning flag is asking for money during the case when it is not called for. Sometimes lawyers will ask their clients to pay for costs or expenses that they have already contractually agreed to advance.

10. If you win the case and the other side appeals or if you lose and you decide to appeal, your retainer agreement or contract with your lawyer may not cover an appeal. Be sure you understand that in advance and be sure the lawyer is not charging you for something you have not agreed to. It is completely permissible for the lawyer to ask the client to sign a new agreement for an appeal, but they cannot charge you more money unless you have agreed to it.

11. Make sure the lawyer you hired is the lawyer who is actually going to try your case. It is not uncommon for lawyers to handle lawsuits and then refer it out to somebody else to try, but you want to know that up front. Are you hiring a lawyer who is going to try your case? Or are you hiring someone to simply present the claim and then, if it does not settle, hand it off to somebody else? Most states require the client to agree in writing if the lawyer is going to share his or her fee.

12. If you fire your lawyer, they may put a lien on your case but, in most situations, they cannot demand payment upon firing unless the retainer agreement calls out for it. Conversely, if the lawyer withdraws from the case or decides to stop representing you in the case, many states do not allow the lawyer to recover fees.

13. Remember that the case is going to take a long time to work its way through the courts, particularly in the post-COVID world. Courthouses across the country have become log jammed with cases and trials. A case that could go to trial in 18 to 24 months before the pandemic may now take three to four years or longer because of the backlog. Delays are expected, but make sure your lawyer keeps you informed about the reasons for such delays.

14. You may have a great case with clear liability and substantial injuries or damages, but you need to find out early from your lawyer if the defendant has the ability to pay or if there is adequate or inadequate insurance. Make sure your lawyer communicates with you.

15. Communication is the great panacea for all difficulties in an attorney-client relationship. No client has ever complained because they have gotten too much information. Conversely, be wary of a lawyer who is not keeping you posted on what is happening in your case or ignoring your requests for updates.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“When we read about mayors, CEOs of major corporations and ministers of megachurches getting in conflict-of-interest financial or personal trouble, history has proven there is often a common denominator,” observes attorney Steven Kelly, a former prosecutor and associate commissioner at the New York City Department of Consumer and Worker Protection.

They probably failed to seek the advice of outside counsel. “From small, family-run businesses to massive corporations,” Kelly adds, “we repeatedly see the one theme that proves how beneficial it would have been to seek the advice of outside counsel and obtain clinically objective guidance that a good, truly independent attorney can provide.”

And why is outside counsel able to provide such objective advice? “Because he or she has not become intoxicated by the power that comes from being too close or dependent on the client for their job,” Kelly says. “We think of our attorney as a trusted adviser, someone who will not simply interpret or explain the law, draft contracts or other legal documents, but rather, who is familiar enough with you to understand what kind of activity or behavior not only poses a legal risk, but a reputational risk. You need a lawyer who can look you in the eye, no matter how powerful you are or what position you hold and tell you, ‘No, don’t do this.’”

Outside counsel also has the advantage of their prospects not being tied to yours — giving you bad news doesn’t affect their livelihood. “An attorney who works in-house or within that inner circle of people who have worked alongside you historically and risen with you to that position of power may have their own career and wealth prospects tied to yours,” Kelly notes. “So, arguably improper, unethical or illegal activity may exist and will be overlooked due to an incentive to appease and agree. But outside counsel has no such incentive. They may risk losing you as a client, but they have other clients and, as representatives of their firm, understand that it isn’t just your reputation that is at risk, it’s theirs. This helps them provide much more clear-eyed, clinically objective advice.”

When the boss blames the in-house attorney

When things go south for an elected official, corporate executive or other powerful person, their worst enemy can be the in-house lawyer. For example, a mayor accused of abuse of his position for personal financial gain might say, “I ran this by my advisers, including some attorneys, and no one told me it was wrong.”

Kelly says that “inner circle” attorney is in a very difficult position: “That lawyer is of course bound by rules of professional conduct that prohibit disclosing communications with their client. What we are seeing now in New York City are advisers who surround the mayor — many who are attorneys themselves — trying to get ahead of the indictments and resulting scandal by resigning, or risking their own legal reputations and career prospects going forward. Additionally, because they are attorneys, they risk being brought up on violations by their state bar, facing a fine or losing their license. And when the lawyer is believed to be involved in the criminal activity, this may destroy the attorney-client privilege and open the door to damning evidence against the boss, as lawyers can defend themselves if accused of malpractice.”

