The Trouble With Court-Sponsored Self-Help Programs: DYI May Not Be Successful

Over the years the judicial branch in MN and elsewhere has been devoted to making justice accessible to all litigants, regardless of income.  Self-help centers have been created in larger counties and fill-in-the-blank family law forms are now available on the court website.  The trouble with the trend is this:  it gives the impression that if a litigant simply fills in the blank, all is well.  This could not be further from the truth. 

You can watch You Tube on how to change a flat bike tire, repair your toilet, and do thousands of other tasks.  That does not necessarily mean it's a good idea and you will be successful.  This also applies to court proceedings.  There are important rules of court and statutes which one cannot glean from the forms, one of the most important being that the litigant seeking relief from the court has the burden of proof, that is, the burden to prove facts that warrant (under the law) the relief you are seeking.  For example, if you want child support, you must prove income and expenses, among other things.  If you want custody or parenting time, you must prove facts that warrant granting your motion for custody or parenting time.

On Dragnet years ago police detective Joe Friday would say,"Just the facts, ma'am."  Stating in a self-help form what is basically argument such as "my child needs me" is not stating the facts.  The moving party needs to prove, for example, that he or she has been the primary caretaker of the child.  This means recounting IN DETAIL under oath the facts that support such a conclusion, such as who did the majority (ie. primary) of the household tasks, arranged playdates, went to the doctor, bought and prepared the food, did the laundry, went to parent-teacher conferences, etc., not necessarily who was the breadwinner.  Following the forms may not lead one to conclude that this is necessary.

Do-it-yourself (DYI) does not necessarily lead to success. So what's the answer: at the very least meet with a lawyer to discuss your case.

For Lawyers' Eyes Only: The Curve of Client Satisfaction

Perhaps nothing is more common in family cases than that one or both of the parties is dissatisfied with their lawyer(s) in the case.  Interpersonal relationships are, of course, necessarily messy, so many family law cases are messy, with complicated facts and unreasonable expectations among the parties.  Throw into the mix interfering relatives, loss of job, estrangement from children, chemicals, affairs, foreclosures, overwhelming debt, or illness, or all of the above, and it would take a magician, not a lawyer, to meet a client's expectations.

Back about 30 years ago lawyer Jay Foonberg wrote one of the first books about starting your own law practice. 

Link:  http://www.goodreads.com/book/show/190628.How_to_Start_Build_a_Law_Practice

In the book there was an illustration of the curve of client satisfaction, basically an reverse "S" lying on its front.  The vertical axis was client satisfaction.  The horizontal axis was the passage of time.  As time passes in the family case, client satisfaction goes from high to medium to very low.  Some of his comments were priceless and here is the essence of some of them, with the client's statements to the lawyer in quotes:

Beginning of the case:  "Please take my case. I desperately need your help. Court is in a few days."

Middle of the case:  "Why didn't we win that hearing? You did a lousy job."

End of the case: "You stink as a lawyer.  I could've done better on my own."

Post-divorce when bill is received:  "You committed malpractice. I'm suing you."

I will try to find a link to the book.

Having a Nasty Lawyer Is Not in Your Best Interests; dealing with the demanding opposing lawyer

Though I see it less often than in the best, occasionally as a judge I am confronted by family lawyers who are either entirely insensitive to the feelings of the other party or are intentionally intending to hurt, demean or mortify the other party to please their client.  If you are getting divorced or have a family matter in court, think seriously about whether this type of lawyer will:

1.  Obtain a successful result
2.  Anger the judge
3.  Increase your fees and costs due to litigious behavior
4.  Harm your long-term relationship with the other parent or your joint children

If you are a lawyer, consider the following comments recently published by a MN attorney**

1.  Don't send nasty letters until you at least call the opposing attorney and try to resolve the issue
2.  Don"t blame your staff for mistakes within the office.  You are responsible.
3.  Don't serve documents at the last possible moment (5:00 pm) on the last possible day
4.  Don't be rude to deponents
5.  Explain to clients why it is in their favor for you to be friendly with opposing counsel
6.  Don't object to all of the interrogatories (or answer the first 50)
7.  Don't start your interrogatories with 3 pages of definitions or instructions
8.  Don't bring motions just because you can

Being a rude or aggressive lawyer does not equal being an effective professional advocate.

**Karen Kingsley, Pres., MN Association for Justice

Here's a link about dealing with the demanding opposing lawyer, the essence of which is that you need not get down in the gutter with them:
http://abovethelaw.com/2013/06/the-practice-dealing-with-threatening-demanding-opposing-counsel/

Real Estate Dispositions in MN Divorce Decrees are Final..Yes, F-I-N-A-L !

