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Archive for the ‘Going to Trial’ Category

Giving Your Testimony

Tuesday, March 9th, 2010

If the reasons that the marriage broke down may influence alimony or property division in your case (each state’s law is different), you will need to describe these reasons clearly and succinctly. That is not to say that you should do this in an unemotional fashion; however, you need to be focused and to the point.

How to minimize nervousness

After preparing for this day for so long, you will feel very nervous, even queasy on the day(s) of trial. Preparation helps reduce anxiety. Have your story clear, know what is important, and practice separating out the emotion you feel from the facts you wish to convey. Tell the judge about the situation, not how you have been wronged. The story will speak for itself. Practice in the mirror the night before if it helps you to feel prepared. Have a friend or family member ask you questions you think the judge might ask. In court, have a trusted supporter sitting in the courtroom, and keep your eyes on that person. Try not to look at your ex-spouse. If it works for you, wear a good luck charm. Click here for an article on minimizing anxiety during your trial.

Other Fact Witnesses

In addition to your own testimony, you will need to decide who you would like to assist you with your case. Get together a list of the names, addresses, and telephone numbers of each possible witness along with a short summary of what information the witness would contribute. Speak with them to find out if they are willing to come to court to testify if necessary, and ask the witnesses if they would speak with your lawyer in advance of the case.

When custody matters are at issue, you may need witnesses as personal references for what kind of a parent you are, how you discipline or treat your children on a day to day basis, whether or not you attended parent/teacher conferences, and other parenting issues. Witnesses may include the children’s teachers, doctors, therapists, the parents of playmates, or your neighbors. Typically the best custody witnesses are people to whom you are not related, and with whom you did not have a particular friendship. A good example is the teacher who saw you coming to nursery school every single day to drive your child, and observed you interacting with your child.

Unless your character has been called into serious question, character witnesses like those seen on TV trials won’t be necessary. The judge will assume that your friends will say nice things about you. If a private investigator has been involved, he or she may also be a fact witness. Typical evidence introduced through an investigator includes your spouse’s driving record, criminal record, and related damaging evidence. Click here for more information about what you can expect.

Typically, the lawyer will call witnesses in advance of the trial and let them know what they can expect to be asked on the stand. The lawyer may even practice asking and answering the questions with the witness, which helps evaluate whether your proposed witness would be helpful in court.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com

Tags: Minimizing Anxiety, Pretrial Prep, Testimony
Posted in Divorce Preparation, Emotions During Divorce, Going to Trial, Litigation | Comments Off

What Kinds of Witnesses Should I Consider?

Wednesday, March 3rd, 2010

Fact witnesses are people who can testify about the facts of the case, such as the length of the marriage, the finances, and why the marriage broke down. They testify about things that happened. Most witnesses are fact witnesses. You are a fact witness. Your neighbor who saw your wife throw a barbecue spatula at your head is a fact witness. Your employer’s payroll clerk is a fact witness.

Your Testimony

You are the most important and best witness in your case. You will testify about the length of the marriage, how assets accumulated, and why and how the marriage broke down. You will testify about your children, and what their lives are like from day to day. You will testify about virtually everything that has anything to do with your case. Your testimony will be very important to the judge. How you look, what you wear, how you talk, and how you present yourself to the judge are all important issues. It’s imperative that the judge believes you, and sympathizes with you. If you are using an attorney, your lawyer will work with you to make the best presentation possible. Click here for an article on your sworn testimony.

You can only perform this function well if you are prepared, if you understand the court’s priorities, and if you understand the theory of your case. The theory of your case is the underlying theme which you or your lawyer hope to emphasize in your trial. It could be you as dutiful, wronged spouse or you as devoted parent unable to make ends meet while your spouse gambles. Discuss this with your attorney before the trial begins, so you provide a consistent picture of your situation.

By the time that you get to this point, you should have already given your lawyer a full written marital history as well as a list of your goals for trial. Putting these two things together will give you a good idea of the theory of your case, and which parts of your testimony are clearly needed. Then you must reconcile your theory with the priorities of the court. Focus your theory around what the judge will want to know. Click here for some additional information on prepping for court

For example, the judge will want to know about your health, your ability to continue working, and what you expect to be earning, as well as this information from your spouse. The judge will need to know if either you or your spouse contributed a larger amount of money than the other, and how you and your spouse contributed in non-financial ways to the marriage. If for some reason you feel that it’s not appropriate that either you or your spouse works because your children are young, or for other reasons, the judge will also need to know about this.

