Getting Exhibts Before the Court

Elliot Wilcox is a local attorney that has great advice for how to get your exhibits before the court.  Since the court holds everyone to the same standards as attorneys I thought I would share this well written article that was submitted by Mr. Wilcox and published in the Maricopa County Bar Associations Family Law Newsletter.

Article:

As a trial lawyer, you know that it's not enough to merely limp across the finish line and get your exhibits admitted into evidence. If you want to win, your exhibits need to persuade the jurors. Unfortunately, the persuasive effect of your exhibits can be diminished by a sloppy presentation or a bumbling attempt to introduce the exhibit into evidence.

Getting exhibits into evidence is easy. Here's all you have to do:

1. Pre-mark the exhibit

2. Show it to opposing counsel

3. Show it to the witness

4. Ask the right predicate questions

5. Ask the court to admit the exhibit

6. Let the clerk mark the exhibit into evidence

That's all there is! But when I'm coaching trial lawyers how to work with exhibits, one of the more frequent problems that I see is the inability to artfully introduce exhibits into evidence. Most of the trial lawyers I've seen tend to stumble and trip over their own words when they reach step #5. It's not because these attorneys don't know what they're doing or because they've never taken an Evidence course. Typically, there are two reasons why their attempts to introduce evidence fall flat:

The first reason is because many attorneys don't understand the difference between their role and the judge's role during trial. Hang around the courthouse for an afternoon and you'll probably hear a lawyer say something like this:

“Your Honor, at this time we would admit Plaintiff's Exhibit 'A' for Identification into evidence as Plaintiff's Exhibit 1.”

But lawyers don't get to “admit” anything into evidence -- that's the judge's job. The judge is the gatekeeper who determines which exhibits will be admissible and which ones will not. The first step to smoothly admitting exhibits into evidence is to understand that we can only “offer” exhibits into evidence. Once you understand that only the judge has the power to determine whether or not the exhibit is “admitted” into evidence, you'll never make this mistake again.

The second (and far more common) reason why trial lawyers falter when introducing exhibits is because they don't practice saying the “magic phrases” that judges need to hear before admitting evidence.

As you know, in persuasion, it's not just what you say, it's how you say it. Whenever you ask someone to do something, one of the things they'll consider in deciding whether or not to grant your request is how confident you appear when you ask. Compare these two requests:

Example #1: “Um, Your Honor, we would, uh, move the photo of the accident scene, I mean, um, Plaintiff's Exhibit 'A' for identification, into evidence, I mean we would ask you to admit it into evidence.”

Example #2: “The Defense moves what's been previously marked as Defense Exhibit 'C' into evidence as Defense 5.”

Your evidence has a better chance of being admitted when you appear confident that it should be admitted. If you seem hesitant or unsure of yourself, your opponent thinks, “Roger doesn't seem positive that this exhibit should be admitted into evidence. I should probably object...” To smoothly and persuasively move exhibits into evidence, you need to become comfortable with the language of admissibility. Examine these sample phrases and pick one that you'd like to use in court:

• “Your Honor, I ask that what's been previously marked as Plaintiff's Exhibit 'A' for
• Identification be admitted into evidence as Plaintiff's #1.”
• “At this time, we offer Plaintiff's 'A' (for identification) into evidence as Plaintiff's exhibit #1.”
• “The Government at this time, Your Honor, would move to introduce Government's
• Exhibit No. 23 into evidence.”
• “Your Honor, we'd offer Defense Exhibit 1701 into evidence.”
• "Your Honor, I move that Plaintiff's Exhibit 'A' be introduced into evidence.”
• “We offer Exhibit 'A' into evidence.”
• “Your honor, I would like to submit People's exhibit 'A' into evidence.”
• “We would ask the Court to admit State's Exhibit 'R' for Identification as State's #12.”

Once you find the phrase you'd like to use, write it down on a separate piece of paper that you'll take with you to trial. Obviously, you'll want to memorize the phrase, but post a copy of it inside your trial notebook or tape it to the lectern (just in case!)

It's not enough to merely know the magic words: You must be completely comfortable with them so that the words appear natural and flow easily from your tongue. After you memorize your preferred statement, you need to practice reading it aloud. Your initial reaction is to probably skip this step, but don't. Just like the actor who practices his lines aloud until he owns the lines, you should practice your statement aloud they become your words.

The last thing you want is to stumble or trip over the phrase when you're trying to be persuasive, so practice saying it aloud until it's second nature. Follow these simple steps, and soon you'll be uttering the magic words of admissibility with ease!

Divorce: Hidding Assets. What to Look for.

If you’re going through divorce, you need to ask yourself is your husband (wife) hiding assets?

Hiding assets during a divorce is sneaky, unethical and illegal –but it happens much more frequently than most would expect.

What to look for:

Purchase items that could easily be overlooked or undervalued. Maybe no one will notice that expensive antique/carpet that’s now at his office? Were you wondering why they recently made several significant additions to his coin/stamp/art collection?

Stash money in a safe deposit box, somewhere in the house or elsewhere. Think through your spouse’s recent habits and activities. Does anything lead you to believe they is hiding assets in actual cash?

