October 10

Rules for Testifying

If you are ever involved in a lawsuit, a divorce, or subpoenaed as a witness in any kind of case, you will likely have to testify, either in open court or at deposition, or sometimes both.  This is a daunting experience for most people, and rightly so.  We have all seen courtroom dramas where the brilliant attorney bamboozles the hapless witness into confessing something they never intended to say.  Well, although real life is seldom as dramatic, the reality is often more serious and frightening for the witness than any movie.

I carefully prepare my clients for testimony.  In addition to walking them through my own questions, I sometimes role-play with them, where I pretend to be the opposing lawyer, and aggressively question them as if we were in court.  I listen carefully to their answers and observe their demeanor.  While I never suggest answers, I do discuss with them strategies for how to answer certain questions, and talk to them about how to improve their body language.  I look for “tells,” and discuss with them how to minimize them.

Testifying at a deposition or a court hearing is nothing like a regular conversation.  An offhanded comment can be the fulcrum upon which the entire case can tip.  It is imperative that anyone who testifies understands that, and is cognizant of everything that comes out of their mouths.  The following are the rules I ask my clients and witnesses to follow when they testify:

  • Tell the truth. I know that sounds obvious, but you would be amazed how many times otherwise honest people panic when they’re under oath and start telling small lies to stay in their comfort level.  Then, these small lies grow into larger ones, and inevitably, an experienced attorney will catch them.  Tell the truth even if you think it will hurt your case.  I will get a chance to rehabilitate you during re-direct, and give you a chance to explain your answer.
  • Think before you answer the question. Remember, this is not a regular conversation with an acquaintance or friend.  The lawyer asking you questions is an advocate for the other side.  Whether you like it or not, his job is to put you at a disadvantage relative to his client.  Your job is to avoid that if possible.  A clever lawyer will occasionally word a question in such a way that could lead you into a trap from which there is no escape if you aren’t listening carefully.  So think about what he is asking you before you answer him.  Do not assume halfway through the question that you know where the lawyer is going.  Give yourself a few seconds to absorb the actual meaning of the question before answering.
  • Answer in short, declarative sentences. There should be an internal clock running whenever you speak.  If you find yourself talking more than 20 or 30 seconds while answering a question, it’s time to shut it down.  Don’t ramble, and don’t explain your answers: just answer the question before you as succinctly as possible.  If the lawyer needs more information, she’ll ask for it.  Also, remember a court reporter is recording everything said.  The record must be as clear as possible.  Answering “uh-huh” or “uh-uh” may mean yes or no in regular conversation, but reading those responses in a transcript could lead to confusion as to what you actually meant.
  • Do not argue with counsel or take anything he says to you personally. Remember the other lawyer is doing his job.  He has no personal ax to grind with you, no matter how assertive he may be toward you.  Sadly, some lawyers are just nasty and seem to enjoy making people squirm.  However, even those who are just trying to do their job become aggressive if they think the situation calls for it.  I’ve turned up the heat a number of times on witnesses when I think for whatever reason it’s appropriate.  Many times witnesses will become more concerned about how steamed they are than in focusing on the subject at hand, drop their guard and say things they probably wish they hadn’t.  It’s one of the oldest tricks in the book, and it works like a charm.  Don’t let it happen to you.  If you feel yourself becoming irritated or angry with the other counsel, stop yourself, take a few breaths and try to relax.  If you’re really uptight, you can ask for a break.  You have an absolute right to take breaks during a deposition, and if you’re losing it at a hearing, you can ask the judge for a quick recess.  A judge may not grant your request, but you can buy yourself a few moments to compose yourself just by asking for the break.
  • Don’t be afraid to ask the attorney to clarify their questions. No one likes to feel stupid.  Most of us, including me, have faked our way through awkward situations at least once or twice by pretending we understood what was going on, when in reality we were clueless.  Don’t let your ego get the better of you when you’re testifying.  If you don’t understand something, ask about it, even if you think it will make you look dumb.  Looking dumb because you asked the other lawyer to clarify his question is a lot better than trying to fake your way through and make an answer that later exposes your true ignorance or makes you look like you’re lying.
  • During depositions, you can ask to consult with your attorney before answering a particular question. You cannot do that in a trial, however.  For instance, if you feel you need to ask your attorney a question about something before answering a deposition question, you can ask for a break; the other lawyer will allow the consultation.  You’re on your own at a court hearing, so be as prepared as you can before taking the stand.

If you follow these rules and have prepared for your testimony with your lawyer, there is no reason why you should not perform well, and avoid screaming, “You can’t handle the truth!” at some smart aleck lawyer trying to get your goat.

May 16

What’s the Difference Between Custody & Placement, and Why You Should Care.

By far the biggest area of litigation in divorce law involves fighting over the kids. This should not be surprising, as our children’s’ wellbeing tends to be vastly more important and emotional to most parents than who gets the riding lawnmower. The failsafe way to resolve a dispute over an asset is to sell it and divide the proceeds, while there is no default method of resolving disputes over child placement and custody. It’s much more complicated and difficult.

