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HON. CLAY M. SMITH, RET.

  • Based in Orange County, available in All of California
  • Available for Mediation, Arbitration, and Private Judging assignments

Introduction

Judge Smith retired from the Orange County Superior Court after twenty years of distinguished service. He presided over a broad range of civil cases including family law where he served for the last 9 years and spent 3 years as a Supervising Judge of the department, Presiding Judge of the court's appellate division, and a special master for the Commission on Judicial Performance. Judge Smith, known for his scholarly approach to judicial decision-making, is the author of more than a dozen published legal articles and has been honored by several bar associations. Judge Smith has presided over a broad range of civil cases, including personal injury, professional negligence, employment discrimination, real property and business disputes.

Prior to his appointment to the bench, Judge Smith was successful in the practice of real estate, environmental, and business transactional law. He is a frequent lecturer and panelist in the areas of family law, civil procedure, and legal ethics. He brings his commitment to excellence and service to his role as a mediator, arbitrator, and private judge. He commented, "I am painfully aware of the high cost, both financial and emotional, of protracted litigation. I am energized by the opportunity to help litigants reach an earlier and less costly resolution."

Practice Areas

Experience Summary

Notable case types Judge Smith oversaw as a superior court judge as well as cases handled in private practice

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Hobbies & Interests

In his spare time, Judge Smith is a baseball fan, Harley-Davidson enthusiast, and a traveler.












Experience Summary

FAMILY LAW

Judge Smith's judicial tenure included nine years on the family law panel, including three as supervising judge. He has presided over hundreds of family law trials, request for orders hearings, settlement conferences, and related hearings.


COMMERCIAL AND REAL PROPERTY

As the assistant general counsel and officer of an NYSE corporation, Judge Smith was directly responsible for the planning and documentation of hundreds of significant corporate and real estate transactions. As a judge, he conducted numerous jury and bench trials resulting from commercial transactions. His deep experience with both the business and legal aspects of commercial transactions give him a superb background for the mediation or arbitration of related disputes.


PERSONAL INJURY AND PROFESSIONAL NEGLIGENCE

Judge Smith has presided over numerous jury trials resulting from accidents causing personal injuries and alleged medical negligence. Several of these trials were the result of catastrophic injuries or death. His experience includes both cases resulting in multi-million dollar verdicts, as well as defense verdicts. His background in this case type is one of absolute neutrality.


ENVIRONMENTAL LAW

Judge Smith has years of experience in the area of environmental law. This includes overseeing environmental assessments prior to the sale or purchase of large real estate portfolios and the implementation of remediation plans. He has also directly handled both the prosecution and defense of many cost recovery actions involving both private PRP's and government agencies.


Legal Career

  • Judge, Superior Court of Orange County (1998-2017)
  • Judge, Municipal Court of Orange County (1997-1998)
  • Arbitrator, Orange County Superior Court (1983-1997)
  • Probation Monitor, State Bar of California (1983-1997)
  • Assistant General Counsel, Catellus Development Corporation (1988-1997)
  • Attorney, Santa Fe Pacific Corporation (1982-1988)
  • Attorney, Rhodes, Kendall and Harrington (1980-1982)
  • Attorney, O’Melveny & Meyers (1978-1982)

Education & Professional Affiliations

  • J.D., University of Utah, Salt Lake City (1977)
  • B. A., Brigham Young University, Provo. UT (1974)
  • Western State University School of Law, Adjunct Professor (Secured Land Transactions, Remedies, Commercial Leasing)
  • Fullerton College, Instructor (Introduction to Legal Studies, Criminal Law & Procedure)
  • Mediation: The Art of Facilitating Settlement, Straus Institute for Dispute Resolution (2006)

Achievements & Awards

  • Member, Civil Law Education Committee (2003-2008)
  • Member, Judicial Service Advisory Committee (2001-2007)
  • Planning Commissioner, City of Brea (1997)
  • "Stepping Up to Family Law," Orange County Lawyer, 2008
  • "Watchmen on the Wall – Unsung Heroes of the Rule of Law," Orange County Lawyer, 2008
  • "Intersections Along the High Road," Association of Business Trial Lawyers Report, Fall 2004
  • "A Lonely Decision," Orange County Lawyer, December 1999
  • "Chronical of a New Judge," Orange County Lawyer, June 1997
  • Chair, Open Space Task Force, City of Brea (1993)
  • "Epting v. Utah, Misapplication of Governmental Immunity." 1976 Utah Law Review, 187

Legal Experience

  • Family Law
  • Personal Injury
  • Professional Malpractice
  • Employment
  • Environmental
  • Real Property
  • Business/Contractual

Representative Case Information

Recent Representative Cases

Business/Commercial

Contractual

  • Claims for breach of contract and fraud by business sellers against the buyer and the buyer's successor-in-interest. 
  • Arbitration of medical billing dispute between physician and health insurance carrier regarding multiple years of disputed billings.
  • Mediation of a claim arising from alleged unfair competition in the medical scanning field.
  • Mediation of the dissolution of an ongoing business and allocation of assets and liabilities among three owners.
  • Successful mediation of a claim for breach of promissory notes with various due dates and various interest rates. The dispute arose out of a disagreement about payments made and how they were accounted for.