The disposition of real property in a Minnesota divorce decree is final and not modifiable in most circumstances, except by agreement of the parties.   Unrepresented parties frequently submit stipulated divorce decrees containing inadequate or confusing or unenforceable provisions to divide the home, cabin, rental property or other real property.  The most important element is an accurate legal description such as "Lot 1, Block 1, Johnson's First Addition, Wright County, Minnesota."  It is not enough to state "legal to govern."  Secondly, the provision must state clearly who is awarded title to the real estate and the judicial lien, if any, awarded to the other party. (Here is where you contact a lawyer if you do not understand this.)  If the house is to be sold, it must be clear who will be the realtor, who pays for repairs, how is the selling price decided, and who pays the mortgage, real etstate taxes, and insurance pending sale, among other things.

Refinancing of the mortgage by the person keeping title to the home is a common provision.  But I have seen many decrees which are silent as to the consequences of failure or inability to re-finance (which may be likely based on one income and not two)  In summary the decree should clearly state:

Who is awarded title or is the property in tenants in common or joint tenancy?
Who is to re-finance?
What is to re-financed (all loans or just the primary mortgage)?
When, that is, what is the deadline for doing so?
What are the consequences for failure to timely re-finance: sell the house?  Who gets what share?  What if the payments or taxes are del;inquent or repairs were not made?

When I ask these questions at default hearings, the parties often reply, "We get along, so it won't be a problem."  Which is not adequate.  If you get along so well, why are you getting divorced?

Bottom line: See a lawyer if none of this makes any sense to you and you are getting a divorce involving real estate.

Rule #1 When You Appear in Court: Dress & Act Like You're At Grandma's Birthday Party

I believe I have mentioned it before: when you appear in court, act and dress like you are at Grandma's birthday party.  You would think this is obvious, but it is not.  Last week a gentleman charged with domestic assault appeared in our court in a muscle shirt ( sleeveless) with many tatoos and displayed intimdating body language.  Bad idea.

A few months ago a man appeared before me with a shirt that said "I farted."  Really?  We have people appear in court with marijuana plants depicted on their T-shirt and worse. Bad idea.

Not infrequently people appearing in court and their entourage argue in the hallway, sometimes fight, sometimes interrupt the court when other matters are being heard.  Bad idea.  You could spend a few days in court for contempt.

Read the signs posted outside the courtroom and follow the rules.  Enough said.

Rule #1 When You Call the Court: Be Nice

It came up again today.  A legal assistant at a law office called our court administration staff about a problem.  The caller was rude.  This violated rule #1 for dealing with court staff: BE NICE.  As a young law clerk 37 years ago the lawyer I worked for explained to me that I must be respectful of court staff because if I didn't, they would never forget it and tell all of their colleagues.  Worse yet: they may tell the judge.  There is nothing more valuable to you as a lawyer than your reputation.  Just as important as your identity which you probably protect carefully.  Think about it.

More on Affidavits

On December 11, 2012, I posted "what is an affidavit?"  Having read several dozen affidavits over the past few weeks I am convinced that many litigants have not been fully informed by their lawyers as to what an affidavit is and what it is not..  First and foremost, it is sworn under oath to be THE TRUTH.  Not the affiant's version of the truth or interpretation, but rather THE TRUTH.  It is to be a statement of facts ("the light was green") not a statement of argument ("I was the primary caretaker of our children").  In family court we judges read affidavits in which one concludes that this couple could not possibly have lived in the same household because their affidavits are so diametrically opposed.

Second, an affidavit is sworn on oath.  I wonder how many lawyers actually have their clients raise their right hand and swear that this affidavit is the truth.  Stating falsehoods could result in a criminal investigation and perjury charges.

Third, an affidavit is required to state relevant facts. (see 12-11-12 and 11-2-10 postings)

If you are the lawyer preparing an affidavit, be careful about attaching potentially slanderous, immaterial, irrelevant, or confidential material to the affidavit.  Examples would be pornographic photos, profanity-laden text messages or emails or Facebook postings, or public records not separately sworn-to by the records custodian.  For example, a judge will likely frown upon attaching copies of a teenage child's diary pages to an affidavit.  Believe it or not, children actually have a right to privacy. 

In summary, be careful when considering what to say in or attach to an affidavit.  State facts, not argument.  Don't waste the judge's time with repetitive or argumentative affidavits.  Emphasize quality over quantity.  If you don't, you may lose the motion hearing before your argument is even heard.