For more information contact Peace Talks www.peace-talks.com

Tags: Court, Pretrial Prep, Testimony, Witnesses
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How Can I do Much of the Work Myself and Save the Lawyer’s Fees?

Monday, March 1st, 2010

You can save yourself money and aggravation if you help your lawyer prepare for the trial. Only you will truly know if the lawyer has everything required, for who is more familiar with your circumstances than you?

There are a number of ways you can help your lawyer prepare your case, especially in determining what types of witnesses will be most beneficial and determining and assembling determining which documents will be needed. Both of these tasks are time consuming, so if you can do them yourself, or at least assist your lawyer, you can save money in addition to feeling like you have more control over your case–and your life. Obviously, if you’re representing yourself, this entire task falls on your shoulders.

For Pro Se litigants: To increase the likelihood that your documents will be accepted as evidence:

find a copy of your state’s rules of evidence. Good sources are your local library, law library, or the internet
make sure you are using an original, or a true copy of an original
make sure it is signed and its accuracy is certified by its preparer (i.e., wage records, tax returns)
if it is a document which you are required to disclose to the other side before the trial, make sure you have done so in accordance with court procedures
if the document is hearsay, a very complicated evidence rule (don’t feel bad, many lawyers don’t understand it either!) which is explained above, determine if there are exceptions to the hearsay rule which may mean the document is admissible anyway. You may need a lawyer to assist with this determination

Even if your document violates a rule of evidence and should be inadmissible, in order for a document to be excluded from evidence, the opposing side must object to it. Sometimes the opposing side will forget to object, or they just won’t bother. The worst that can happen is that the other side objects and the document is not admitted, but you don’t know until you try. Caveat: there’s a difference between assertively attempting to get important documents into evidence and aggressively alienating the judge with endless, repetitive requests.

Practical hint: come to court with photocopies of the document for the opposing side, for the witness to use, and for you to use, as the judge will end up with the original if it is accepted into evidence.

Click here for an article on pro se divorce. For an article to help you determine whether a pro se divorce is for you, click here.

For more information contact Peace Talks www.peace-talks.com

Tags: Going to Court, Pretrial Prep, Pro Se
Posted in Divorce Preparation, Going to Trial, Preparing for Court, Uncategorized | Comments Off

What Documents are Needed by the Court?

Thursday, February 25th, 2010

You and your lawyer will make a list in advance of all of the documents that you have, and those which will be needed at trial. If your financial issues are unresolved, typical documents which are used at trial are:

Your 5 most recent tax returns
6 months to a year’s worth of payroll records or pay stubs from you and your spouse
Any other income records, including independent contractor work, interest and dividends, commissions, bonuses, and earned by not-yet-paid commissions and bonuses
Your and your spouse’s most recent bank statements, stock statements, and credit card statements
Any bank, stock, or credit card statements which show a discrepancy or questionable item, such as an unauthorized withdrawal or charge
Loan applications and financial statements prepared by you and/or your spouse
Pension, IRA, and 401K statements
Real estate records, especially house closing statements and appraisals
Financial records for any businesses or partnership ventures you or your spouse own by yourselves or with partners
Copies of any documents which show that money is owed by you, or to you, or your spouse
Documents showing inheritances or trust income or assets which belong to you, or which will belong to you. Wills and trusts of persons not yet deceased are typically not pertinent. The court is only interested in money which you have, or which you have a legal right to but just haven’t received it yet.
Life insurance statements showing life insurance polices, and any cash balances on same
Records of any gifts you or your spouse have made (over $100 or so) in the last 5 years
Records of the sale of any real property or personal property over $350
A list of personal property which is in dispute
Other documents which tend to prove the allegations you’re making in your case.

Provided you’ve followed the admissibility guidelines above, these documents are typically readily admissible as evidence. Because these documents are used in practically every case, it makes sense to share copies with the opposing side in advance (if you have not already done so through discovery, Chapter 5) to see if you can agree that the documents will be admitted and mark them as exhibits in advance of the trial. If there is an issue about the accuracy of the document, be prepared to prove that the contents are true. Click here for great information on the documents you will need to provide your divorce attorney.

Some of these same documents may be needed if your trial is focused on child custody issues, since living arrangements and financial issues (especially child support, and to a lesser extent alimony) may be tied to decisions about the child’s living conditions. For an article on child custody papers, click here.

For more information contact Peace Talks www.peace-talks.com

Tags: Discovery, Documents, Pretrial Prep, Testimony
Posted in Divorce Preparation, Going to Trial, Preparing for Court, Uncategorized | Comments Off

What Counts as Evidence?