Fraud/Misrepresentation

  • This was a dispute between the purchaser of a crypto-currency and the issuer, involving issues of fraud and breach of contract. The case was successfully settled.

Family Law

Family Law Issues

  • This trial involved the characterization and division of a complex marital estate and involved substantial forensic accounting evidence.
  • This was a telephonic mediation of proposed changes to the final judgment and related settlement documents.
  • Review Respondent's request for attorney's fees; Petitioner's opposition and request for sanctions; Respondent's reply.  Prepare detailed order on request for attorney's fees.
  • Appointed discovery referee to resolve over 11 years of accumulated child support.
  • Settled very complex case involving very high-income spouses. The claims included breach of fiduciary duty, concealment of assets, and related issues.
  • A request for an order to reduce long-term spousal support. The case settled on a one-time payment in exchange for termination of spousal support.
  • The successful mediation of a marriage dissolution, including all financial issues and parenting plan. The case included complex issues of community interest in a separate property family business, controllable cash flow from the family business, and spousal support buy-out.

Marital Dissolution

  • Successful mediation of a complex family law matter involving an on-going business, out of state real property, and support issues.

Govt./Public Agency

Public Policy

  • Arbitration of disability claim against a large public agency.
  • Arbitration of a contested public employee disability retirement application.
  • Arbitration of an industrial injury retirement claim involving a public employee and a public pension system.

Regulatory

  • This matter resulted in the settlement of three cases pending against a county government and officials. The claims pertained to land use planning permits, Public Records Act disclosures, and mandamus. All three matters were successfully resolved.

Professional Malpractice

Medical Malpractice

  • Discovery referee in a catastrophic injury medical negligence case.

Professional Malpractice Legal

  • This case is a legal malpractive claim with cross-claims for fraud and breach of contract.
  • This case is a legal malpractice claim and includes a cross-complaint asserting multiple claims against plaintiffs.
  • Legal malpractice case involving difficult issues of both breach and damages.

Real Estate

Breach Of Contract

  • Successful mediation of a commission dispute following the sale of a commercial property.

Buy/Sell

  • This case involved a commission dispute flowing from the sale of commercial property. The case did not settle at the initial mediation session. Judge Smith continued to facilitate negotiations and convey proposals and ultimately settled the dispute after more than a year of follow-up.

Home Owners Association

  • Mediation of a dispute between a homeowner and HOA regarding compliance with HOA rules, alleged discrimination, alleged assault, and other significant problems.

Real Estate Land Use

  • Mediated dispute between a City and commercial landowner to resolve multiple code violations, fines, and liens.

Real Property

  • Arbitration of the issue of fair market value of waterfront property. The case involved complex issues of littoral rights, and highest and best use.
  • Settled complex negotiation between owners of a hotel for the sale on the entire project to one of the owners.
  • Provided an advisory opinion and subsequent analysis regarding the effect of Covid-19 on the rights and obligations of a major international company.
  • This case involved a claim by a general contractor against the property owner for unpaid amounts and a cross-complaint for construction errors. The case was settled after two difficult sessions involving the parties' experts, counsel, and insurance adjuster.
  • Participated in a mock trial presentation of a complex case involving multiple international real estate and financial transactions to assist trial counsel to evaluate the strength of various arguments prior to trial.

Tort

General Negligence

  • This case involved claims of negligence by a mortuary which resulted in emotional trauma to plaintiffs/family members.
  • Successful mediation of a difficult slip and fall case resulting in severe injuries.

PI Auto

  • Auto accident case involving soft tissue injury.
  • Served as a discovery referee handling complex issues pertaining to subpoenas and written discovery disputes.
  • Served as discovery referee in catastrophic personal injury case, resolving several discovery motions and subpoena-related issues

Policy Distribution

  • Mediation of the allocation of a policy limits settlement among claimants. This resolved the case pre-litigation.

Product Liability

  • Successful mediation of a subrogation claim by the insurance carrier against the manufacturer of a consumer product. The claim was based on product liability and the contention that a product defect caused the insured significant damages.