So You Want to Be Your Own Lawyer

Read Re N: How not to write a skeleton from Family Lore. Short post with John Bolch providing a commentary that ought to clarify how to write something going before a judge.

Yes, it is English but that makes no difference at all. The legal system is a formal system - regardless of all the Judge Judys on television - there are rules to follow. Some are written and some are not -I would call the rule violated in the Family Lore post as an unwritten one but inherent in any formal setting.

Yes, we lawyers do relax a bit but even then it is within the framework of a system. We know where to tread and how to tread to avoid the bombs. After all, that is one of the multitude of things we do for our clients.

Just Because There is a Law

Everyone should read Lesson Learned From Case of Child Abducted to Brazil and Retained for Five Years: An International Convention is Only As Good as Its Enforcement Mechanism from Florida Divorce * Child Custody * Domestic Violence Law Lawyer for more than its obvious topic:

Yet, in a recent case there, the Indian Supreme Court ruled that an Indian Wife who had been permanently residing in the UK with her Husband and their child, must return to the UK with their child for custody proceedings there.

Ultimately, the adverse impact of Brazil’s conduct on future trade with the US may have propelled Brazil to finally send the boy home.

Now, a Congressman from that boy’s home state, New Jersey, has introduced legislation intended to promote enforcement of the Hague Convention by appointing an official to monitor compliance and to empower the government to impose sanctions for noncompliance.

Enforcement falls down for two reasons: 1) the parties think someone else will enforce their court order; or 2) the court itself does not do as it should. The Brazil case falls in the second category.

Without a person taking action a court order remains only paper.

When one of our courts go off into the weeds, the remedy is an appeal.

A statute is only as good as its enforcement mechanism.

Dressing for Court

Ohio Family Law Blog has a spot on post with How To Dress For Court – Do’s And Don’ts. He has some interesting specific suggestions that I will bet are based on experience.

The proper and/or appropriate attire for either party changes dramatically if the parties are facing a “contested” divorce and/or custody hearing, wherein each would be on the witness stand for protracted periods of time and, wherein, their appearances would certainly be scrutinized by the Court.

FOR MEN: Same as above; however, a sports coat or suit could be worn but would not be considered mandatory. If the Husband/Father is seeking custody of his child or children, he would want to be dressed conservatively…nothing too flashy, nothing too out-of-the ordinary. For example, if a young Husband is seeking custody of his child/children, he could receive “negative” points if he appeared in Court in non-traditional attire such as Black Gothic Style clothing or wildly colored hair. Remember, that most Judges are older conservative individuals. If the Husband/Father has an abundance of tattoos, I would definitely suggest that he consider wearing a long-sleeved shirt to “cover” the tattoos! Also, it would be advisable for the client to remove evidence of body piercings….ears, lips, nose, eyebrows, etc.

FOR WOMEN: The main point to remember……..you do not want to appear in Court as Sharon Stone appeared in “Basic Instinct”! This is not the time to appear to be “hot” or “sexy” especially if you are seeking custody of your child or children. You want to appear stable, sensible, warm and loving. Soft colors are better than bright and vibrant colors. Longer skirt lengths are better than short skirt lengths! You do not want to wear anything that would be considered “too short, too skimpy, too wild, too bold, or too sexy”.

I advise my clients to dress appropriately for Court. Dress as you would for church or an important job interview. If you are in the armed services, wearing your military attire is a very safe choice. If you look sloppy or inappropriate, the Judge or Magistrate may believe that you are showing or displaying a lack of respect for the Court. You have but one opportunity to create that “first impression”! So, consider these “do’s and don’ts” in advance of your Court date and make a good impression with the Judge.

I make a slightly different suggestion. Dress like you are going on a date to a very nice restaurant - not a place for a suit and tie. With the point being that the client/witness should feel comfortable in their clothes. Something I learned a long time ago when I still did criminal defense work and jury trials. The client was clearly not comfortable in his clothes and it was attracting the attention of the jury.

