Divorce Tools & Techniques

Description

Step-by-Step Guidance Through Every Phase of a Divorce Case

There seems to be an almost universal belief among lawyers that anyone with a license to practice law can handle a divorce case. Attorneys who wouldn’t dream of undertaking a personal injury or bankruptcy case have no compunction at all about jumping into a divorce case involving custody issues, retirement benefits, and tax questions with which they have absolutely no experience. After all, “It’s just a divorce. How complicated can it be?” The answer, as any experienced family lawyer will tell you, is: “Plenty complicated.” A divorce is an emotional and legal minefield. Without a detailed plan of action, even an experienced practitioner can be flummoxed by “routine” custody arrangements or property valuation issues; the danger is even greater when the case involves complicated issues arising out of a prenuptial agreement, a bankruptcy, or a family business. Divorce Tools & Techniques is your action plan. From the initial meeting with a prospective client through trial and post-judgment matters, Divorce Tools & Techniques provides step-by-step guidance based on author Rory T. Weiler’s 30 years’ experience handling divorce cases. The following excerpts are just a sampling of what you will learn:

Hiring the Client

Do not negotiate your fee. From your very first encounter with a potential new client, establish that your fees are like any other economic obligation: they have to be paid. To hint or act otherwise simply encourages the client to treat your fees as a negotiable item or, worse yet, to ignore them altogether. If you give the client the idea that you are selling rugs in a Persian bazaar, your invoices will be treated in the same fashion. The far better approach is to . . . . §1:81

Pleadings & Motions for Temporary Relief

Caution: Temporary orders tend not to be temporary. Temporary orders are granted “without prejudice,” but are not easily set aside. Having heard evidence and ruled on a matter, judges often are reluctant to change their minds. This is particularly true with regard to custody orders. The longer a “temporary” custodial arrangement remains in place, the greater advantage afforded to the temporary custodian, especially if the children seem to be adjusting well to the “temporary” status quo. Make no mistake about it: temporary orders set the tone and lay the foundation for the ultimate resolution of the case at trial. For this reason, your work on temporary orders is some of the most important work you will do on behalf of your client during the entire divorce litigation. Treat it as such. §§2:170-171 If your client is forced to submit to a forensic custody evaluation, don’t let your client read the report. In my experience, most lay persons are ill-equipped emotionally to deal with the dissection of their soul and psyche that is standard operating procedure in these reports. Moreover, these reports typically are loaded with technical jargon and clinical findings that make them difficult to read and even harder to understand. I always give my clients the option of reading the actual report, but discourage them from doing so. A much better option is to . . . . §2:141

Discovery

Bank and credit card records are “gateway” documents. Read them carefully; don’t just glance at them. Bank and credit card records are fertile sources of information, and almost always lead to additional areas of inquiry. The ubiquitous ATM or “debit” transaction is a window into the parties’ spending habits and the family’s lifestyle, which is an issue in nearly every divorce, and a factor almost universally considered by trial judges in resolving the question of spousal support or alimony. Analysis of these records and review of cash withdrawals often leads to the discovery of wasteful spending, infidelity, or cash stored in shoeboxes, that otherwise would be lost to the marital estate. This is particularly true where . . . . §3:11 If your client is a small business owner, take a proactive stance and prepare a package of documents and information to submit to opposing counsel before a formal request for production is made. This package should include organizational documents, financial statements, and tax returns. If the business is well-run – i.e., if it is operated within the letter and intent of the law – your informal production may help you avoid a formal request altogether. If the business is not so well run, this approach forces your client to get organized and will make your job easier when the inevitable formal request for production comes. Moreover, your openness will pay dividends later. Judges tend to be skeptical of small business owners and irritated by discovery disputes; your voluntary production of records and information reduces that skepticism and eliminates that irritation. §3:21 Look for hidden income in family-owned business. Compensation can be hidden in any number of clever ways. If you suspect the small-business-owner-spouse is hiding compensation, look for the following red flags and raise these issues at deposition: repayment of shareholder loans, loans to shareholders, distributions of retained earnings . . . . §3:116 Avoid the knee-jerk reaction to schedule party depositions in every case. In most cases, party depositions are indispensable. In some cases, however, they are unnecessary. If custody/parental allocation is not contested, and the basic issue is not the identification and characterization of assets and debt, but the nature of their distribution and allocation, then there is no need to spend time and money on party depositions. Some practitioners take depositions as a prophylactic measure, analogous to a doctor ordering all manner of tests to protect himself from a malpractice claim. In my experience, however, if the facts are not really disputed, asking the other side to confirm what you already know is useless. §3:111

