Mediation Blog » Litigation

In the Event of a Trial

admin — Mon, 15 Nov 2010 12:00:02 +0000

As in any trial circumstance, collect material evidence whenever possible so you can offer viewpoints other than your own, which is obviously biased. Daycare providers often have sign in and sign out sheets which reflect which parent dropped off and picked up a child. Doctors’ records, school attendance records, report cards, teacher reports, and receipts are sources of evidence. Journals and diaries can be useful, as well. For example, if you are separated and your wife always gets the children to school late on the days she’s responsible for their transportation, the school attendance records coupled with your visitation schedule can be evidence of her irresponsibility. If the teacher’s notes say that your child never has his homework with him on the days after he’s spent time at his father’s house, then this is evidence that his father isn’t taking his parental responsibilities seriously with respect to school work. Click here for an article about what to expect during a trial.

Think of people who could be witnesses to your activities with your child. If you are your child’s soccer coach, perhaps an assistant coach would be willing to write a letter or testify, if need be. Neighbors, daycare providers, friends, relatives, and everyone else who has seen you be a parent to your child are all possible witnesses. People who have seen you often, and know you as a parent, are the best witnesses. Any one example is not sufficient in itself, but when you have multiple examples that indicate regularity, consistency, and familiarity, witnesses matter. Non-relatives are better than relatives, for obvious reasons, but relatives can serve as witnesses, too.

You will need to be careful in how you approach potential witnesses, as many of them may know both you and your spouse and will be reluctant to get involved. Perhaps those who are reluctant would be willing to vouch for your abilities as a parent, without criticizing your spouse. Those who are familiar with your circumstances, have known you well for a period of years, and who are willing to speak out about inappropriate behavior on your spouse’s part are the best witnesses, but explore the possibility of asking others to come forward to help you as well. A handful of well-selected witnesses is more powerful than a laundry list of mediocre ones. Have your witnesses work with your lawyer about how to describe things accurately and adequately, so that your story is clear and convincing.

Some witnesses may provide a letter to the court supporting your position. An example of a helpful letter is:

I have known Jennifer for 15 years. We are neighbors, and our children play together and go to the same school. I am also acquainted with her husband, Ralph. Last year Jennifer and I served as room mothers for her daughter Betsy’s class. This entailed chaperoning on 3 field trips, assisting with 2 craft projects, and providing refreshments for 3 in-school parties. Jennifer is always willing to help….etc., etc., etc.

I also know Jennifer’s husband, Ralph. Last summer I saw him scream at Ralph Jr. when Ralph Jr. fell off his bicycle. Ralph Jr. began to cry, but Ralph Sr. continued to yell. I was concerned, so I went over……..I saw similar events on four other occasions, which began to make me worry about Ralph Jr..

Judith Neighbor
Address + Telephone Number

Click here for more information on divorce trials.

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

Personal Assessment: Going to Trial

admin — Thu, 08 Apr 2010 12:00:29 +0000

Is a trial really needed to resolve these issues? Is there nothing left to give in on? If so, then I have prepared myself thoroughly by orchestrating the best evidence, and the fullest documentation, in my power. Click here for an article on what to do 100 days before your trial. Have I selected the most appropriate witnesses for my case? Are they people who are interested in helping me or my children because they believe in me, rather than because they are friendly with me? I have found people whose opinions are based on experience with me and/or my spouse, and who do not have an axe of their own to grind.

Am I being as truthful and straightforward as possible? If my spouse is not, how am I dealing with it? I hope I am not becoming consumed with revenge or proving the truth. I am keeping my eye on the big picture, and I am taking steps to end my spouse’s ability to distort facts about me by separating our lives in as civilized way as possible.

Am I being motivated by fear? How is it affecting my behavior, in and out of court? I am taking the time to understand my fears, and to put them into proper perspective. I am acting out of a position of strength, not fear. Click here for an article on overcoming the fears of divorce.

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

Holding Your Ground without Conflict

admin — Mon, 29 Mar 2010 12:00:37 +0000

The fear of losing one’s property or children becomes a central motivator to fight back, the way an animal strikes out blindly when it senses its personal or familial security is threatened. As the conflict increases, each person becomes more certain that they cannot trust the other, and therefore must turn to an outside party to police their interactions. The legal system is brought in for its protective functions. However, this view of the legal system stems from its functions in a criminal situation. In the civil realm, the court has few protections that it can enforce. It may be able to stop spouses from being violent or stealing property from each other. But it is a slow and cumbersome process, and often it does too little too late to be of assistance. The threat of the court’s authority keeps people afraid. They fear that their spouse will somehow prevail, they will succeed in unleashing their wrath legally, and the power of the court will be used to condone it. Click here for some excellent conflict management techniques.

