The District Court Show on You Tube!

Some of the episodes of The District Court Show (30 minutes each) are on YouTube, including the Tenth Judicial District Self-Help Center.

Wednesday, 18 November 2015

Affidavits and Pleadings in Minnesota Need Not be Notarized

As a result of 2014 legislation, court pleadings, motions and affidavits need not be notarized.  This was necessary due to electronic filing becoming mandatory statewide soon (and already in some counties).  However, the document must state:

I declare under penalty of perjury that everything I have stated in this document is true and correct.

Minn. Stat. 358.116

Call me skeptical but I am unconvinced that this statutory change will result in 100% truth-telling in family court affidavits.

Tuesday, 3 November 2015

Speaking in Public...and in the Courtroom of All Places!

Whether you are a party not represented by an attorney or you are an attorney with little courtroom experience, the prospect of having to speak in public, let alone in court before a judge (possibly a jury) and your opponent and a bunch of strangers in the courtroom may literally scare you to death.  I have observed very smart competent young lawyers fail to make any eye contact with the judge, mumble their argument, speak into their notes, and repeat themselves.  Some very good suggestions are in in 2 posts written by Jeena Cho.  If this is you, check them out.  Joining Toastmasters as a young lawyer is a great idea. 

Wednesday, 28 October 2015

Who is the Client?

I recently was meeting with a couple of lawyers in my chambers on a case that day set for court trial on custody and parenting time.  One lawyer said, "My clients are not interested in..."  I stopped him there and replied, "You have one client and it doesn't include her mother or father, or brothers or sisters."  I was a family lawyer for 24 years and I know that dynamic well:  the client's parents have paid the retainer and are financially supporting the litigation and feel the need to be actively involved.

Particularly in family law cases the lawyer must make clear to the actual client and any family or friends that the client controls the decision-making regardless of who is paying the attorney's fees.  Confidentiality remains the lawyer's ethical duty unless the client expressly grants permission to discuss the case with others.

Thursday, 22 October 2015

In Minnesota, Parenting Time Expeditors and Parenting Consultants are Treated Differently By Law

Not infrequently lawyers and unrepresented parties make motions to the court here in Minnesota for the appointment of an initial or replacement parenting consultant (PC).  These motions are usually denied. 

The appointment of and process for involvement of a parenting time expeditor (PTE) in Minnesota is governed by Minnesota Statute Sec. 518.1751.  PTE's must have specific training and become qualified to serve on the state court roster.  The role of the PTE is to "resolve parenting time disputes by enforcing, interpreting, clarifying, and addressing circumstances not specifically addressed by an existing parenting time order."  A PTE may be removed upon motion to the court only for "good cause."  Once a PTE is appointed a party who fails to cooperate in the PTE process risks a finding of contempt of court.

A parenting consultants (PC), however, is a different creature.  Their involvement with parties is strictly by contract with the parties, although their appointment BY AGREEMENT, may be reduced to a stipulated court order.  Judges have no authority to modify the contract or make orders contrary to the contract except by agreement of the parties.  The remedies a party has are set forth in the contract, including what they can do if the other party fails to abide by the contract by refusing to participate.

Family lawyers need to understand the difference and educate their clients.  Read Schultz v. Ruff, 2015 WL 4715189.

Monday, 12 October 2015

An Important Trial Skill: Impeaching a Witness With a Prior Inconsistent Statement

The proper impeachment of a witness with a prior inconsistent statement is a skill that all trial lawyers need to learn, even if you never conduct a jury trial.  I have rarely seen it performed correctly.  There is an instructive pair of videos on You Tube featuring Prof. Wes Porter of the Litigation Center of Golden Gate University School of Law.  In summary he proposes that the examining lawyer follow the three C's:

Commit                Credit                Confront

These videos are worthy of a lawyer's time if you wonder if you are performing this task correctly.  Unlike what I have seen in the courtroom, they do not allow the witness to see or read their prior statement or deposition testimony.  They strongly suggest that you do not go further and ask "were you lying then or are you lying now?"  which is arguably an argumentative and objectionable question.

If you learn this skill your cross examination will be more effective and you will single out yourself as a family lawyer with above average trial skills.

Wednesday, 30 September 2015

MN Law Requires Alleged Facts About Custodian to be Relevant to Parent -Child Relationship

Minnesota Statute Sec. 518.17 (1)(b) states that "the court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child."   Under MN court rules all documents must be "relevant and material to the issues before the court."  Nevertheless, many lawyers, including very experienced lawyers, continue to include in affidavits the following:
1.  Juvenile delinquency records of spouse
2.  Criminal histories of a spouse's siblings and other family members
3.  Records of a spouses's childhood counseling or pregnancies or abortions
4.  Lascivious and lewd photos from a party's Facebook postings
5.  Allegations of spouses's adulterous relationships

For the most part none of these facts have anything relevant to consideration of the parent-child relationship and the best interests of a child.


It is a waste of the court's time to read through these allegations and lengthy denials.

And will not put your client in a better light.

Wednesday, 2 September 2015

The Minefields for Lawyers Dealing With Unrepresented Parties

It is commonplace in family law cases that one party has an attorney and the other does not.  There are several ethical rules for the lawyer to consider in these situation, as discussed in a July 2015 article by Martin Cole in the Minnesota State Bar Association publication Bench and Bar.  New family lawyers would be best served to thoroughly review the ethical rules in this area as it can be a minefield fraught with risks of complaints to the Lawyers Board of Professional Responsibility or Bar Associations.  There continue to be more continuing legal education seminars on this issue.  Some lawyers today consider themselves just "scriveners," that is, drafting divorce agreements and decrees at the behest of both parties.  That is extremely risky and probably unethical regardless of the apparent simplicity of the case (nominal assets, no kids).