Kysa M. Crusco over at the New Hampshire Family Law Blog also picked up on this Mr. Mues' post. She makes a similar point to what to mine above:

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

Oh, and piercings...good idea to leave them at home.

Family Law Discovery: Depositions - Part 2

Having let a lot of time pass since I wrote Family Law Discovery: Depositions, I thought it time to finish off on depositions.  For a refresher on the discovery process go here.

Depositions remain generally rare and have been absolutely non-existent for family law cases.  I did one deposition about 1996 that was videotaped and I am not as convinced as Trial Practice Tips Weblog that videotaping a deposition is a trend.  That said, give a look at its post, Videotaped Depositions Become More Common: A Developing Trend?. If I had to, I think video would be the way to go.


Custody Coach's Deposition During Custody Battle also makes it sound as if depositions were very common.

It must be a factor of geography and economics.

More About Texting and Social Media, and Facebook Subpoenas

Dallas Divorce Law Blog uses Tiger Woods a springboard in A Divorce Lawyer's Take on Tiger's Texting Troubles

While it may not make the late night talk shows or celebrity gossip sites, texting frequently leads to big trouble for people who are not Tiger Woods. A text message with a paramour can reveal an extramarital affair to the unsuspecting spouse who accidently comes across it, or confirm the suspicions of a suspecting spouse who looks through their cheating spouse’s phone. After a divorce is filed, text messages provide powerful and often embarrassing evidence of infidelity by the cheating spouse during the marriage.

Yes, that means you. My clients bringing me text messages from spouses, former spouses, or former significant others keeps increasing each month. One client has a video on his phone of the mother behaving very badly while delivering the child to her for visitation. (Lucky for him he did this, as she called the police and the video probably saved him a trip to jail).

For more reading, go over to JD Supra and read Texting: The New Way to Get Caught Cheating.

Lawyerist has an interesting post in Update: Subpoena Facebook Information. Do not get too excited about this. For those with public pages, it does not keep an opposing party from downloading your whole page and using that for evidence.

Hiring A Family Law Attorney and The Art of War 2

Finishing what I started yesterday with Hiring A Family Law Attorney and The Art of War 1.

I want to point out what others have written quite well about on this subject. New Jersey Divorce & Family Law's In Family Law Representation, You Get What You Pay For… lead me to family law - family attorneys from LawyersandSettlements.com:

The bottom line is the fairness that so often escapes a family law case that is mishandled, at least by one of the sides, due to a lack of proper representation. Of course you want to be fair, and you like to think that the fairness factor will guide the process. But that is not always the case, especially when there is anger involved.

Experts suggest that if your relationship looks as though it is coming apart and you're considering divorce, the best couple of hundred bucks you'll ever spend is by sitting down with a reputable family law firm for a consultation. In an hour, their family attorneys can give you a pretty good idea of what you might be in for, what the dynamic, the payout and the cost, the likely custody arrangement, and in a nutshell what kind of life you're going to have at the end of it all. It may not be pretty, and after hearing the hard facts you might think twice about dissolving your relationship, and try to patch it up instead.

However if you feel you have to proceed, or you have an inkling that your spouse is—and it isn't possible to work it out amicably, then for heaven's sake get yourself a lawyer, and get a good one.

California Divorce and Family Law's has Picking the right divorce lawyer can help make the split less painful ten items to look for in a divorce lawyer, and what I would call an overarching theme:

Having the right attorney can alleviate some of the emotional sting and reduce some of the stress which are integral parts of the divorce process. Conversely, having the wrong kind of legal representation, can make an already painful experience significantly worse for you and for your loved ones.

Mississippi Family Law Mediation and Counseling Blog's Before you hire an attorney --- What you need to know has a similar list. About getting the most out of your lawyer, give my Following up on How to Hire the Right Divorce Attorney a read.

