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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.

Testimonials

"It is my pleasure to recommend Honorable Judge Clay Smith. I just finished a successful mediation with Judge Smith in which he was instrumental in reaching a global settlement of a dissolution case involving challenging custody and financial issues. After having appeared in front of Judge Smith for years in family court I have developed the utmost respect for his wisdom, calm presence and compassion. He truly cares. We are fortunate to have him more readily available now to resolve our cases in private mediation as opposed to through often times toxic litigation in court."
- Attorney on a Family Law Matter

"I cannot say enough good things about Judge Clay Smith. Judicate West is truly lucky to have him as part of the team. "
- Attorney on a Business/Contractual case

"Judge Smith is a very welcome addition to the available neutrals to preside over family law matters. Your staff was very accommodating, and your facility is very conducive to achieving a settlement. I look forward to future engagements of Judge Smith."
- Attorney on a Family Law Matter

"The mediator was great. Will definitely schedule with Judge Smith again. "
- Attorney on a Real Property Transaction case

"It was a privilege having you mediate this case for us. I was very thankful for your skill, compassion and management over the mediation process which was pivotal in assisting us to reach resolution. You stayed with us in the late hours beyond the call of duty to get the job done and settlement would have not been possible without your assistance."
- Attorney on a Family Law Matter

"[He was] able to get another very difficult case settled. We remain extremely satisfied and impressed by [his] skills as a mediator. [He has] a true gift! "
- Attorney on a business/contractual dispute

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)
  • Adjunct Professor, Western State University School of Law (Secured Land Transactions, Remedies, Commercial Leasing)
  • Instructor, Fullerton College (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.

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.

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.

Professional Malpractice

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.

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.

Tort

General Negligence

  • This case involved claims of negligence by a mortuary which resulted in emotional trauma to plaintiffs/family members.

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