Mediation Blog » Pretrial Prep

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.

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

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

Expert Witness and Valuations

admin — Thu, 11 Mar 2010 12:00:29 +0000

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

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

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

admin — Mon, 01 Mar 2010 12:00:40 +0000

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

What Documents are Needed by the Court?

admin — Thu, 25 Feb 2010 12:00:32 +0000

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

What Counts as Evidence?

admin — Mon, 22 Feb 2010 12:00:19 +0000

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