It is my goal that I handle every case in as professional manner as possible. I think that means counseling and fighting are not mutually incompatible in representing my client's best interests. I think Family Lawyer – Choosing a Competent Family Lawyer! from Northeastern Law expands on this point very well:

Since cases of child custody are very sensitive, you must be vigilant to choose an experienced and competent child custody lawyer. A good lawyer who can handle the issue carefully and also be able to negotiate skillfully should be your priority. If your case is straight, you can get look for a family lawyer who would charge a low fee but if your case is complicated and requires intricate planning and strong presentation make sure you choose a well-known and experienced lawyer

Know your goals, communicate those goals to your lawyer, and understand why not all goals are achievable. (Getting the other side's head on a pike may be a goal but not an achievable one.) Then decide if there is a good fit between you and the lawyer's strategy.

Hiring A Family Law Attorney and The Art of War 1

DIVORCE LAW INDIANA published a post, Hiring a divorce lawyer: Rambo v. Mother Theresa,that I generally agree with but also with which I have some serious quibbles about. In particular, I have a problem with this paragraph and particularly one word in this paragraph:

In a study of attorneys, social psychologist Kennth Kressel found that divorce attorneys seem to fall primarily within two broad groups. He labled them the "advocates" and the "counselors". Some call these two approaches as the "Rambo" and the "Mother Theresa" approaches to divorce law.

The word troubling me is "primarily". My contracts professor had a category for these sort of words: weasel words. Since most of the original article depends on this dichotomy between litigator and counselor, I think this needs discussing as if "primarily" were not in that paragraph.

I think the lawyer must be adaptable to the type of case and client they have in front of them. In some cases litigating willy-nilly makes mountains out of molehills. I think everyone will agree that is wasteful. If you think you are better served by such a lawyer, then ask how this benefits you because there will be times (many times) during the course of a contested case that you will also need a counselor.

I think my New Albany colleagues recognize this point also:

Your personality and your situation will dicate the type of divorce attorney you feel comfortable hiring. Remember that about 50 percent in a recent study were unhappy with their attorneys. Basically the best divorce attorney is one who has a good deal of experience in contested divorces and who has knowledge of the court rules. You should avoid an attorney who never goes to court or one who wants to litigate everything without encouraging good-faith negotiations.

I came to the viewpoint I have from reading Sun Tzu's Art of War. I have written along these lines before with Divorce, Strategy and Sun Tzu. I also wrote on this in Thoughts on Strategy, Preventive Law, Rambo Lawyers and Sun Tzu that can be found on my Indiana Civl & Business Law Blog.

Others invoked The Art of War when discussing litigation. Deception and Settlement: The Application of Sun Tzu's Ancient Strategies of War to the Law which makes this point:

Sun Tzu advises against this purposeless destruction. Each of the steps taken in a lawsuit should have a goal of encouraging settlement, albeit on your terms. This goal should be at the forefront whenever discovery is taken, motions are filed, and meetings with the opposition are held. This may not assure that fees and costs will be limited. Rather, it means that when money must be spent, it should be to encourage resolution of the matter. If it does not, then one should consider choosing a more effective course.

Although not written from the standpoint of a family law case, I think the principles are easily transferred from a lawsuit to a family law case. With the point being that strategy needs to meet the needs of the case and of the client for a successful case. I read The importance of an attorney in child custody litigation from Divorce Indiana Bog and Maryland Divorce Legal Crier's Every Dog that Barks as implying this same point.

Family law does not lend itself well to total war. Sun Tzu did not favor total war - it ruined both sides of the conflict. I wonder if most people when thinking of litigation as war do not think of the conflict as total war. If so, I suggest following the link to total war and then look at your bank account and then consider what life will be like after the case is over. Here is an image to think of when thinking about total war. In cases with children, the effects of a total war stragety will go on for a very, very long time.

There needs a time for counseling and a time for fighting. I think counsel needs the capacity to do both.

I will finish this topic off tomorrow. Please come back for the finish.