Dealing With Experts

Expose confirmatory bias in a custody evaluation. “Confirmatory bias” occurs when an expert starts with an opinion, and then searches for facts that support his opinion and ignores or discounts facts that do not. Often confirmatory bias will be detectable in a custody evaluation, where nearly every collateral source used by the expert to support his or her opinion is quoted saying only negative things about your client and only positive things about the other spouse. Rarely does a marital or parental relationship have such clear cut lines between “good” and “evil.” On these occasions, attack the expert by asking: “Didn’t anyone say anything positive about my client?” The expert will either have to divulge the facts he ignored or look silly in the eyes of the court. Either way, you win. §6:191 Be wary of offers to stipulate to your expert’s credentials. Do not pass up an opportunity to let your expert blow his own horn unless you are sure that the record is sufficient to enable you to argue in closing that your expert’s bona fides are greater than the opposing expert’s, and therefore, his testimony is more credible. §6:242

Mediation, Negotiation, Settlement

Take and retain control over a settlement conference. Use this mnemonic device to help you gain and keep control over a settlement conference: Can we agree on . . . ? Our position on that issue is . . . Now let’s discuss contested issues. Tell me your position; here’s ours. Reach for a compromise. Offer to concede, in exchange for concessions. List the agreements, point by point, to confirm agreement. §8:105 Always volunteer to draft the settlement documents. You will be surprised how many of your colleagues are happy to let you assume responsibility for the task. In fact, the more eager your colleague is to let you draft the documents, the less likely it is that he will respond to your draft with a laundry list of changes, comments, clarifications or additions. The simple reality is, once the settlement has been reached, most attorneys consider the case done, and are already mentally moving on to the next case. Don’t be one of those attorneys. §8:121

Preparing for Trial

Choose lay witnesses with care. Calling lay witnesses to testify at trial is always risky. The fewer you need to rely upon, and the less you need them to say, the better off you will be. When you have a choice between two witnesses who will say the same thing, choose the witness who is farther removed emotionally from the parties. This enhances the witness’ credibility because the witness has no apparent axe to grind. The lack of an emotional or family connection to the parties also tends to add gravitas to the testimony in the judge’s eyes. §9:161 Determine the order in which you will call witnesses. Many trial lawyers like to start out with an adverse examination of the opposing spouse. An effective alternative to this traditional approach is to lead with your strongest witnesses, regardless of that who that person is. For example, in a custody case you might begin with . . . . §9:162

Trial, Judgment and Beyond

Make a talking objection to give your witness a breather and allow her to regroup. Sometimes a talking objection is made to assist the witness, not the court. In that instance, the proper procedure for making a talking objection is: First, make your objection (in five words or less) and ask the court’s permission to argue your point. You will be called out on this by opposing counsel, if not by the court, so be prepared. Second, if (or when) the judge denies you permission to argue, say something to the effect of, “Your Honor, with all due respect, I think it is important for the court to consider the impact of . . . .” The time spent by opposing counsel in objecting to your objections, and by the court in admonishing you for your behavior, will allow your witness to take a deep breath. §10:54 Invoke the royal “We” in post-trial evaluations. In my experience, it is helpful to adopt a team approach in your trial wrap-up with the client. After all, the client was a big part of this process. He testified; he identified witnesses and evidence for you to use; he was an active part of the trial preparation process. When your client asks how things went, reinforce the team concept by invoking the royal “We.” For example, “We made some pretty good points with the court on. . .” or “Our presentation on custody went very well . . . .” This is particularly helpful when you have to convey bad news: “Well, we didn’t do as well as we had hoped . . . .” §11:03 Always schedule a post-judgment conference with your client. A post-judgment conference with your client is essential for two reasons. First, your engagement having ended upon entry of the judgment, this conference is your opportunity to sit down with the client and enter into a new agreement to cover your post-judgment services. Second, the post-judgment conference gives you an opportunity to determine when and how your client is going to pay for the services you have provided to date and for the services yet to be provided. §11:20