Monday, February 22nd, 2010

Evidence is testimony, documents, physical evidence, and nearly anything else that provides information to help prove the truth (or untruth) of a fact that’s been alleged by either side. Most people think of “evidence” as murder weapons and experts who testify; evidence also can be less dramatic and sophisticated. All of the documents which you collected in Chapters 2 and 5 are evidence. Everything labeled as “discovery” is evidence. In addition to these materials, everything you and your spouse say on the stand is evidence. Click here for an excellent article on what constitutes evidence.

A finer point, but an important one, is that arguments made by lawyers (or by you, if you’re serving as your own lawyer), are not evidence. They are persuasive statements which will attempt to summarize the evidence in a way that’s favorable to your case. Arguments don’t introduce new facts. That’s how you can tell the difference between evidence and arguments. Evidence introduces new facts, and arguments interpret those facts. The judge will listen to the arguments, and may even be swayed by them, but they are not evidence. That’s why it’s important to make all of your points through testimony. For example, if you “forget” to say something on the stand, your lawyer cannot say it for you.

Various kinds of evidence will be accepted by the court. There are many complicated legal rules, but a few basic concepts will help you to understand how and why a judge will accept or reject evidence at a trial. Knowing this in advance will help you prepare your case with your lawyer. If you are representing yourself, you will need more detailed information about the rules of evidence in your state’s court system. You can find this at a law library, or for some jurisdictions, on the internet.

Hearsay

Hearsay is a statement which is made by someone out of court who is not in court to testify. For a good article on hearsay, click here. The statement is being offered for the truth of the matter asserted. That’s the legalese definition. What it means is that you cannot repeat something that someone said outside of the courtroom while you’re in court, unless that person is also in court to testify. If you want to testify that your neighbor said to you that your spouse is not a good parent, you cannot repeat this to the judge unless your neighbor is in court to verify that this is indeed what he or she said. Statements such as “the doctor told me that…” or “the neighbor said…” are not admissible unless either the doctor or neighbor are in court, present, and able to testify. On the other hand, if you want to testify that your spouse made a hurtful comment to you three months before the case started, this is permissible provided your spouse is in court to testify.

For more information contact Peace Talks www.peace-talks.com

Tags: evidence, Going to Court, Pretrial Prep, Testimony
Posted in Divorce Preparation, Going to Trial, Preparing for Court | Comments Off

Hearsay

Monday, February 22nd, 2010

Courts are divided as to whether or not they permit you to repeat what your children have said. Some courts have determined that it is more important that the child not be called into court to testify than it is to follow this evidence rule, and they permit testimony. Other courts appoint attorneys or guardians ad litem to testify on behalf of the child. Very few courts will permit a child to testify, as most believe it should be avoided at all costs.

It is tempting to want your child to testify, especially after all the comments the child has made about your ex and his or her home. Children often shift their allegiances depending on whom they are talking to, and children will feed parents what they think the parent wants to hear. This is how they express their support and love, especially if they are rewarded by your concern about them. Putting your child on the stand requires a public stance that can be devastating to the child, and can tear away at the child’s relationship to one or both parents. Click here for an interesting article on children testifying in court.

Similarly, you cannot use letters in court because they are “out of court statements”. The fact that they’re written and signed usually doesn’t satisfy the hearsay requirement. If you want to use a letter in court, the letter-writer will typically need to be in court to testify.

Sometimes, for the sake of expediting a trial, the lawyers will agree to waive the hearsay problem for certain documents or testimony. Such an agreement must be made prior to the start of the trial, or the introduction of that evidence. Ask your lawyer if this will be possible in your case. A good example of a hearsay problem that is often waived by agreement is a written appraiser’s report. Assuming that everyone involved with the case has had an opportunity to review the report, the appraiser has a good reputation, and the value placed on the asset is within the expected range, then the lawyers may agree that the report come into evidence without a hearsay objection. Click here for an interesting article about hearsay gleaned from Facebook.

An important note about hearsay: you can try and introduce hearsay evidence even though you know that it is technically inadmissible. It is up to the opposing side to make a prompt and appropriate objection. If they do not do so, then the hearsay evidence will be admitted. On the other hand, you do not want to repeatedly introduce hearsay evidence if the opposing side continually makes objections. This will only serve to anger the judge. If a piece of information is crucial to your case, you need to be prepared to have the witness in court to testify to make sure you don’t have hearsay problems with your evidence.

For more information contact Peace Talks www.peace-talks.com

Tags: Hearsay, Preparing for Trial, Testimony
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What is the Exact Procedure in a Trial?