Reading Around: Social Security FAQ, Sperm Donors Paying Child, More Social Networking Troubles

Another post of selected articles that bear some looking at but not quite needing comment from me.

What I would call a Social Security FAQ from The Ohio Law Blog:  Commonly asked Social Security Disability / SSI questions.

Gay Dads, Surrogacy and Portable Parenthood discusses a recent Pennsylvania case imposing a child support obligation on a sperm donor.

Gabriel Cheong published Same-Sex Marriage Statistics and it packs a punch for all of its brevity. I think most lawyers see this as an issue of fairness being denied to a select group.  Most of the political talk on the subject miss these points:  1) the state court decisions are based on state constitution provisions incorporating the natural rights of the Declaration of Independence, 2) by denying these rights we are saying that we can deny other natural rights, and 3) the granting of rights cannot constitutionally detract from our religious rights.  Good job, Mr. Cheong.

A bit more on the McCourt divorce from Family Law Guy in his McCourts: Minding (And Dividing) The Family Store. I noted this case here.  Still glad Indiana is not a community property state but it made me think of what might happen to the Yankees if New York were a community property state.  The Red Sox might want to think about this....

If you think your divorce is/was bad, I offer Billion Dollar Divorce as an antidote.

Maryland Father's Rights Blog nails why to be very discreet with social networking sites with his Social Networking and Litigation:

But if I do have to try a case, evidence is the thing that either wins, or loses, my case. It’s true in any litigation, whether it’s a divorce case with adultery allegations, or complicated financial issues....

We may know things - call them facts.  But if we cannot get those facts before the court, then they are not evidence.  Photos of partying the night away posted to a MySpace page open to the public becomes evidence rather easily.  Related to this:  Ed Poll's Revenge and Social Media.

Finally,  a few words about bankruptcy and divorce from Upstate Family Law Blog.  Check out Bankruptcy During Divorce.

What Other Indiana Family Law Blogs Are Saying

I have been writing about many things the past few months and been writing about others are writing elsewhere but realized this past week that I have not truly noted what other Indiana family law blogs are writing about. I think all of us have a slightly different slant (I sometime call my cantankerously pedantic)  That is my mea culpa and here is what I have for you.

William Wilson of South Bend, Indiana writes Indiana Family Law.  He may have even started his blog before me and is consistent on his emphasis on collaborative family law.  Here reminded us back in October that the new child support guidelines take effect next month - Indiana Child Support Guidelines changing.  Here are some other posts very much worth reading:

• Why can’t my child decide which parent he wants to live with?
• What is it like to go to court? Looking for stories  There is a good point here for non-lawyers and lawyers in this one.  A point I may be just as guilty of anyone else - remembering that non-lawyers have no idea what court will be like. (And he is looking for comments, if you got stories  then let him know!)
• How to survive your divorce: a free ebook.  Thinking I want to see this, too.

Ryan Cassman publishes All Things Family Law - Indiana Divorce & Family Law Blog and practices with Hollingsworth & Zivitz, P.C..  He has been kind enough to point out some things on here but I still like him and his blog!  Well, enough to keep a close eye on what he is doing.  Here are some of the posts I have not noted and like:

• Joint Legal Custody - Religious Services and Parenting Time
• Retirement and Divorce - Are Paid Health Insurance Premiums An Asset? (He has been much better than I have been lately of writing up new appellate cases.
• Indiana Child Support Guidelines - High Earners Pay More, Low Earners Pay Less.  Pay attention to this one - another article about our new child support guidelines - these will be a major disruption from what I have heard and what I have been able to get read.

Down in New Albany, the firm  Waters Tyler Scott Hofmann & Doane, LLC publish DIVORCE LAW INDIANA.

• Indiana Family Law Case Update: refusal to sign joint tax return & taking kids to church during visitation.  Another reminder that I have been remiss in not reporting on new Indiana cases.
• Split custody of siblings - not a subject I have seen discussed anywhere else.
• Taking your child holiday shopping for your ex-spouse.  Again, something I have not seen written about.
  

