The Treatment of Law section of this site explains the importance of a striking and — as far as I know — rare departure by the First District Court of Appeal from the rules for legal attribution. It did not offer any citation or clearly identify any source in the only murky, convoluted sentence in its officially unpublished opinion — which, like the trial court’s ruling on my case, has somehow found its way onto the internet.
It looks as if the appellate justices were implying that the fragment of text they mention came from my appellate brief, except that it directly contradicts what I established there (see p. 45). When I asked them for clarification and correction in my Petition for Rehearing, they did not answer.
Here is the mysterious, provenance-free passage:
… the parties may either pool their earnings or keep them separate and agree to compensate one party for services that benefit the other.
I first sought help with demystifying it — and the reassurance that my reading-comprehension had not gone seriously awry — from a seasoned lawyer I met four years earlier. He had explained then, in the friendliest way, why he would not be the right lawyer for my case — although he impressed on me that it was strong, absolutely unavoidable, and deserved all the effort and time I could put into it. But when I went back to him for assistance earlier this summer, though he was still friendly, he treated my straightforward question rather like a nuclear potato.
I told the story of his curious turnabout in the following exchange with a law librarian equally nervous about assisting me with checking what was actually said in the California Supreme Court’s so-called ‘Marvin’ directions to lower courts for determining the rights of unmarried partners:
[ Names and other identifying personal information have been deleted from our correspondence. ]
6 June 2017
CB to California law librarian
Dear [ X ],
[ … redacted: unrelated friendly chat … ]
On page 12 of the attached Petition for Review, you will see that I have stated that the Supreme Court’s 1976 Marvin guidelines do not contain the either/or dichotomy to which I refer.
It is possible that the decision in the 1981 trial on remand, Marvin v. Marvin — also commonly referred to as ‘Marvin’ — contains something of the kind.
However, the second document I’m attaching is an extract from my appellant’s opening brief clearly distinguishing my case from Marvin v. Marvin, 1981 (the dispute between the Marvins, as opposed to the Supreme Court Marvin guidelines, which apply to the class of all such disputes between non marital partners or former cohabitants). [ See p. 47-51 here. ]
All the help I need would be a sanity check. Confirmation that there is nothing wrong with my eyes, and that the Marvin guidelines do indeed state what I have said they do.
I could send you the whole AOB and my petition for rehearing, and any other related document, if necessary.
With my thanks and best wishes,
6 June 2017 Law librarian to CB
I’m prevented from giving you an opinion or advice because of the standards of my job. I can give you information and sources of information. In case you don’t know, here is a link for Ca. Courts, which has a self help section which is really good. http://www.courts.ca.gov . Also, if you type in “ask an attorney” in your browser (Internet Explorer) a website comes up and it looks like a lawyer will answer your legal question.
Sorry I can’t just tell you yes or no.
– [ X ]
7 June 2017 CB to law librarian
Many thanks for this reply, which I’ve only just seen.
I hope you won’t think me ungrateful for asking why the question of whether the relevant passage of text in the law (‘controlling authority’) says X or not-X shouldn’t count as giving me information rather than a legal opinion.
But I already know that this question is being treated as radioactive.
I might try ‘Ask an attorney,’ but just before I spoke to you on Monday, I telephoned a veteran lawyer I thought honest and fearless, seeking the same information. I saw him before I ever retained counsel, on the recommendation of a mutual friend, and he told me that he had no expertise in Marvin cases, but that I should feel free to return if ever I needed support or more advice. He did not charge me for a conversation two hours long.
That was in 2013, and I hadn’t communicated with him at all until Monday’s call. He remembered me perfectly, said ‘I cannot help you, I don’t know any law student who could read the relevant passage for you to help you, I do not know any lawyer who could help you, and I cannot discuss this case with you at all.’ I said that as the case was dead — since the Supreme Court had denied my petition for review — how could there be any harm in either giving me the consolation of knowing there was nothing wrong with my eyes, OR telling me I was simply mistaken in the way I’d read the passage? He mentioned the cliché about the Conspiracy of Silence in medicine and said he couldn’t tell me whether it was true or not about medicine or law, ‘But I cannot discuss your case with you.’
Please pass this information on to your colleagues and ask whether your library is indeed meeting the public’s needs for help with research if you are forbidden to give me the simple answer I am seeking — that I am either right or wrong.
My thanks — again —
8 June 2017 Law librarian to CB
My boss was worried when she saw your first email and instructed that I not answer any questions concerning opinions or advice. I hope you understand. I don’t think I could’ve given you an answer anyway as these kinds of legal tangles are not my forte, more of a library guy than a legal guy. [ redacted: unrelated personal exchange about life stories ] It is interesting, though the legal issues that people have. Lots of injustice.
In a state of profound unease — but feeling sure that both the lawyer and the legal librarian would not have hesitated to tell me I was wrong if I had failed to understand the law and the appellate justices — I wrote to the other side of the country. As I have recorded in the Treatment of Law section of this site:
The answer from a librarian on the reference desk of the New York Public Library — a specialist in searches on legal questions — was a model of clarity. First, he recommended that I read the Marvin guidelines with a lawyer, having no idea that I had tried doing that already.
He pasted in the same two paragraphs from those guidelines addressing financial arrangements between partners, in neither of which is there any mention of such a dichotomy. He added that the Marvin text
does explicitly provide for “a great variety of other arrangements”, rather than imposing a dichotomous, either/or, arrangement.
He did not find the language the court of appeal had relied on.
But perhaps both and I and this wholly objective librarian, unconnected to me or anyone I know, are mistaken. If we are, I hope that someone qualified to do so will tell me why in an email to me c/o email@example.com.
Some day, long after legal reformers have opened up litigation and put it online, I expect that my sad and destructive experience of opaque, impenetrable adjudication will be as quaint as a penny-farthing bicycle.
Of this there can be no doubt: lawyers and other legal professionals are petrified of breaking rank.