Wednesday, February 17th, 2010

If you are representing yourself without an attorney, you will need to know the step-by-step procedures for a trial. If you’d like to observe an actual trial, most divorce courts are open to the public, and you can quietly slip into a courtroom to observe. You can also consult a trial practice book. A detailed explanation of the procedures is also included in the appendix to this book.

If you are represented by an attorney, the attorney will guide you through the procedures which must be followed, but like with any trip, a map of where you are going is helpful. This chapter includes a short explanation of how things work. For a good article on prepping for a trial, click here.

When you enter the courtroom, the judge presides behind the center podium. A court reporter sits in front. You will take your place at the table facing the judge on one side of the room, and your spouse will do the same across the room. Typically, there is no jury. A court officer sits toward the front of the room as well. He or she will swear in witnesses and announce the judge’s comings and goings.

The plaintiff’s side gets to present first. If you are represented by an attorney, the attorney will decide the order of witnesses and will pose all of the questions. If you are representing yourself, you will make those decisions. The plaintiff gets the opportunity to present his or her whole case before the defendant gets a chance to present his or her side of the story. As the plaintiff calls each witness, the defendant (or the defendant’s attorney) asks questions of each witness after the plaintiff is done. Then the next witness is called. This procedure continues until the plaintiff has finished his or her side of the case. Then the plaintiff “rests the case”, which is the official phrase which tells the judge it’s the defendant’s turn.

The defendant then gets to present his or her side of the case. Ideally, the defendant will not repeat obvious, undisputed facts which were presented in the plaintiff’s case. Facts like “when and where were you married?” and “how old are your children?” need not be repeated. The defendant’s case should focus on introducing defendant and advocating his or her perspective through testimony and evidence. The same procedure for cross-examination as described above is used during the defendant’s part of the case.

In highly conflictual cases involving children, the court may appoint an attorney or other advocate, a guardian ad litem, to represent the minor children. This attorney/guardian will present the case from the children’s point of view after the defendant is finished and “rests”. Click here for an interesting article on high conflict custody cases.

When presenting evidence, it’s easy to get caught up in the minute details of the marriage, and to offer hours and hours of testimony on details that are not relevant to the judge. There’s a fine line between important details, and those that just slow down the proceedings. The judge will not want testimony about a picnic in 1986 during which your spouse called you a “bitch” in front of friends and neighbors. On the other hand, where detail is warranted, don’t be afraid to present it. Click here for a good article on preparing to present evidence in court. Make sure you’re clear in your own mind why the incident is important, and the most concise way to get that point across. This advice is important whether you’re represented by a lawyer, or whether you’re representing yourself. Every lawyer has a story about having a judge fall asleep during a trial–don’t let it be yours!

For more information contact Peace Talks www.peace-talks.com

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When You Can’t Avoid a Trial

Friday, January 15th, 2010

If you know your settlement priorities, and you simply can’t abide by the most recent negotiations and offers that are on the table, then a trial is your remaining option. Inappropriate or non-existent settlement offers are legitimate reasons to try your case. However, needing to tell your story, or seeking justice, or revenge on your spouse by venting every perceived misdeed perpetrated by him or her during your marriage are not legitimate reasons.

Sometimes clients and lawyers are not on the same wavelength concerning what will be important at a trial. While the client may be feeling a great deal of stress, grief, loss and anger over the situation, the lawyer views this essentially as a business deal. The lawyer needs to view it that way — that’s why you are paying him/her: for expertise, experience, and objectivity.

While for the divorcing parties a trial is both an economic and psychological decision, understand that judges are mostly concerned with providing a reasonably fair allocation of income and assets based on the laws of your state. They are not concerned with unraveling every transaction between you and your spouse. Fault issues like endless arguments and hurtful words may be at the forefront of your mind, but will seem minor to the judge. Don’t make the decision to try your case on moral grounds alone. This is essentially a business transaction, even if it doesn’t feel that way, and you need to decide how you can finalize your case in the least expensive way possible. Don’t let your emotions get in the way of a good, solid business decision.

For more information contact Peace Talks www.peace-talks.com

Posted in Cost of Divorce, Divorce Preparation, Going to Trial, Uncategorized | Comments Off

When and Why Should I Go to Trial?

Monday, January 11th, 2010

Before you even think of preparing for a trial make sure that you have exhausted all mediation and settlement negotiation possibilities. There are two costs in a trial: economic and psychological.