About Settling Cases: Obstacles

While I would not use the kind of lanugague used below to describe the same problems, give

Achieving settlement, resolution through understanding psychological barriers from Your ABA: November 2009 a few minutes of your time.

According to Kathie, there are two overarching reasons why cases fail to settle: structural and institutional. Circumstances beyond either party’s control that subsequently prevent settlement are considered structural. On the other hand, institutional barriers are mental obstacles to agreement held by any or all the involved parties. Single-minded individuals whose egos overtake rational thinking are prone to creating this type of barrier.

While lawyers obviously cannot address structural barriers, institutional ones are not impossible for them to overcome.

***

Some other types of institutional barriers include:

* Reactive devaluation – Believing that when something is unavailable, it is more valuable;
* Construal bias – Perceiving one’s beliefs as objective reality, thus negating the beliefs of others;
* Equity seeking – Viewing one’s side as just and the opponent’s side as wrong, rather than seeing conflict as a result of mutual disagreement.

As with other barriers, resolutions include helping clients to understand and acknowledge their bias, asking them outright to discuss the weaknesses in their case, and finally, asking them to play the role of judge, as an objective party, are very effective. In doing so, clients concentrate on the weak aspects of their argument that may undermine their position rather than emphasize it.

Do you resemble the type that creates a barrier to a settlement? 

Maybe this will also help you understand how lawyers approach a settlement.  At least it may explain my method:  I do not think it is my job to say take or not a settlement but to give my client the pros and cons of an offer so that they can make a decision.  I think my clients understand very well when I say that they are getting a better than what a court could give them.

Reading Around: Divorce Stats, Texting, Foreign Laws on Cohabitation

Think before you text, read She may walk in beauty, like the night…but don’t text it from Family Law Prof for more on why not.

45% chance of a first marriage ending in divorce - so I learned from Domestic Diversions' What’s my chances of getting a divorce? Statistical factors associated with divorce.

Since I cannot figure out how to categorize Online Assessment Tools – Do You Think You Might Have a Problem? from The Ohio Law Blog, I am putting it here. Check it out.

From Family Law Prof blog a notice about new cohabitation legislation: Australia Passes New Legislation affecting De Facto Couples.

Insight into lawyering - family law division

Marilyn Stowe takes an issue that I find devilishly hard to write about and brings the point home with great clarity in her Fleetwood Mac and a divorce lawyer’s Rumours.

Many clients begin their meetings with me, assuming that what I am about to hear is new. It isn’t. I’ve already heard the account of the breakdown of their marriage or relationship, over and over again. Different faces, different people – but fundamentally the same story. What is interesting is that when a relationship does break down, the parties don’t always have the same tale to tell. One will blame the other. One may blame a third party. The other may say it wasn’t the third party. Perhaps he or she will insist that the relationship has simply run its course.

***

For me, as a lawyer who listens to both sides of such stories daily, these songs remain as relevant today as they were thirty years ago. They remind all of us that we are human and fallible.

Here are two different beliefs, genuinely held, as to what has gone wrong. Probably there is a whole lot more that could be said, about why this relationship ended as it did.

I would add only two thoughts.

My job as a lawyer is to evaluate the client's story and, as pointed out above, there are a limited number of stories.  The story needs evaluation against the law.  Then the issue becomes how best to advocate that story.

I would also point out - as I seem to be doing quite often to clients nowadays - that this also applies to judges.  I hear a lot of stories and so do judges.  I had a support hearing this month where father was telling a quite outrageous story.  My client boiled with worry at what she was hearing.  I think she - like many others - do not understand the judge's job is to judge - take both stories and weigh them.  In this case, the judge ordered father to do what he was supposed to do by January 15 or go to jail.  The clients worries were for nothing.  (Tip: listen to watch a witness says but watch the judge closely).

