Gillespie, Shields & Durrant

Five Practice Areas - Exceptional Representation

In Phoenix Call: 602-870-9700
In Mesa Call: 480-985-4000

What do you have to lose?

I just want it over with!!

Giving in?

Even though you might be feeling any one of the above feelings, you are far better off getting advice from a qualified Arizona family law attorney before you agree to anything and especially before you “just give up”. If you give up now, it will be more difficult later to change and/or modify what you agreed to.

Many times you will hear that if you go to trial you are putting your future in someone else’s hands, i.e. the judge, who has never met you and does not know you or your situation. Often, it is said that if you compromise, you are in control of your destiny, which could mean you will settle for less. However it is important to distinguish a compromise from giving in, throwing in the towel, or just allowing the other party to walk all over you.

It is not a race to the finish line to have an agreement made before the filings are even filed. It is not a race to the finish line to settle just “because”. If you fall in this category, you have rights and your rights should be protected, no matter what your situation may be, whether it is divorce, legal separation, annulment, paternity, custody, parenting time, or child support. During these life changing times, parties often are quick to think with their heart, and not their head, which is rarely in their best interest.

If you feel like just throwing in the towel and giving in to whatever your spouse and/or significant other wants, just to get it over with, stop right there and contact an AZ family law attorney right away to ensure you are making a careful and fully informed decision.

Arizona legal proceedings do not always have to involve a fight, they do not always have to be litigated at trial, but just giving in or allowing your significant other/spouse to take advantage of you because they can is something you that you may deeply regret later. The family law attorneys at Gillespie Shields and Durrant are here to assist you in moving forward, while helping you make decisions to protect your legal rights. Knowing your rights in advance is the most important advantage that you can gain.

David Goldfarb is a Partner and one of the exceptional family law practitioners at the firm of Gillespie, Shields & Durrant.
Email information for Mr. Goldfarb: dgoldfarb@gillaw.com
Telephone: 602.870.9700

Mediation for Employers and Employees – Part 2

In Part I of the Discussion of Mediation for Employers and Employees, I discussed the growth of mediation in employment law and the recognition on the part of both employers and employees that mediation most often results in a time savings, and therefore cost savings.  By enlisting an experienced Arizona attorney mediator fluent in the law and skilled at bringing participants to common ground and resolution, both sides win.

Mediation is certainly an expedient resolution method once a legal dispute has arisen.  However, it is also extremely effective in addressing a problem before it has risen to the level that one party might take legal action, whether through the Arizona Civil Rights Division, the Equal Employment Opportunities Commission (“EEOC”), the Arizona Attorney General’s Office, or the courts.  By using a mediator early in the dispute, employers can not only prevent bigger and more expensive problems from forming, but can also increase employee confidence and productivity.

Should a difficulty arise between co-workers or between an employee and manager, a neutral third-party mediator can encourage open and honest discussion in a non-adversarial environment that can preserve employment relationship.  The mediation process itself is a process of respectful exchange and focus on solutions, which itself can improve frayed employer-employee relations.  In the same vein, using mediation for conflicts between employees can forestall greater problems by nipping them in the bud before they become a drain on resources and productivity.  This is a wise use of mediation as it brings about productive resolution rather than passively allowing a problem to fester and undermine relations in the workplace.  It shows the employer’s concern for the employees and for investing in answers so that all involved can return to the work of the company.  Just as important, it shows employees that their opinions and what is important to them, matters.

Mediation is designed to preserve relationships rather than destroy or undermine them.  Employers know that their businesses are more efficient and profitable when employees are able to focus on the work rather than disputes and problems, so logically, all employers interested in increasing efficiency ought to consider the benefits of mediation in the workplace.  To the same end, any employee with a growing problem at work, or a potential suit or legal complaint is wise to propose mediation to his or her employer in order to address and resolve the problem.

Mediation for Employers and Employees – Part 1

Over the last decade, organizations have increasingly recognized the benefits of engaging in mediation as a way to resolve employment conflicts.  Mediation is a process in which a skilled neutral mediator helps participants to bring about resolutions to disputes. Mediation is different from litigation or arbitration in that the participants fashion their own solutions, rather than having an arbitrator, judge or jury decide what solution is best for you.  This means that participants are in complete control of the outcome and the type of agreement reached.  The participants are not trying to “prove their case to win” only to leave the other side feeling like a “loser”.  Instead, the mediator helps the participants to find common ground and solutions to the conflict to develop agreements that the participants enter into voluntarily rather decisions that are foisted upon them.

One advantage to mediation in the employment context is that it is much quicker to get a resolution through mediation than through the courts.  This is an advantage for both employees and employers.  For example, in order for an employee to file a complaint against a employer for sexual harassment, the individual must exhaust the administrative remedies by filing a charge with either the Arizona Civil Rights Division or the Equal Employment Opportunities Commission.  When those remedies have been exhausted, a right to sue may be granted by the agency and only then can a lawsuit be initiated.  This process alone can take up to a year! Mediation facilitates faster resolution so that both the employee and the employer can move on, at a considerable savings in time and cost.