Underreport income on tax returns and/or financial statements. If it’s not reported, it can’t be used in a financial analysis.

Overpay the IRS or creditors. If your spouse overpays, they can get the refund later, after the divorce is final.

Defer salary, delay signing new contracts and/or hold commissions or bonuses. This sneaky trick means this income won’t be “on the books” during the divorce proceedings.

 

Create phony debt. Your spouse can collude with family members and/or friends to establish phony loans or expenses. Then, they can make payments to the family members or friends, knowing that they’ll get all the money back after the divorce is final.

Set up a custodial account in the name of a child, using the child’s social security number. They could also use his girlfriend’s social security number, in which case it might be difficult to locate the account.

Transfer stock. Your spouse may transfer stock/investment accounts into the name of family members, business partners or “dummy” companies. After the divorce is final, the assets can be transferred back to him.

The list goes on and on . . . and it certainly begs the question: Why would a spouse do any of these things? There are many possible reasons. They may fear not having enough money after the divorce. They may feel they are getting revenge for an infidelity. Maybe they are just greedy and feel that they deserve it! Whatever the reason, hiding assets, income and debt is not only unethical; it’s also illegal and subject to severe penalties if discovered.

But even so, the burden of proof is often on the spouse with less financial resources (typically the woman) to prove any such unscrupulous behavior.

Just an Opinion

Today’s Arizona Republic had an interesting point of view in the Opinion Section of the paper.

The opinion of Derek McClintock of Phoenix went as follows:

 

“I read with great interest Cathi Herrod's viewpoint on the importance of marriage as a "fundamental building block of our society" ("Support of tried-and-true tradition of man-woman nuptials will grow," Viewpoints, Sunday).

 

With the great weight Herrod attaches to this institution and her obvious expertise in citing "study after study" regarding wealth creation and child rearing, I have a simple question.

 

Would not the greatest threat to this institution be divorce and not expanding the boundaries of the current definition of marriage to include a small minority of the population?

I would like to propose an innovative solution that not only includes the small gay and lesbian population who want to legally recognize their relationships as others are free to do, but also severely penalizes anyone divorcing themselves from these marriage contracts since doing so poses such a threat to the very foundations of our republic.

I would think that libertarians would welcome such a fiscally responsible solution. And this actually has the added benefit of not being a thinly veiled argument of exclusion and prejudice.

-- Derek McClintock, Phoenix”

Now I respect everyone’s right to have an opinion and especially a religious opinion such as this but I don’t think this was completely thought through.  While I am a firm believer in the sanctity of marriage and that all marriages if they can be saved should be when they come upon troubled times but there are scenarios when divorce is the only solution and in those times the person that files for divorce should not be penalized.  I of course am speaking of times when domestic violence rears its ugly head.

 

Is it fair to fine or penalize a woman or a man who is trying to escape violence?  Is it fair for a man or woman who only option is divorce in order to protect the children from an attacker who is a parent?  Should someone be forced to stay in a marriage were one of the parents is sexually molesting the children?

I am in agreement with religions that believe that marriage is serious business and should be saved but I must part ways with a dogma that would force someone to stay in an abusive and possibly fatal situation.  A persons’ safety and that of the children should be out and fortunately the legislator and judiciary of the State of Arizona agrees with me.

How do I modify an existing modifiable spousal maintenance Order?

Unless the parties previously agreed that the spousal maintenance award was non-modifiable, a parent may attempt to modify and/or terminate an award of spousal maintenance for a variety of reasons. One of the more common reasons spouses seek to modify spousal maintenance occurs when a spouse experiences a substantial and continuing change of income and/or living expenses.

The court understands that on many occasions one spouse’s circumstance will change over time and it is necessary to ask for a modification of the prior “Decree of Dissolution”. This could be due to the loss of a job or reduction in income of one spouse, or health issues and medical bills which may arise due to illness of a child. It is especially important to modify the Decree of Dissolution if circumstances have changed and they are affecting the “best interest” of any of the children involved. It is important to put together all documentation and witnesses who could support your claim that a Modification is immediately necessary.

A spouse seeking to modify and/or terminate a spousal maintenance order must file a petition for modification and attend a hearing at which time evidence is presented in support of the requested modification and/or termination. Discount Divorce & Bankruptcy is very experianced at handling just such documents and can manage all court processing and filing.

Bad Behavior Makes for Large Bill

Wife appealed from a trial court order requiring her to pay $552,000 as sanctions and fees to her former husband with respect to two post-dissolution matters. However, she found that her endless and reckless pursuit to achieve her desired result was not a view shared by the Court of Appeals.

At trial, Wife had assets of at least $6 million, though Husband claimed that she had over $30 million in assets. Wife’s ‘war’ on Husband, included not following the court's orders, not appearing in court, and failing to even accept the court's authority to make orders. The Court found her conduct “reckless”, saying that Husband had met his burden of showing that Wife dilatory and uncooperative conduct frustrated the policy of the law to promote settlement of litigation and cooperation among litigants. Further, the Court of Appeals stated that portions of the litigation lacked any legitimate legal basis.