Being a Witness

Welcome to the hardest job most people will experience in the legal system - being a witness.

From twenty-two years of conversations, I think it is safe to assume that most people do not realize that a witness' testimony is evidence.  The Indiana Rules of Evidence devotes a whole article to witnesses.  Yes, words are just as much evidence as pieces of paper.

The following are some areticle I ran across recently about witnesses and testifying.  Good points in all of them:

Three Mistakes Witnesses Make - ABA Book Briefs Blog

There are lots of seemingly good excuses for a potential witness not to bother with a lawyer. Consider the following:

1. "I'll Just Tell My Story"
Nonsense. You are walking into a strange and unnatural environment, with a great deal at stake, where everyone else is experienced, comfortable, and prepared. You cannot adequately prepare for this challenge without professional help. Period.

2. "It's Too Expensive"
True. Both in time and money. It takes a lot of time, and legal fees today are extraordinarily high. If the witness has to pay a lawyer (I say "if" because an employer or other party may pay the fees; be sure to ask), it adds a new dimension of pain to an already burdensome experience. However, the real issue with cost is always relative. What's the alternative? Here, saving time and money up front by being a witness without counsel or without preparation can cost dearly later in time, money, and heartache.

3. "I Didn't Do Anything Wrong"
This is the toughest and biggest misperception. Most people think that you only need a lawyer if you've done something wrong, particularly in the witness environment. Counsel has to understand this misperception, then help the witness to get around it.

There are times when a lawyer serves as a "defender" of a client who has done something "wrong." However, the reach of investigations, litigation, and other inquiries today is incredibly broad, and definitions of what is wrong vary just as widely. A client needs help in navigating the mess. Given the harm that can come to people as a result of these inquiries, a witness is foolish to enter the world alone.

Preventive Family Law for Nevada: What Not To Do When Testifying in Court!

The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can't stop court to go get them.

2. "Everybody knows that ______ is true." That's not acceptable proof. 'Everybody' needs to testify.

3. "I got it off the Internet, so I know it's right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc., if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer's not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They're all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn't really do what they said I did." Sorry, but you can't argue that for a guilty plea. If you were convicted after a trial, you could say you didn't do it and that the jury was wrong, but that still won't get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention. 99.9% of the time, the answer is "Yes". I want to find out what you're scared of.

Bottom line: You lose credibility and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them.

Leading Geeks: On Credibility

As a geek leader, I'd like to say that there's an easy solution to the schism problem, but there's not. Especially if you're a new geek in the company, people won't trust you (since personal credibility must be built). Step on a few land mines (or have a few old pieces of equipment fail), and you have to start from zero again and again. The only way to build credibility is to maintain personal consistency and do your very best to fix the systems or software to eventually be able to maintain technical credibility. It's frustrating, but necessary.

More on Automatically Stopping Transfers of Property

Florida Divorce * Child Custody * Domestic Violence Law Lawyer also picked up on the news I reported in Divorce and Restraining Orders - an Idea from New York. I am adding this to show how Florida handles this issue(which is the same as Indiana).  Here are the highlights from Look, Florida (and Other States): New York Legislates Automatic Protection of Marital Assets During Divorce Case

In Florida, things currently work exactly the opposite way. (Except in certain counties that automatically impose a restraint along the lines of the New York statute.)

In most of Florida (including Broward and Palm Beach counties) today, if either spouse wants the court to restrain the other from transferring marital assets, the spouse seeking the restraint must go to court – to try to persuade the court to do it.

The New York legislation saves both spouses litigation expenses, unclogs the courts a bit and preserves the marital assets (or estate) from the get-go of the divorce case.

Reasons for Mediation Failure

For those considering mediation consider 4 Reasons Why Mediations Don't Work:

...Sounds odd, well it isn't. Here are four reasons that can cause your mediation to fail.