If it is early enough in the conflict, you can stop this cycle by refusing to engage. Don’t fight back. Click here for a great article about walking away from conflict. Hold your ground but do what you can not to inflame your spouse. Make small concessions, and bend over backwards not to fight. It means turning the other cheek and letting the other person have their way, but having the fighting stop will work to your advantage later. If you are already fighting over issues you cannot concede to, like sole custody of your child, then you must use the legal process but be sure to work with an attorney who understands your important bottom lines and what is worth fighting for, rather than an attorney who’s interested in supporting the fight. Sometimes an attorney is well meaning, and encourages you to fight because he or she agrees you have been wronged. Such support does not always work to your advantage, despite the best of intentions. Your attorney should help you decide what not to fight about, as well.

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

What if My Spouse is Lying?

admin — Mon, 22 Mar 2010 12:00:39 +0000

If you know that your spouse is lying, inform your lawyer. You are not permitted to talk during the trial while someone else is testifying, so write down anything that your spouse (or anyone else) says that is not true. If it’s urgent, slide the paper over to your lawyer so he or she can read it immediately. If it can wait, talk to your lawyer during a court break. Never allow yourself to have an emotional outburst while court is in session.

Immediately think about what you or someone else knows that will prove that your spouse is lying. If there is a document already in evidence which proves that your spouse is lying, then so much the better. Your lawyer can bring it to the attention of the court. If the court decides your spouse is lying, his or her entire case will be undermined, even if the lie is about a small issue. Click here for an article about spouses lying during divorce cases.

Sometimes the lie is about such a small issue that it isn’t worth bringing up to the court or the judge. Sometimes what you perceive as a “lie” is just a different person’s interpretation of the facts. On the other hand, if your spouse says, “I never took money out of the account” and you have canceled checks from the account showing he or she withdrew $2,000 two days before filing divorce papers, this needs to come to the court’s attention. You and your lawyer can decide together what is worthwhile to pursue, and what is best let go.

Why your spouse’s lie feels so horrible and how to react

Because so much is on the line at trial, when your spouse lies it inflames your sense of injustice. This person is taking you and your life apart, and then trying to lie, putting money above a relationship to you or your children. It reminds you of all the unfairness in the relationship, all the broken promises and smashed dreams. You are especially angry if you know that your spouse is capable of being a more decent person when less self-interested. It is infuriating to have someone get away with an injustice in the forum that is supposed to protect people and see through the deceit. You long for the court to see through your spouse’s manipulations; can’t somebody see what he or she does when it is so obvious?! Whether or not the court can tell that this is a lie, such behavior will likely resurface many times again. You must accept that others may not be able to see your ex as you do, and that you may never get justice. Let it remind you that this is why you are divorcing and it is more important to minimize future interactions with this person than to prove something here. Let it reinforce that you are fighting to separate your lives, not to punish each other. For some information about how to get support when things are tough, click here.

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

If I Did Something That May Hurt My Case, Should I Lie?

admin — Thu, 18 Mar 2010 12:00:57 +0000

Your credibility is the most important element of your case. Deceit is rampant in divorce cases, and judges have little patience for such behavior. If there is a weak point in your case, meet the problem head on. All people make mistakes, and you can describe an incident as a lapse of judgment under trying conditions. If you are sincere and convincing, it will damage your case less than lying would. For an article about what not to do during your divorce, click here.

The importance of truthfulness holds true when the issue is infidelity within the marriage. It is best to admit to obvious affairs and deal with the problem on the stand to take the punch out of your spouse’s argument about an affair. That’s not to say that complete confession during the negotiation phase is optimal. Certainly, each case is different, but telling the truth to a judge in a straight forward and brief fashion at a trial can be much less damaging than ignoring the scenario and waiting for it to be raised by your spouse’s attorney, or having your spouse parade a series of witnesses of photographs through the court after you have not been truthful about a new relationship.

Bud is an attorney who was on trial for divorce. He had been unhappy in his marriage to Janice for many years but had not had an affair. During the final months before separating, Bud fell in love with Samantha, a co–worker, and became sexually involved with her. He never told Janice about the relationship and his intent to marry his new partner, but he was pretty sure she suspected something since he was unwilling to consider counseling or reconciliation. At the trial, he readily admitted to being involved before Janice could accuse him, discussing his loneliness and the new happiness that Samantha breathed into his life. He depicted the new relationship as unfortunate (because it started before his marriage ended) but loving and positive, and expressed the importance to him that Janice not suffer needlessly for it. Despite the high degree of animosity between the couple, the judge believed Bud’s account and rendered the affair as inconsequential compared to the other issues in the divorce.

Once you’ve admitted the relationship, photographs or Valentine’s cards lose their significance as evidence against you. The judge probably doesn’t care much about them at all. However, if you lied, then the lie becomes a credibility issue that affects your entire case.

