8th District Roundup
I may have been on vacation, but the gang down at the courthouse on Lakeside wasn't. There've been some recent decisions of interest. I'll look at a couple of civil ones this week, and some criminal ones next.
If you practice domestic relations law, you probably know about the local rule that says your client must have gone to the parenting seminar before he or she can be awarded custody of the kids. That's not just chin music, as the court declares in Barry v. Barry, voiding an award of custody to the husband because he'd failed to take the seminar in the two years that the case was pending.
Even more interesting is the how the court handled visitation. The court psychologist, appropriately named Dr. Lovinger, recommended against shared parenting, finding that "while I would not want the children to spend less or more time with either parent," the wife's tendency toward histrionics made joint decision-making impossible. The court seized on this statement to determine that the trial judge erred in granting standard visitation instead of equal parenting time. That seems to be a fairly slender reed upon which to conclude that nothing less than equal time will do, and one comes away from reading the opinion with the belief that the court might have been more acquiescent in the outcome if the trial judge had appeared to actually give some thought to visitation, and hadn't made such a hash of the rest of the case. (He was also reversed for awarding the husband attorney fees -- both parties made about $60,000 a year -- for giving the husband 100% of his retirement and 50% of the wife's, and for ordering the wife to pay 93% of the parties' business debts.)
On the purely civil side, something to keep in mind the next time you've got a client who has been rudely and roughly expelled from one of the local taverns: while claims against bars and their "security personnel" have become de rigeur ("Tonight on Fox: 'When Bouncers Attack!'"), insurance companies have taken to writing very broad exclusions exempting coverage for such injuries, including claims for negligent monitoring, hiring, or supervision. This case from last week affirms a summary judgment award for the insurance company, and demonstrates some of the language that's being used in these policies.
Speaking of summary judgment, in my research on other legal blogs I ran across an interesting discussion of the subject, sparked by this article on why summary judgment is unconstitutional. (The cite I gave you is the abstract for the article; if you want to read the whole thing, page down and click on one of the links under "download the document from.") The author's argument isn't nearly as outlandish as it might appear: he essentially contends that the 7th Amendment was intended to protect the right to jury trial as it existed at common law, and the common law didn't have any provision for summary judgment. It's a decent textualist argument, but I'm not sure I buy it, and I'm highly skeptical of whether the courts will.
Which may be too bad. There's some recent research out there, as well as some anecdotal evidence, that suggests that summary judgment is being dispensed more freely and, more significantly, that it's not really cutting down on court dockets. In fact, it may be having the reverse effect: rather than resolving cases early through settlement, if there's any doubt as to the viability of the action, the parties now defer settlement discussions until after summary judgment motions have been ruled upon, necessitating substantial expenditures of the parties' time for discovery, and the court's time for ruling on the motions. There's no question that it's taking up a lot of the appellate court's time: of the 44 cases I reviewed for writing this post, 29 were either criminal, juvenile, or divorce cases. Of the 15 remaining "true" civil cases, 12 had been disposed of in the trial court by summary judgment.