1. Timing - Rushing into a mediation is not beneficial for either party or any of the parties (parties if more than two parties) and can cause the mediation to fail. Most mediation professionals agree that it is best to mediation prior to litigation or arbitration, but that could be years between the event and the actually litigation. In some few cases, mediation should occur very soon after the event that causes the disagreement, such as in elder mediation cases . Understanding that timing is important in scheduling a mediation or offering mediation as an alternative will increase the settlement rate.

2. Location - Choosing the wrong location for a mediation can cause your mediation not to work, especially if the location is hosted at a non-neutral site (such as the office of one of the parties).

3. Frame of Mind - If you are attending a mediation and if you know it won't work, then it won't. You must be willing for the process to work.

4. Mediator - Choosing the wrong mediator can cause the mediation to fail. Not all mediators should mediate all cases. Mediators specialize in certain types of cases for a reason, they have a background that can help a mediation succeed. Choose a mediator that is well versed in your case.

Service on a Social Media Site?

I suggest giving a serious look at DLA Piper's  Facebook - The Future of Service of Process?. I cannot say how well the Australian case will fly in Indiana but I feel very confident that Indiana needs to give a serious look at this looming (yes, looming) possiblity.

Current US Jurisprudence

While there is no record yet of courts in the US allowing formal service via Facebook, prosecutors are commonly permitted to use photographs obtained from social networking websites as evidence in court for a variety of proceedings—from divorce to sexual harassment to drunk driving to murder cases.7

Federal Rule of Civil Procedure 4(e)(2)(B) allows an individual located within a US judicial district to be served by leaving documents at an “individual’s dwelling or usual place of abode…” While the terms “dwelling or usual place of abode” are understood to mean an individual’s physical home, it is not unrealistic to predict that this language could one day be expanded by a court to include a person’s usual place of virtual abode.

Furthermore, Federal Rules of Civil Procedure 4(f)(2) and 4(f)(3) allow an individual located in a foreign country to be served, in the absence of internationally agreed means, “by a method that is reasonably calculated to give notice…as prescribed by the foreign country’s law for service” or “by other means not prohibited by international agreement, as the court orders.” This language clearly allows room for the service of process via social networking websites on individuals who are outside of the US. It certainly allows service on individuals located in Australia and New Zealand, if a reasonable case can be made.

*** 

Implications in the US

The materials and photographs that become a part of an individual’s on-line profile are already being used as admissible evidence in US courts.8 Will the ability to serve process via the virtual world be the next milestone? The implications of this possibility are considerable. Many Facebook users joined the website for fun and amusement or to more easily keep in touch with family and friends. Their membership, however, may also make them more accessible to the legal system. Professional process servers may soon no longer be required to play cat-and-mouse games in the physical world in order to personally serve individuals.

Using Social Media for Evidence

Just another way that Facebook, MySpace, Twitter and the like can come back and bite you in the posterior comes from MLive.com's A growing trend: Social media as legal evidence 

The business world has also discovered social networking sites, which can be a powerful marketing tool. They can also become a receptacle for complaints about bad customer service or employee comments about the company -- two good reasons to make managing your online reputation a priority.

Business owners are struggling with how to come to terms with all this.

Estrada notes that when a business embraces social media as a marketing tool, some common issues crop up, including the loss of employee productivity and the important distinction of whether an employee is representing the company or themselves when they use social networking sites at work.

"That's where having a documented policy, a clear and concise policy that outlines acceptable use of social media tools, is really important," Estrada said.

Companies use social networking sites as part of the hiring process, including asking job candidates to log in to their Facebook account during an interview.

Estrada says employers are looking for information about a person's character, their social habits or anything that speaks to a person's integrity.

"Don't put anything on a social network page, blog, Web site or in an e-mail," he said, "that you don't want printed on the front page of the newspaper."

What applies to the business world applies to family law cases.