If you are tempted to lie at any point during your divorce remember that your spouse may have a photograph or document that proves your statement is untrue. You could then be in the unenviable position of attempting to retract testimony that is undercut by the contents of a document, photograph, videotape, or tape recording. Once a judge decides you’re lying about one issue, all of your testimony becomes suspect. As a consequence, you may be punished in the property settlement or alimony aspects of your case. Click here for an article about perjury in divorce cases.

Lying under oath is perjury. Perjury is a crime. Many judges refer perjury in divorce cases to the prosecutor’s office. Judges may also refer matters involving drugs, false tax returns, or other crimes. If these are issues in your case strongly consider settling with your spouse out of court rather than take the chance of facing criminal prosecution along with your divorce case.

If you are tempted to lie about a situation in your case, you speak with your lawyer in advance so that you can decide together the best way to handle it. No reputable lawyer will permit you to lie or will condone a suggestion to lie on the stand, but will assist you in a legal way to minimize any ill effects that you might experience because of the scenario that presents itself.

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

How do I Prepare for the Financial Part of the Trial?

admin — Tue, 16 Mar 2010 12:00:54 +0000

Once all of your documents are in order, the financial issues which are still in dispute should be fairly obvious. You can work with your attorney to organize the documents according to the issues which they represent. If you are not represented by an attorney, you will organize the documents yourself.

For example, if you are claiming your spouse hid money in an account, likely documents which would support that claim would be the bank or stock account records which reflect the money, deposit slips showing deposits into those accounts, pay stubs which show automatic deductions to that account, and perhaps loan documents which show that account as an asset. Those different documents together prove the same point.

Each of the points which you intend to cover should be organized in terms of importance. The most important points should be covered early in the trial. The presentation will also need to make sense chronologically. If you jump around too much in time, the court is likely to get confused.

Make an outline, or assist your attorney in making an outline, of the points that you intend to make in the trial. You will not be permitted to read directly from your outline during the trial, but the act of outlining what you plan to cover increases the likelihood that you will cover all of the crucial points. You may refer to your notes or documents during your testimony with permission of the court, but keep in mind that opposing counsel may also look at any document you use to refresh your memory during the trial. Click here for some terrific information on the financial aspect of divorce.

Also make an outline of what you anticipate your spouse’s case against you will cover. Be prepared to answer questions about those issues. For example, if your spouse has repeatedly accused you of over spending, assume that this will be one of his or her arguments in the case, and be prepared to justify your expenditures. Click here for an article on some of the caveats of mismanaging money within a marriage.

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

Giving Your Testimony

admin — Tue, 09 Mar 2010 12:00:00 +0000

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.

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

What Kinds of Witnesses Should I Consider?

admin — Wed, 03 Mar 2010 12:00:49 +0000

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

What if My Lawyer Says to Get Tough?

admin — Thu, 19 Nov 2009 12:00:47 +0000

You need to determine why your lawyer feels you should be handling your case in a way which feels wrong to you. Ask if he or she feels you are being too passive, willing to accept much less than a court would deem appropriate? Are you being bullied by an abusive spouse into accepting an inappropriate custody and visitation arrangement? The lawyer should be able to outline for you the parameters of the likely outcomes for your case, and together you can match your goals to what the law deems fair. By the same token, after you’ve discussed the likely outcomes with your lawyer, if you decide for your own reasons to accept a low settlement, or to capitulate to a pushy spouse, then it’s your lawyer’s job to follow your wishes.

The most important thing to do for yourself during divorce is to maintain control over your case. You can do that by implementing the planning strategies in this book, and by determining your priorities. Your attorney works for you. He or she has expertise, but that is useful to the extent that it is applied toward making you feel more comfortable about the direction your divorce is taking and helping you to achieve the goals you’ve set for your case — not the other way around. Many clients seem afraid of their attorneys. Others are so afraid they will make a fatal error in negotiation, that they don’t dare re-direct a lawyer that seems to be heading them in a direction they did not wish to go.

If you have doubts about the direction of your divorce is taking, talk over your concerns with your lawyer immediately. If you are not satisfied with the conversation, or if you are afraid to have it, then you need to switch lawyers before more time goes by.

Bonnie wanted to participate in a free alternative dispute resolution program being offered to divorcing spouses with young children. Both Bonnie and her husband Paul expressed their interest, and we made plans to enroll them in the program. Bonnie called back to say her attorney advised her not to participate, playing on her fears that it would result in a settlement less beneficial to her than one he could negotiate. Bonnie could not explain why her attorney felt this way, she just kept whispering that she had to go along with her attorney. Eventually, her divorce became a prolonged legal battle that seemed to emanate from the lawyer’s agenda.

The more you know, the less likely you are to be intimidated by your lawyer. Read up on divorce on the Peace Talks website at http://www.peace-talks.com/divorceinformation.php. Or choose a good book, at http://www.peace-talks.com/books.php.

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