Another advantage to mediation that is often overlooked in the employment context is that it can help the participants to repair relationships and improve communication.  This can be particularly important in employment situations when the individual would like to continue working for the employer and the employer desires maintaining the skilled talent.  Often times, employers do not think of entering into mediation until the conflict is so far advanced that the employee has either filed a complaint with a government agency, such as the Arizona Attorney General’s Office or the Equal Employment Opportunity Commission, or the employee has resigned.  Employers know that the cost of recruiting and retaining good employees is expensive.  The loss of a good employee can be possibly avoided if mediation is offered or available to employees as an earlier option.

Wal-Mart Sex Discrimination Class Action Suit

On March 29, 2011 the United States Supreme Court heard arguments in the “Wal-Mart” case; known as the largest sex-discrimination class action in history.  The outcome will not be known for some time but the court watchers are not in agreement regarding the probable outcome.

wal-mart class action suit

Wal-Mart’s attorney argued that a class of women composed of workers throughout the country numbering well over one million does not have enough in common to be a “class” for litigation.  The lawyer for the plaintiff, class, seemed to have inconsistent arguments: on the one hand he argued that the strong culture in the head office made it difficult for women to receive fair treatment in pay or advancement.  On the other hand he argued that excessive discretion in the hands of local managers was the cause of the discrimination.  Justice Kennedy remarked to Plaintiff’s counsel: “it’s not clear to me: what is the unlawful policy that Wal-Mart has adopted, under your theory of the case.”

For a class action the plaintiff needs to prove “commonality” and “numerosity.”  (Common claims and large numbers)  Manifestly, there is a sufficient number for the class, the issue for the Supreme Court is “commonality.”  Although it is unknown what the Supreme Court will ultimately decide, it looks as if Wal-Mart is ahead at this point.

Dan Durrant

Image Source: http://commons.wikimedia.org/wiki/File:Walmart_exterior.jpg

Dan Durrant – Civil Litigation Attorney

Author: Dan Durrant is an experienced litigation attorney in Phoenix, AZ, providing lead counsel on over 100 trials in his career. Notable areas of practice include: employment law, professional liability, sex/gender discrimination, lender liability, and product liability.

Arizona Law Allows Plaintiffs to Seek Punitive Damages in Court Cases

In some AZ court cases it is possible to ask for “punitive damages” in addition to actual damages.  Punitive damages are those damages awarded in excess of full compensation to victim in order to punish wrong-doer and to deter others from emulating his conduct.  Hilgeman  v.  American Mortg. Securities, Inc., 196 Ariz. 215, 994 P.2d 1030 (Ariz.App.Div.2 2000). Punitive damages serve to punish wrongdoers and to deter others from engaging in similar conduct.  Saucedo ex rel. Sinaloa  v.  Salvation Army, 200 Ariz. 179, 24 P.3d 1274 (Ariz.App.Div 1 2001).

Author: Dan Durrant is an experienced Phoenix litigation attorney, providing lead counsel on over 100 trials in his career. Notable areas of practice include: employment law, professional liability, eminent domain, lender liability, injury, insurance and product liability.

Arizona Homestead Exemption – Protect Your Phoenix Home From Creditors

In Arizona there is a statute that allows homeowners to protect their homes from creditor claims.  It is called the Homestead Exemption and protects up to $150,000.00 of your home’s equity from unsecured creditor claims such as credit card, injury, auto loans etc. Of course, it does not provide exemption from liens to which homeowners agree such as mortgages or deeds of trust to secure loans on the house.  These are called “secured” claims.  Only “unsecured” claims are subject to the Homestead protection.

Example (1): if your home is worth $400,000.00 and you have a mortgage with a balance of $250,000.00, there is an “equity” above the mortgage of $150,000.00 and the  Homestead exemption in Arizona prevents unsecured creditors from claiming your equity.

Author: Dan Durrant is an experienced Arizona litigation attorney, providing lead counsel on over 100 trials in his career. Notable areas of practice include: banking and lending liability, eminent domain, lender liability, injury, insurance and product liability.

Check Litigation Attorney History – Experience Makes All The Difference

Of all the legal specializations, litigation may be the most challenging.  The law allows lawsuits to resolve claims but, not all Phoenix lawyers have courtroom experience.  If someone wants to sue, they need a qualified, experienced attorney.  If the case is tried before a jury or a judge or is settled before trial the skill of the lawyer makes the difference.  For trials or for Arbitration or Mediation, the skill and experience of legal counsel is the critical deciding factor.

Check the Facts

Some Arizona law firms advertise that their litigators have a “combined experience of 100 years.”  That claim is meaningless.  If the firm has ten lawyers, two could have 35 years, two more have ten years and the other six have from one year to five years.  What is important is that “your” litigation attorney is the one with lots of experience.