The Court of Appeals affirmed the trial court’s orders. In fact, additional sanctions of $15,000 were imposed against the Wife and $10,000 against her appellate counsel on a finding that the appeal was frivolous.

In re Marriage of Wahl and Perkins
California Courts of Appeal, Sixth District
Case Number: H035712
Date Filed: February 2, 2012

Support Changes if You Don’t Visit as Agreed

A mother commenced dissolution of marriage matter, with a minor child, in November, 2007. In March and April, 2008, the trail court entered temporary orders, including an order for child support in the amount of $1,665.00 per month, and an order for temporary parenting time to Father of alternating weekends (First Parenting Plan, or “FPP”).

In September, 2008, the parties entered a Rule 69 Agreement, wherein they agreed to deviate from the Guideline calculation for support of $1,665.00 per month, to $300.00 per month, in recognition that Father incurred significant travel expense to travel from his state of residence, California, to Arizona to exercise parenting time pursuant to the FPP.

Thereafter, Father lodged a decree which purported the child support deviation to be “permanent.”Mother objected to the decree, alleging the Rule 69 Agreement did not include a “permanent” deviation. The trail court ordered the parties to arbitrate the final language of the decree. In October, 2009, the trail court adopted a revised parenting plan (“RPP”), where Father exercised parenting time only on “the second weekend of every second month.” On October 30, 2009, after the arbitrated decree had been finalized, but before the trail court entered arbitrated decree, Mother filed a petition to modify child support, alleging Father’s travel expense to exercise parenting time was reduced by entry of the RPP, and that Father did not exercise any parenting anyway. Thereafter, the trail court entered the decree, held child support modification hearing, denied Mother’s petition to modify support, and denied Mother’s motion for new trial.

As Mother argued to the trail court, Mother argued to the court of appeals that Father’s failure to visit the child and travel to Arizona, combined with the reduced parenting time of the RPP adopted at Father’s request), constituted a material change of circumstances warranting modification of the child support obligation. Father argued to the court of appeals that when the trail court entered the decree, it already adopted the RPP and, thus, the reduced parenting time did not represent a change of circumstances existing at the dissolution.

The court of appeals found settlement agreements do not preclude modification of support, custody, or parenting time: Settlement agreements, such as the parties' Rule 69 Agreement, do not preclude the modification of “terms concerning ... the support, custody or parenting time of children.” Ariz.Rev.Stat. (“A.R.S.”) § 25–317(F) (2001). An “order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing.” A.R.S. § 25–503(E) (2009).

The court of appeals further found the difference in the anticipated travel costs associated with exercise of the FPP, and the travel costs actually incurred (or not incurred as a result of Father’s failure to exercise the RPP) is a substantial and continuing change of circumstance, which warranted a modification of the child support order, pursuant to A.R.S. § 25–503(E).

The court of appeals held the trail court abused its discretion by denying Mother’s motion for new trial, reversed the denial, and remanded the case for a new hearing on Mother’s petition to modify child support consistent with the court of appeals decision.

How Parents are Using Child Obesity as a Weapon in Divorces

I was reading the County Bar Associations newsletter and came accross this interesting article that was writen by Tamara Abraham that I found very interesting and would like to share.

Family lawyers have revealed how child obesity is increasingly being used as an argument in divorce court custody battles.

They say separating parents in the U.S. are now regularly accusing one another of allowing children to eat too much junk food, and not encouraging them to do enough exercise.

Risk of bullying and obesity-related diseases, such as diabetes, are often cited as reasons children should live with one parent rather than the other.

Douglas Gardner, a family lawyer in Arizona, told the Wall Street Journal: 'It's come up quite a bit in the last couple of years. 'Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease - or saying that the child is miserable because he's getting made fun of at school.'

While evidence and outcomes vary dramatically, it marks a shift in the nature of arguments employed in custody battles. Jeff Wittenbrink, a family law specialist in Baton Rouge, Louisiana, added: 'It used to be constantly and consistently about smoking. It's only been recently where one parent thinks their kid's not active enough, is gaining weight and eating sugary food.' In a survey by TotalAttourneys.com, lawyers said that the subject was becoming a bigger issue in custody battles because the public is becoming more conscious than ever of the health risks associated with obesity.

'If all things are equal but one person only feeds fatty foods and the children have weight problems... it can become an important distinguishing factor'.

Indeed, the trend follows a series of high-profile cases and debates surrounding the subject.

In 2009, a 555 pound teenage boy in South Carolina was taken into state custody after his mother was arrested and charged with criminal neglect. And just this summer, Boston obesity expert David Ludwig sparked controversy when he wrote in an article that 'in severe cases of childhood obesity, removal from the home may be justifiable.'

But, legal experts warn, the obesity argument is only likely to have impact in severe cases. Chicago lawyer Jonathan Merel explained: 'If one side is scratching to find something wrong with the other person, the courts might not give it the same weight. 'If all things are equal but one person only feeds fatty foods and the children have weight problems, I think it can become an important distinguishing factor.'