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Personal Assessment: Going to Trial

Thursday, April 8th, 2010

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.

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: Going to Trial, Peronal Assessment, Pretrial Prep
Posted in Divorce Preparation, Emotions During Divorce, Going to Trial, Litigation, Preparing for Court | Comments Off

Holding Your Ground without Conflict

Monday, March 29th, 2010

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

Tags: Boundaries, Conflict Management, Disengaging from Conflict, Holding Your Ground
Posted in Conflict Management, Divorce Preparation, Emotions During Divorce, Going to Trial, Litigation, Preparing for Court | Comments Off

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

Thursday, March 18th, 2010

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

Tags: Going to Court, Lying, Perjury, Pretrial Prep
Posted in Divorce Preparation, Going to Trial, Hidden Assets, Litigation, Preparing for Court | 1 Comment »

Expert Witness and Valuations

Thursday, March 11th, 2010

If you have had an expert appraise your home, review your income figures, perform a custody evaluation, a business valuation or analyze other types of evidence, but you are unable to reach an agreement on these matters with your spouse, the expert witness may need to be called to testify in court. This testimony will aid the judge in making a decision about the matters in dispute.

The expert must be disclosed to the opposing side, meaning that his or her name, address, business telephone number, as well as a summary his or her conclusions must be provided in advance of the trial. If the expert has prepared a copy of a report, such as an appraisal or written evaluation, that must also be provided. If the opposing sides wishes to depose the expert, he or she may do so. Click here for an article on expert witnesses.

If you need to have an expert testify in court, the expert’s fees are your responsibility unless the court makes orders otherwise. Click here for an article on expert witness’ fees.

What Kinds of Discovery Can be Used at Trial as Evidence?

In addition to documents and live witnesses, you can also use depositions and prior testimony as evidence in trial.

Depositions and Prior Testimony

Depositions are sworn testimony taken under oath prior to a trial or hearing. They were discussed in detail in Chapter 5, and a set of sample deposition questions appears in the appendix. Because the testimony at a deposition is obtained under oath, recorded by a court-authorized professional, and all parties have had an opportunity to be present for testimony, a deposition can later be used in court under certain circumstances:

If you depose a witness who is not available at the time of the trial (i.e., out of state, in the hospital, deceased) the deposition can be entered into evidence in lieu of that person’s testimony

If you depose a witness who testifies in court with answers that are different than those given in the deposition, you can use the deposition in court to show that the witness’ testimony is contradictory. Your goal is to indicate to the court that the witness is either lying in court, or has lied previously under oath.

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

Tags: Going to Court, Pretrial Prep, Testimony, Witnesses
Posted in Divorce Preparation, Going to Trial, Legal Issues, Preparing for Court | 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
Posted in Divorce Preparation, Going to Trial, Legal Issues, Litigation, Preparing for Court | Comments Off

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
Posted in Divorce Preparation, Going to Trial, Preparing for Court, Uncategorized | Comments Off

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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Archive for the ‘Preparing for Court’ Category

Personal Assessment: Going to Trial

Holding Your Ground without Conflict

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

Expert Witness and Valuations

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?