Bringing this back home with Supreme Court considers MySpace statement from The Indiana Lawyer:

In Ian J. Clark v. State of Indiana , No. 43S00-0810-CR-575, the high court found Ian Clark's statements made on a MySpace page were admissible as evidence.

In the opinion, Chief Justice Randall T. Shepard included the description that Clark made about himself on the Web site, which the prosecutor read for the court over the defense's objection:

"'Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B... sh.... And with all my obstacles, why the f... can't you.'"

Clark had also stated to a detective while waiting in an exam room with police, "I will f...ing kick your ass. I will send the Hell's Angels to kill you. F... it. It's only a C felony. I can beat this."

"Clark's MySpace declarations shared much with his boast to the police after he killed Samantha," Chief Justice Shepard wrote.

Clark argued that because prior criminal acts should not be admissible in court, the MySpace statement would fit into that category.

However, Chief Justice Shepard wrote, "Clark's posting contained only statements about himself and in reference to himself. (Tr. at 465-469.) Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark's words and not his deeds that were at issue, so Rule 404(b) does not apply."

For the Lawyers - Tool for Citing to Electronic Materials

From UPDATES IN MICHIGAN FAMILY LAW: Jeanne's Toolbox - Citing to electronic materials

Candace Elliott Person*, author of "Citation of Legal and Non-Legal Electronic Database Information", states:
"To cite files available for viewing/downloading via the World Wide Web, give the author's name (if known), the full title of the work in quotation marks, the title of the complete work if applicable in italics, the full http address, and the date of visit."

How a Client Can Screw Themselves Up

Thanks to Judith's Divorce Blog and her A BIG EGO for this very succinct description of how the client can damage themselves regardless of who they have for a lawyer:

Becoming entrenched in your position prevents compromise and when misguided conceit sets in, a marriage hurtles towards oblivion and a case towards a final hearing. Deaf to sound legal advice, arrogance can result in an otherwise unnecessary judicial determination of matters that could have been settled months before with the same outcome and at a fraction of the cost.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Divorce and Restraining Orders - an Idea from New York

In Indiana, Protective Orders deal with threats from spouses. Restraining orders deal with property issues. Once upon, there were only restraining orders and they dealt with protecting both people and property.

For the law on restraining orders we need to look at Indiana Rule of Procedure 65 and specifically:

(E) Temporary Restraining Orders - Domestic Relations Cases. Parties wishing protection from domestic or family violence in Domestic Relations cases shall petition the court pursuant to IC 34-26-5. Subject to the provisions set forth in this paragraph, in an action for dissolution of marriage, separation, or child support, the court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.

(1) Joint Order. If the court finds that an order shall be entered under this paragraph, the court may enjoin both parties from:

(a) transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; and/or

(b) removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction over such child without the prior written consent of all parties or the permission of the court.

(2) Separate Order Required. In the event a party seeks to enjoin by a temporary restraining order the non-moving party from abusing, harassing, or disturbing the peace of the petitioning party or any child or step-child of the parties, or exclude the non-moving party from the family dwelling, the dwelling of the non-moving party, or any other place, and the court determines that an order shall be issued, such order shall be addressed to one person. A joint or mutual restraining order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The trial court shall review each petition separately and grant or deny each petition on its individual merits. In the event the trial court finds cause to grant both petitions, it shall do so by separate orders.

(3) Effect of Order. An order entered under this paragraph is automatically effective upon service. Such orders are enforceable by all remedies provided by law including contempt. Once issued, such orders remain in effect until the entry of a decree or final order or until modified or dissolved by the court. 

While once standard operating procedure, I cannot recall any time in the past ten years when I have used a restraining order or seen anyone else using a restraining order.  I do not recall the last time I had a cleint worried that the other spouse would destroy or hide property.

osndiering all that I think the New York law described in New York Divorce and Family Law Blog's Automatic Stays: Protecting the Financial Interests of the Parties in Divorce a good idea:

In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly.

***

The summons will now state that an order is in effect and that:

1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.