It doesn’t matter how much experience one of his partners has.  A famous legal scholar and former Federal Judge, said that no lawyer can claim to be a trial lawyer until he/she has tried more than 25 jury trials.  Ask questions before hiring an Arizona trial lawyer.

Author: Dan Durrant is an experienced litigation attorney in Phoenix, AZ, providing lead counsel on over 100 trials in his career. Notable areas of practice include: employment law, professional liability, eminent domain, lender liability, injury, insurance and product liability.

Family Law Mediation

I have found that many individuals and families can greatly benefit from utilizing mediation services when confronted with a child custody, divorce, or child support matter. There are many reasons individuals can benefit from mediation. Mediation can save the parties the future expense of a trial. A trial can be very costly due to the family law attorney’s preparation, which generally includes at least speaking with witnesses and reviewing the documentary evidence. The trial time itself then increases the costs as well. Family law mediation can save the parties the aforementioned trial expenses, which can add up to a considerable savings.

Familiy law mediation can also assist the parties with avoiding the time consuming and stressful nature of a trial. I have often heard many individuals state at a mediation that “they just want to get it over with” or “it will be nice to have this behind me.” Having a mediator assist the parties in reaching an agreeable resolution provides both parties with a finality that is highly valued. A mediator can often assist the parties in considering alternative resolutions that the parties may not have considered. In each case, mediation can provide the parties with a neutral facilitator who is vested in assisting the parties reach a final resolution.

I have heard judges state many times that if the parties are unable to reach an agreement amongst themselves then they will be placing the final decision in the hands of the judge who does not know the parties or their children. I have also heard judges state that one of the parties or both parties may not like the decision the judge makes.

Family law mediation provides you with an opportunity to take the final decision out of the judge’s hands and place it in yours. You then have control over the final outcome and will be assured that the agreement reached at mediation is one that you can live with.

Orders of Protection

Orders of protection are important tools designed to protect people from harassment and violence. However, most people do not understand the legal standard necessary for an order of protection to be granted. An order of protection is granted based on the preponderance of the evidence. The preponderance of the evidence standard is different than the more commonly known “beyond the reasonable doubt” standard applied in criminal law.

The preponderance of the evidence standard is exactly as it sounds. The judge determines what most of the evidence indicates when deciding whether or not to grant or dismiss the order of protection. You could think of it as the 51% standard.In the real world, this means that it is relatively easy to obtain an order of protection. This could be a good or bad thing depending upon where you stand.

If you are being harassed or are experiencing domestic violence, speak to an attorney as an order of protection may be a good solution. Alternately, if an order of protection has been taken out against you without cause, the preponderance of the evidence standard can be difficult to overcome and you should seek out an Arizona attorney with family law experience to assist you.

For better or for worse, an order of protection can drastically alter the course of a divorce or child custody proceeding. Given the low standard necessary for obtaining an order of protection, it is a good idea to have a family lawyer help you with your defense.

Best Interests of the Children

north-star-polaris

When heading into unexplored territory sailors used to look to Polaris, better known as the North Star or the Polar Star, to gain their bearings.  Polaris sits above the earth’s North Pole and thus appears to stay in a fixed position in the night sky. With constant reference to the Polar Star, savvy travelers know with certainty which direction North is. By having this one fixed direction, it became possible to navigate to any destination.

The Arizona Supreme Court has stated that the “Polar star” of family law is the protection of the “best interests of the children.” If you have been through a family court action, like a divorce with children or a parenting time modification, then you have probably heard this phrase before. The protection of children is also my guiding star as a family law attorney in Arizona.

Regardless of the issues between a mother and father, the children should be the focus of any family court action. All of us have an obligation to protect those that can’t protect themselves. Children should never be used as weapons in divorce. Many people do not realize that permanent damage can occur if parents involve their children in their fight. Conversely, if all parties diligently work to limit the impact of divorce on children, amazing results are possible.

It is impossible to get to where you want to go if you don’t know where you are. If you find yourself lost in your divorce or other family law matter, look to the “Polar Star.” If we utilize the protection of children as our Polar star, we can successfully navigate through the hazards of divorce and reach the safe shores on the other side.

Phoenix Law Office
7319 North 16th Street, Suite 100
Phoenix, AZ 85020
T: (602) 870-9700
Mesa Law Office
2152 S. Vineyard St.
Bldg. 11, Suite 136
Mesa, AZ 85210
T: (480) 985-4000

Our Arizona law firm proudly serves the following areas: Avondale, Carefree, Chandler, Coconino, Fountain Hills, Gila, Gilbert, Glendale, Graham, Maricopa, Mesa, Navajo, Paradise Valley, Peoria, Phoenix, Pima, Pinal, Scottsdale, Sun City, Surprise, Tempe, Queen Creek, Yavapai and Yuma

The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.