The economics of a trial are clear. Unless you are fighting about more than $15,000, a trial could not possibly make any economic sense whatsoever. It makes more sense for you and your spouse to keep the money in your family, even if that means paying more money to your spouse than you’d like to pay, rather than to pay more money to the lawyers to prepare for and hold a trial. The amount of trial preparation that goes into a case is enormous, even for the smallest trial. Trials don’t create money, and they don’t give you more hours in a day to spend with your children. The fees you’ll spend for your lawyer, your spouse’s lawyer, expert witness fees, psychologists, and anyone else who has to be paid as part of the process comes out of your joint pocketbook. Although a judge may allocate the fees to one or the other to pay, that still leaves less total money to divide up.

To make the fee situation even more expensive than it already is, a lawyer doesn’t want to take a chance of ruining someone’s life by doing a poor job in a trial. Your lawyer will want to make sure you have the best representation possible, for the best chance possible at a favorable outcome. As a result, your lawyer will probably over-prepare. This preparation could end up costing you a small fortune. In the end, you may not feel it was worth it, especially if you settle the case just hours before the trial is scheduled to start.

In psychological terms, it is never worthwhile to go to trial except in the most exigent circumstances. The amount of emotional damage which occurs between two spouses during a trial is immeasurable. Imagine how you will feel after you have said every unfavorable thing you can think of about your spouse, and he or she has said every unfavorable thing that he or she can think of about you. And he or she has probably exaggerated, misinterpreted, or made some things up (at least in your opinion!) about you. Now imagine sitting next to this person at your child’s wedding. Imagine running into him or her at the grocery store. Imagine trying to call a former mutual friend. It won’t be easy to live in the same community after a trial, and it will be even harder to effectively co-parent your children. When you’re thinking about whether to take your case to trial, don’t just count the dollars and cents. You need to consider the emotional aspects as well.

Before you proceed to a trial, make sure that what you are fighting over will matter five years from now. If it will not, then find a way to settle.

Take this time to make sure you have done your research. See http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Pretrial Prep, Working with Your Divorce Lawyer
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How to Use the Pretrial Process

Monday, January 4th, 2010

If you do not settle at the court ordered settlement conference, you “advance” to the pretrial stage. During the pre-trial process, discuss the pros and cons of all possible outcomes with your lawyer. Your lawyer should be able to give you a worst possible and best possible scenario, and a range of expected outcomes in-between the two extremes. Your lawyer should also be able to tell you where any particular offer on the table falls in this continuum. Understand that your lawyer doesn’t know for certain what would happen at a trial, but any experienced lawyer can give you a decent guess. Once in a while a case will have a factual scenario that is so unusual that it is impossible to predict a range of outcomes.

Sometimes you will have the unhappy choice of the settlement offer being unacceptably low for you to take, but it simply is not worth the economic or emotional toll to go to trial. This will take some tough thinking on your part to determine whether or not you wish to proceed with a trial. While the settlement may not be fair, it may be better than what even a more favorable outcome would be for you after a trial. You need to consider all of the costs: emotional, financial, and legal, before you decide to turn down a settlement offer.

For example, suppose your lawyer thinks that you should receive at least $20,000 from the settlement on the house. The offer on the table is $15,000, but your lawyer estimates that it will cost you $7,000 to try the case, and that if you try the case you should end up with between $17,000 and $25,000. In this scenario it may not make sense to make the additional $7,000 investment, because you would have to come out with more than $22,000 in order to “break even” with the offer that’s on the table. It therefore makes sense to take an offer that seems unfair, but which is ultimately more cost effective.

Sometimes when a scenario like this happens the lawyer is seen as representing the compromise rather than the client. This is always a tough situation for a client and for an attorney. It’s easy for the attorney to see the dollars and cents aspect of the case, but the client may be feeling that the lawyer should be advocating for what’s best for the client. Yet the lawyer is advocating that the client take a settlement that both the lawyer and the client agree is unfair. If you truly don’t think that your lawyer is looking out for your best interests, you need to fire your lawyer and get a different lawyer. If your lawyer feels that you are in a situation that has become a choice between two unfavorable options, your lawyer should be straightforward with you about that.

For a host of free divorce information, see http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Creating Fair Settlements, Pretrial Prep, Working with Your Divorce Lawyer
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Archive for the ‘Going to Trial’ Category

Giving Your Testimony

What Kinds of Witnesses Should I Consider?

How Can I do Much of the Work Myself and Save the Lawyer’s Fees?

What Documents are Needed by the Court?

What Counts as Evidence?

Hearsay

What is the Exact Procedure in a Trial?

When You Can’t Avoid a Trial

When and Why Should I Go to Trial?

How to Use the Pretrial Process