You’ve retained an attorney because you are going through a separation. Here are some suggestions for you to consider:
- MAKE SURE YOU TELL YOUR ATTORNEY EVERYTHING…NO MATTER HOW EMBARRASSING OR DAMAGING THE EVIDENCE MAY BE TO YOUR CASE. In order to be an effective advocate for you, your attorney needs to know the good, the bad and the ugly facts of your case. Your legal team is present to help you, not judge you. Learning about a damaging piece of evidence for the first time the day before a court hearing or trial will not give your legal team sufficient time to prepare a strong response. There may be legal arguments or evidence that could be presented on your behalf that, if your attorney had known sufficiently in advance, could have been used to soften or even neutralize the impact of the damaging evidence.
- BE PROMPT AND COOPERATIVE IN RESPONDING TO YOUR LEGAL TEAM’S REQUEST FOR DOCUMENTS AND INFORMATION. You will be asked by your legal team to produce documents evidencing your financial condition, such as statements, bills and invoices, documents relating to your business, employment benefits, retirement and other financial records. Or you may be asked to produce emails, text messages, photos and other non-financial documents. You may be asked to locate documents that are not easy to find and require a little effort on your part. These documents may be in response to discovery requests by the other party, or your legal team has determined that they are necessary for your case. When you are asked to produce a document by your attorney, don’t wait until the deadline is upon you to start your search. That puts stress on you as well as your legal team to make deadlines.
- LIVE YOUR LIFE AS IF THE JUDGE IS BY YOUR SIDE AT ALL TIMES….AT LEAST UNTIL THE CASE IS OVER. One of the many downsides of litigation is that in most cases, until the court renders its decision, your life and the opposing party’s life will be under a microscope. This is particularly true in child custody cases. Be careful of what you say, to whom you say it and what you do because it may come back to haunt you in court. Statements made to or in the presence of your attorney is protected by the attorney-client privilege. Statements to or in the presence of third parties are not protected from being disclosed in court or in a deposition. Think twice about your choices in actions taken during your daily life and decide whether you would want the court to know about your activities.
- RULE NO. 3 APPLIES TO SOCIAL MEDIA, AS WELL. In virtually all of my cases involving custody, post-separation support and alimony, opposing counsel will issue discovery seeking production of “all emails, text messages, postings on social media and all other electronic communications” to which my client was a party. Be careful of what you say on social media. Social media can be used to discredit you and your testimony. Don’t be on record of “bad mouthing” parties, attorneys and/or others related to your case. If you have violated this rule, then that is in the past. You cannot change history. Moving forward, you should avoid discussing or critiquing the court proceedings, the judge, the opposing party, their spouse and the opposing attorney. Engaging in derogatory talk about the legal proceedings and its participants will prejudice you in the eyes of the judge. As for not being able to change history…
- DO NOT DELETE EMAILS, TEXTS, SOCIAL MEDIA POSTINGS AND OTHER ELECTRONIC COMMUNICATION. Your written as well as oral communications, may be relevant evidence in your case. Deleting electronic communications and other social media posts will not make them no longer accessible to your spouse’s attorney. Under certain circumstances, deleted texts can be recaptured (or so I have been told). Most certainly, an expert can tell if something has been deleted from your device. That will definitely give rise to questions as to why you deleted the suspected text. Opposing counsel can, and will, argue that you destroyed evidence that would be detrimental to your case…and thereby call into question your honesty and integrity. Also, if the other party to the electronic communication is known, the texts and emails that you deleted can be obtained by subpoenaing the other participant’s device.
ABOUT ELIZABETH HODGES
Beth Hodges’ practice is devoted exclusively to family law. Ms. Hodges’ cases involve the litigation, negotiation, and settlement of simple as well as complex financial and non-financial issues and disputes.
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Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 17 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit www.offitkurman.com.
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