Mediation Blog » Testimony

Use of Therapists as Witnesses

admin — Wed, 17 Nov 2010 12:00:30 +0000

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

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

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

Hearsay

admin — Mon, 22 Feb 2010 12:00:14 +0000

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