The first thing we have to do is understand the difference between “custody” and “placement.” The most commonly misunderstood word in all of divorce law is “custody.” Most people, including some lawyers, use it as an all-inclusive term. Some even use “custody” and “placement” interchangeably despite that they have two very different, although related, meanings.

“Custody,” is defined in Wisconsin as the right and responsibility for making major decisions affecting your children’s lives. (Wis. Stat. §767.001(2). Major decisions include such things as:

  1. Non-emergency medical care
  2. Consent to marry
  3. Permission to enter military service
  4. Permission to obtain a driver’s license
  5. Religious or spiritual training
  6. Schooling (home school, public, private or parochial school)

I’ll go into more detail on some of these things in future posts. For now, it’s important to note what is not included as a major decision. For example, what happens if Tommy trips and cuts his lip while he’s at Dad’s house for the weekend? Does Dad have to call Mom to discuss whether they should get stitches? No. If it’s an emergency, Dad can take Tommy to the emergency room and get his lip stitched up, although he should call Mom as soon as he can to let her know what’s happening.

What a parent feeds their child while the child is with them is also not a major decision. Every so often a client will call me to complain that their ex is feeding the kids foods of which the client disapproves. Unless the child has a food allergy or celiac disease or some other kind of condition that requires careful monitoring of their diet, a parent can feed them anything they want within reason, and there is nothing the other parent can do about it. I understand it can be frustrating for a parent who is careful to feed their kids a balanced diet when the other parent gives them pizza and hot dogs, but so far, at least, courts have been loathe to get into those battles.

It is important to keep in mind that legal custody is a two-edged sword. The right to make major decisions for your child is an important privilege. Many parents have no problem jumping at the opportunity to exercise their legal custody rights. However, the other edge of that sword is that once you accept the privilege of making the major decisions for your child, you also have the responsibility, or obligation, for making those decisions with the best interests of your children, and not your own interests, in mind. That is where the problems arise. I have seen too many cases where a parent crows loudly that they want the right to exercise legal custody type decisions over their children, but when it comes time for them to actually put that into action they either shrink from the obligation or make a decision that may be expedient for them but disastrous for their child. In extreme circumstances, parents who fail to meet their obligations in this regard can even lose their custody rights. It should be no surprise that in many such cases we learn that the parent was more intent on pursuing their own selfish agenda than in doing what was best for their children.

“Placement” refers to where the children physically are at any one time, and to the right to make routine, daily decisions for your children. Sometimes lawyers and judges inadvertently add to the confusion by using the terms “physical placement” or “physical custody.” “Placement,” as a legal concept, simply refers to where the children physically live. The parent with whom the children live most of the time has primary placement. That parent has the right and responsibility to make routine decisions regarding the child’s daily care. The other parent exercises secondary placement, which, many people commonly refer to as visitation, and can make the same routine decisions during their time with the kids. Routine, daily decisions about a child’s diet, clothing, grooming, etc., are not custodial decisions. Disagreements between parents over these things take an inordinate amount of time to sort out and often distract parents from the real issues.

In most cases, the court will grant custody rights jointly to the parents. This is called “joint legal custody.” Courts will do this unless there is a very good reason to deny one of the parents those rights. For example, if a parent has a significant alcohol or drug abuse issue, has engaged in abuse of the other parent or the child, or if there is evidence of interspousal battery, a court could decide that the other parent should have sole legal custody rights. (Wis. Stat. §767.41(5) (am)). In addition, a court will award custody rights to one parent if:
• The parents agree, or
• If the court finds that one of the parents is incapable of performing their parental duties and obligations or does not want to do so, or
• That there is a condition that would substantially interfere with the parents exercising joint legal custody, or
• The parents are unable to cooperate in future decision making for their child (Wis. Stat. §767.41(2)(b)).

The law has evolved regarding the allocation of placement between parents. Wisconsin law no longer favors mothers over fathers: that notion is as antiquated as old Leave It to Beaver reruns. The current law requires the court to fashion a placement schedule “that maximizes the amount of time the child may spend with each parent” while taking into account logistical issues and geographical separation between the parents (Wis. Stat. §767.41(4)(a) 2). Some courts have interpreted this to mean that we start with the assumption that the parents will share equal placement. I disagree with that interpretation, because the statute does not require equal placement, but maximum placement with each parent per the unique circumstances of that family.

The court decides what it believes is in the best interests of the children. Judges do not make their decision in a vacuum, however. In contested cases, they employ a Guardian ad Litem, who is an attorney who represents the best interests of the children, to investigate the family dynamic and make a recommendation to the Court. I’ll write about that in more detail in a future post. Other experts and sources, such as child psychologists, teachers, clergy, extended family members and family friends, can be brought in to add information and give their opinion. Of course, both parents will have an opportunity to present their cases to the court, so they can present whatever they think is relevant and appropriate. The court listens to everyone, considers the recommendations of the parties and the Guardian ad Litem, and in the end, renders the best decision they can.

