Posts Tagged ‘Going to Court’

Use of Therapists as Witnesses

Wednesday, November 17th, 2010

Asking your therapist to testify in court on your behalf, or to speak to a court-appointed evaluator, can greatly assist you in your case. Your therapist knows you well, and will be able to comment on your concerns about your children’s well-being, your efforts as a parent, and your problem-solving abilities. Judges typically find that therapists who testify on their own client’s behalf, and who do not testify about the other spouse if they have not interviewed him or her first hand, are helpful to the court. Click here for more information.

There are limitations and drawbacks to using a therapist to testify, however: your therapist probably has not met your spouse, and may not have met your children. He or she therefore can only comment on you, and not on someone that he or she has not met. 

By calling your therapist to testify, you are waiving your therapist-patient privilege, i.e., the confidentiality of your discussions with your therapist.  Prior to calling your therapist to testify on your behalf, everything that you and your therapist discussed was covered by a special doctor-patient privilege, and was confidential.  Your therapist cannot be called to testify without your permission, except in a few very limited circumstances.

By calling your therapist to testify for you, you are giving your permission for your spouse or his or her attorney to question your therapist about your diagnosis, relationship, and treatment.  Before you ask your therapist to testify for you, decide whether or not you feel comfortable giving up your confidentiality. Sometimes people are surprised by what they learn when their therapist testifies. If your therapist is not experienced in giving testimony, it is easy for him or her to be caught off guard by the opposing lawyer, and to have difficulty explaining to your advantage. Also, many very competent therapists will strongly encourage you to leave them out of the dispute, so that they can be most helpful to you in the ways for which they are best trained, and which is most respectful of the confidentiality of your relationship.

If the court-appointed evaluator wishes to speak to your therapist, you will also lose your confidentiality privilege. Under these circumstances, however, it is usually best to permit your therapist to speak to the evaluator unless there is a compelling reason to preserve the confidentiality of your relationship.

Unless and until you put your own mental health into question, your relationship with your therapist is strictly confidential.

For example, if you are claiming that you need alimony because you are unable to work because of a psychiatric disability, you have put your own mental health into question as part of your divorce case.  In addition, most courts have determined that by pursuing a custody matter you have also voluntarily put your mental health into question, and therefore your prior therapeutic records may lose their protected status with respect to confidentiality. This is because your mental health is generally perceived to affect your parenting. Therefore when you make a custody claim, assume your mental health is necessarily involved. Click here for another terrific article.  

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 

(C) 2008  Peace Talks Mediation Services, Inc.

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Posted in Child Support Issues, Custody, Divorce Preparation, Going to Trial | 1 Comment »

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.

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 

(C) 2008  Peace Talks Mediation Services, Inc.

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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.

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 

(C) 2008  Peace Talks Mediation Services, Inc.

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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.  

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 

(C) 2008  Peace Talks Mediation Services, Inc.

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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.

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 

(C) 2008  Peace Talks Mediation Services, Inc.

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