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“We’ve got to be judged by how we do in times of crisis.” — Johnnie Cochran
You are in the courtroom, lawyer by your side, waiting for your trial to begin. There at the next table is the stranger you once trusted with your heart and your future, and you wonder how it ever came to this. You are nervous, to say the least, because you know how much is at stake. Everything now depends on the opinion of a judge who can never understand the situation the way you do, but you are resolved to do your best.
The truth matters. The skill of your lawyer matters. Just as important, though, is you! Even the strongest case can be ruined by poor choices and distractions, and the eyes of the judge are on you (and your actions) at least as much as on your lawyer even if you are not the one on the stand at the time. Your family lawyer should prepare you in advance for what to expect and what to avoid, but meanwhile, here are some simple “don’ts” to think about both as you prepare for your trial, and while it is going on. If some of them seem painfully obvious, remember that no matter how good our intentions might be, we all do things under stress that we would never even consider during happier times.
1. Don’t coach your children.
I handled a child custody trial many years ago on behalf of the father. He was looking for an equally-shared custody arrangement for his three children, ages five, eight and nine. The case seemed tailor-made for a shared custody arrangement: the parents lived about five minutes’ drive apart, in the same school district, and the children’s school was between their homes. The children had strong relationships with each parent, even though the parents themselves did not get along well. After a day-long hearing, the last thing the judge decided to do was to speak to the two older children, one at a time and without their parents present. The judge quickly put each child at ease, and chatted with them about what they enjoyed doing with each of their parents. At the end of the discussion, the judge said to each child: “You know that you’re here today because your parents don’t agree about what’s best for you, and they have asked me to make the decision for them. If you could tell me how to decide, what would you tell me to do?” At that point in both interviews, an amazing thing happened. The children’s facial expressions changed, their voices became much more formal, and using almost exactly the same words they each said, “I want a 50/50 custody arrangement so I can spend equal time with each of my parents.” The judge was impressed… but not the way my client wanted, and you can be sure that the judge’s decision reflected that.
2. Don’t post compromising information to social media.
Whether you use Facebook, Myspace, Twitter, LiveJournal, or any other flavor of electronic forum, do you know — really know — everyone on your “friends” list? Can you possibly know everything about who is giving information to whom? Nothing you released to the whole world by posting it online can be treated as private or confidential when you get into the courtroom, no matter how intimately personal it might be. I once felt like I had struck gold when I found that my opposing party in a child custody case had posted to Myspace about her depression and feelings of helplessness, stating among other things, “I wish that I could forget all about life forever but I also know that that cannot happen so instead I settle for just forgetting about life for a little while with my good buddy Captain Morgan.” Another opposing party posted a blog entry describing her hatred of her co-parent, along with her steadfast insistence that whatever he might think to the contrary, these were her children. All of it became evidence.
3. Don’t leave threatening messages.
In another custody case, I represented a father whose two children were living mainly with him. The mother was suing him for more custody time, but on an especially angry day had left a series of voice mail messages for his new wife. Here is an actual excerpt from those messages:
Taking care of the [expletive], keep taking care of his kids. You are so stupid, [name], but you know what, trifling men like that, that’s the reason why they go to women like you… But I’m gonna tell you like this, sweetheart, you gonna reap everything you sow, every little dirty little trick, you and that [expletive], that [expletive] pulled baby, it’s coming back on you. And you know what? You better hope and pray don’t nothing happen to your child. Okay?… and you know what, [expletive], keep taking care of my kids, ‘cause you know what? I’m having a good time on you, dumb [expletive]… Record this. I don’t give a [expletive] what the [expletive] you record, okay?
Okay! Need I add that the judge chose not to give her what she was after?
Of course, not all voice mail messages are quite so blatantly obvious, but even a relatively mild one that is open to negative interpretation can get you into trouble, especially if it can be offered into evidence by the other side along with other evidence that supports their position. The client who left a message for his wife saying “One of these days, you’re going to get what’s coming to you” was talking about karma, not violence, but his wife got her Protection from Abuse order against him just the same. It mattered less what he actually meant in leaving the message, than what she reasonably believed he meant under the circumstances. Be careful, and remember the old adage: sometimes it is better to keep silent and be thought a fool, than it is to speak and remove all doubt.
4. Don’t leave the telephone off the hook after you leave a voice mail message.
It actually happens that people think they have hung up the telephone after leaving a voice mail message, only to find out later that everything they said afterward was also recorded! I handled a custody case featuring a recording of a fifteen-second voice mail message that was followed by a two minute conversation between the mother and her children. The mother was lecturing her children about what they should do to get out of scheduled custody time with their father! Also, beware of “pocket dialing.” You should always be good, of course, but here is another old adage to take to heart: if you can’t be good… be careful.
5. Don’t disrespect the court.
I attended a hearing where a man was being tried for non-payment of his child support obligation. When he claimed to be unable to pay the support award despite having a good job, the hearing officer did her best to be both fair and thorough. “What do you pay each month for rent? What is your monthly electric bill?” She went through his entire budget. When it appeared that the father’s basic expenses totaled no more than half his income, the hearing officer asked the obvious follow-up question: “If you have that much money left over, why aren’t you paying your support obligation?” “Because,” said the man, “this court has no right to tell me how to spend my money.” Wrong answer! It is never good news, when a hearing officer or a judge turns to the tipstaff and whispers, “Fetch the sheriff.” The man was led out of the courtroom in handcuffs.
In a similar vein, I know of an instance in which a slammed courtroom door bought a lawyer 24 hours of jail time. In each case the charge might have been “contempt of court,” but the real crime was foolishness. Right or wrong, judges and hearing officers take their jobs very seriously, and so do deputy sheriffs. Show respect.
6. Don’t make a fuss outside the courtroom.
I remember meeting in a judge’s chambers with my opposing counsel to try settling a particular divorce case before trial, when the judge paused to look at her computer monitor before saying to me, “I just got an email telling me that the sheriffs have escorted your client away from his wife, where he was apparently threatening her.” This is not how you want to impress a judge with the justice of your cause!
Other ways not to impress the judge (from experience) include screaming at your former mother-in-law just outside the courtroom, and assaulting your former spouse in the courthouse hallway. In fact, it is better overall to stay away from your opponent and avoid engagement when you are in court, lest one or the other of you — already on edge — yield to negative temptation and lose your temper.
7. Don’t make a fuss inside the courtroom, either.
One of the hardest things to endure during your trial is to quietly listen to your spouse or co-parent when it is his or her turn to speak to the court. You are “on camera,” even when you are not speaking, simply because you are within the judge’s field of view. Fight the temptation to say anything or otherwise attract the judge’s attention when it is not your turn to speak, no matter what is being said. Everyone gets a full say before the judge, including your opponent.
I represented a client at trial, one day, who just couldn’t bring herself to follow this advice. Her ex-husband spoke. She sighed heavily, putting a little voice into it. He spoke some more. She clicked her tongue loudly while looking shocked and outraged. She sighed some more. She clicked her tongue. The one thing she didn’t do was listen to me when I tried to get her to settle down, until the judge finally turned to her angrily and said, “Can the cheap theatrics!”
Annoying a judge is always bad medicine.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
1789 S. Braddock Avenue, Suite 570
Pittsburgh, PA 15218