A recommendation to seek the advice of outside counsel would be better, Kelly points out: “That lawyer would have been in a far better position if the employer were told, ‘I think it is best if you get a second opinion on this.’”

Advice to employees who know what the boss is doing is wrong

I asked Kelly what a caring employee should do — who should they speak to — when they know that the boss is doing bad stuff. He provided these approaches:

Realize that silence is not an option. When you are aware of unethical, illegal or any type of inappropriate behavior being committed by the president, CEO, executive director or other higher-ups of an organization, you should not remain silent about it, regardless of where you are on the organizational chart.

Does the organization have a reporting mechanism? Larger companies usually have guidance in their employee handbooks that says, “If you are aware of potentially inappropriate, unethical or illegal behavior or activity, these are the steps that you follow.” There may be a separate office within HR or the general counsel’s office with whom you can speak.

Best practice is to not just rely on the reporting mechanism that exists within the organization, but to also memorialize the steps you took to report it. This can protect you from retaliation, because you can demonstrate that you reported some type of nefarious activity before they fired you or otherwise retaliated.

If there is no such reporting mechanism, consult with an attorney and rely on the advice of counsel as to the next steps to take, such as reporting to a regulatory agency or, if you’re fired, bringing a wrongful termination suit.

Concluding our interview, Kelly cautions, “Eventually, (the questionable activity) will come out of the shadows,” putting your own reputation at risk.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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Ask any lawyer what one exam gave them nightmares years after graduating law school you will almost always hear, “the bar examination.”

It is generally viewed as the most difficult exam a law graduate will ever take. Pass it, and you are sworn in as a member of bar. But not all are successful.

A typical explanation for why the bar exam exists is, “To evaluate an individual’s mastery of legal knowledge, reasoning, and ethical principles. Passing these requirements demonstrates that a prospective lawyer has the minimum competencies required to represent clients effectively and uphold the integrity of the legal system.”

‘No Way Will we Hire You’

“Mr. Beaver, my brother-in-law has asked me to hire his son Blake as our company’s in-house attorney, and explained, ‘He has interviewed with just about every law firm in town, but when they learn that they had to take the bar examination 15 times before passing, he is shown the door.’”

“I’ve known Blake all his life, would sure like to help him, and don’t want to disappoint my brother-in-law. Do you think I should be concerned that it took him almost eight years to pass the Bar? Thanks, Phil.”

The Bar Exam is a Gatekeeper

I ran this question by Vashon Island, Washington-based Jennifer Anderson founder of Attorney to Author, where she helps legal professionals bring their book projects to life.

She was a California attorney for nearly two decades before becoming a freelance writer, writing coach and ghostwriter. She has written extensively on this topic.

“Let’s face it. There are people who skate through law school and ultimately lack the ability to be lawyers. The bar exam is a gatekeeper. It is designed to test a person’s ability to see relevant facts, identify and analyze legal issues and apply legal standards to those facts.

“That is the practice of law. Every time a client walks through the door you are presented with facts and legal issues. If you can’t see the issues, your clients are harmed.

“Taking the bar exam twice a year for almost eight years is telling you something; The practice of law is likely not for you.”

The Bar Exam is Stressful

Anderson believes that the bar exam is also relevant and important because of the pressure. “It is a stressful test, and the practice of law is often highly stressful, especially in litigation. You need to perform under great pressure, and if you can’t, your clients will suffer. In a real way, the pressure of the bar exam prepares you for the real world of law practice.”

Legal Ethics Portion Hugely Important

Anderson feels there are too many ways for lawyers to wind up doing bad things.

“I am shocked at the number of unethical lawyers who we see arrested for stealing from their clients. Fortunately, in addition to a required legal ethics course in law school, there is an ethics portion of the bar that forces thinking about choices a lawyer has to make.”

The Written Portion of the Bar

“Lawyers are called upon to write important things, regardless of the area of law they practice. If you cannot communicate in an organized, effective way, then you are going to do a poor job for your client. The portion of the bar exam that requires essay writing is absolutely critical and plays a huge role in whether someone passes or not.

“I also believe there should be an oral element to see if you are able to communicate effectively on your feet.”

States that Limit the Number of Times

Some things do not get better with repetition, the bar exam is one of them.

“Statistics show that if you have not passed the exam after three tries, you may never pass it, as chances for success go down with each try,” Anderson said, adding, “and we see that reflected in the states that only give you three of four chances to pass. Some states allow as many tries as you are willing to pay for.”

Our Advice to Phil?

Both of us feel that Phil would be best advised to run the risk of hurting his brother-in-law’s feelings and not hire Blake. There are other ways of using his law degree.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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