In my experience, the majority of these disputes ultimately settle without bringing the case before the judge. As a mentor of mine once said, the worst agreement is better than the best order. I think what he meant by that is that if the parents can come together and reach an agreement of their own making, even if the agreement is flawed, there is a far better probability that things will work out better for them than if they fight it out in court and have to live with a judge’s decision that may disappoint or anger one or both of them. I prepare my cases as if I am going to trial even though I know that most of the time we will settle them. That way, I know that we have covered our bases and made the best presentation possible for our clients. Once most people realize they have little to gain in a tug of war with their ex, with the kids as the rope, they come to their senses and settle their differences. At least, most reasonable people do that. There are always those people who, for whatever reason, are convinced that they must have “their day in court.” That’s their right, even if they’re wrong.

March 4

Getting organized is key to a successful divorce

The beginning of a divorce case is usually the scariest part of the whole process. The process is so daunting to some that they actually choose to remain in an unhappy marriage because they are more worried about the time, effort, and expense of getting divorced. I get it; it is scary, but I can also tell you that you can reduce or even eliminate the fear by getting yourself organized and approaching the process step by step. In this post, I’ll describe a few initial things that you should do that will help you later. In future posts, I’ll go into detail on the other steps you should consider taking to help make your case run as smoothly as possible.

So where do you start? First, you should understand that divorces are essentially financial transactions. Think of it as the dissolution of a small company rather than the rendering of a marriage. Mr. and Mrs. Smith are going out of business. Not all divorce cases involve the custody and placement of minor children. However, every divorce case does involve the division and allocation of the parties’ financial assets and obligations.

The first thing you should do is look around, literally and figuratively. What do you own, and how do you own it? Either buy a ledger book from your local office supply store or create a spreadsheet on your computer (encrypt it so that prying eyes won’t discover it). List everything you can think of, including real estate, bank accounts, investment accounts, collectibles, antiques, jewelry, art, automobiles, boats, investment property, business property, retirement accounts, insurance policies, etc. Walk around your house, making entries in your ledger book as you go. Don’t forget furniture, tools, sporting goods, and all that stuff in your garage, closets, basement, and attic, known generally as personal property. You’ll be surprised how much you really own.

Take pictures as you list your property in the ledger or spreadsheet. Or, if your smart phone or tablet has the capability, video everything as you walk through the house. This accomplishes two things: first, it fixes in time the quality of your property. The whole process of getting divorced can take several months, even years in extreme cases. Suppose your ex destroys that couch in the rec room then claims it’s worthless? A picture showing its condition before a vengeful ex used it as a trampoline will help you convince the judge that your valuation is correct. Second, pictures add meaning to your entries. How else is the court to know that “picture over fireplace” is your prized lithograph of dogs playing poker?

List all the assets you can think of in the left column. In the next column, indicate how that asset is held. For instance, if you own your home, do you own it as tenants in common (each of you owns 50% of the property with no right of survivorship) or as joint tenants (each of you owns 50% of the property with right of survivorship)? If Aunt Millie left a valuable antique set of china to you, indicate that you own the property individually because of the inheritance.

In the next column enter the market value of the asset. If you don’t know the exact value, enter your best reasonable estimate. It’s better to underestimate the value of your assets: if you think your house is worth between $100,000.00 and $110,000.00, use the $100,000.00 number. When estimating the value of all that stuff from the basement, garage, etc., don’t use replacement value, or what you paid for it when new. I always tell people to estimate what they think people would pay if these items were auctioned off. That’s the value most property appraisers will use when valuing the marital estate once the divorce is pending. You might as well use a similar process now.

There are a few things you should keep in mind while making your list. Most states do not include property that you inherit or that someone gave to you. For instance, if Aunt Millie left her antique cuckoo clock to you, that clock is your individual property. Your soon to be ex has no claim on that clock—it’s yours!

The same basic provision applies to gifts as well, but there are some exceptions. I like to call this issue the Custody Fight Over the Engagement Ring. Some people believe that when the marriage ends, they have the right to retrieve, or at least divide, any gifts they gave their spouse. I have seen cases where the parties agree on dividing everything else, affecting several hundred thousand dollars worth of assets, but fight like starving hyenas over carrion when it comes to who gets the engagement ring. In most states, the ring not only stays with the wife, it is counted as her individual property, and is not considered part of the divisible marital estate. Just so the men reading this don’t feel too badly about this, remember that set of custom-made golf clubs she gave you are yours as well.

Philosophically I think that is the correct solution. After listening to hundreds of divorce clients, I’ve concluded that the best way to put this issue to rest is to be generous with your ex. You’re getting out of the relationship, you’re moving on with your life. Why make it any more difficult than it already is? I’m not saying you should just roll over and let your ex have whatever they want, especially if they gave that item to you in the first place.