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.

Friday, 15 April 2016

Lawyer as Litigator, Counselor and "Therapist"

Here is a link to a good article in about the various roles of a lawyer.  The author's comments certainly apply to the family lawyer.  One of the greatest disservices a family lawyer can give a client is failing to be honest about the worst case scenario.  Another is to fail to clearly and fully explain the costs of litigation, financial and emotional, and possibly on children.

Thursday, 31 March 2016

Terminating Spousal Maintenance If Cohabitating

A bill is passing through the MN legislature that would terminate awards of spousal maintenance upon cohabitation of the recipient with a third party.  This is actually nothing new.  Going back at least 30 years attorneys would put in dissolution agreements that maintenance would end on "cohabitation."  As a legislator has recently commented, this was a boon for private investigators since they would be hired to obtain photographic proof that cohabitation was occurring.  In the past motion would be filed by the payor and there would be litigation about whether there was "cohabitation" and what the word meant: living there?  In contested cases a judge currently cannot order than maintenance ends on cohabitation.   It will be interesting to see what happens.

Thursday, 10 March 2016

Failing to Provide the Judge With Enough Information

When considering motions for awards of child support or spousal maintenance, judges must consider the expenses of each party.  In MN this formerly was of greater importance when support was based on a percentage of net (after taxes) income. For nearly ten years in MN support has been determined based on a formula that considers gross income. However, when a party seeks spousal maintenance, the court must consider the expenses of each party.  Often a party's affidavit will fail to delineate what their household expenses are NOT including the children.

 For example, in a temporary relief hearing one party might assume that they will be granted physical custody of the children and will include the children's expenses in their household expense list.  If the other party is granted physical custody, the judge needs to have an affidavit which includes the support payor's expenses assuming they are not granted temporary physical custody.  Such information is often lacking in a party's affidavit.

In addition, a party cannot include the expenses of emancipated children who have graduated from high school, nor can they include expenses for children residing with them for whom they are not legally responsible.  This would include the expenses of an aging parent or the children of a significant other.

As always questions about these issues should be directed to one's attorney.

Tuesday, 12 January 2016

Dealing with a Lawyer Who Is a "Jerk"

Here is a link to another fine article by Jeena Cho on about how a lawyer should interact with other lawyers.  When obnoxious behavior by an attorney is brought to the attention of a judge, there can be several possible responses:

1.  Oh, well, that's to be expected in our adversarial system.  Truth wins out.  No harm, no foul.

2. A stern warning to the "jerk" to "knock it off" or face sanctions.

3.  Immediate sanctions with no warning.  This is generally frowned upon by MN appellate courts under our rules.

Likewise, obnoxious, uncooperative behavior by a party not represented by an attorney may result in sanctions including a default judgment or award of attorney's fees against them.


Monday, 4 January 2016

Grandparents Have No More Wisdom About Custody Than a Judge

I became aware that a longtime judge in Montana was retiring and made some comments about family law cases.  Judge Jeffrey Sherlock was quoted as saying," I have often thought we should have a panel of Grandmothers up there deciding who's best because we judges do not have any special magic book to tell us what to do." 

I agree that deciding the long-term care and custody of children is not effectively and healthily accomplished in our traditional adversarial process.  I often tell litigating parents that they will likely afford their children a better childhood by resolving a custody dispute themselves rather than leaving the decision to the "stranger in the black robe."  In doing so they will both be invested in the future success of their agreement.

But I do not agree that, even if possible, a panel of grandparents would be a solution.  Frequently criminal defense attorneys will argue that their client should be released from jail pending trial because the defendant is going to live with grandma or grandpa.  They may have expected me to think these folks are Ozzie and Harriet (from the 60's) or the Huxtables (from the 1990's)  but I do not.  There are no guarantees that these elderly folks will have any more control over the defendant than anyone else.  In effect, in the mistaken view of being loving, they may, in fact, be enabling anti-social or criminal behavior or chemical dependency.  Some of these grandparents have exactly the same problems themselves.

So if the parents cannot reach agreement, these tough decisions will have to be made by the stranger in the black robe.

Friday, 4 December 2015

Deposition is not an Opportunity for Obstruction

In a 1993 federal decision a judge wrote:

The underlying purpose of a deposition is to find out what a witness saw, heard or did- what the witness thinks.  A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.  There is no proper need for the witness' own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate the answers.  The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy (ventriloquist's dummy), with lawyers coaching or bending the witness's words to mold a legally convenient record.  It is the witness-not the lawyer- who is the witness.  Hall v. Clifton Precision, 150 FRD 525 (E.D. Pa. 1993)

Often a witness's lawyer will instruct the witness/client not to answer. This is improper and may be subject to sanction except to preserve a privilege, enforce a court's protective order, or present a motion to suspend examination (for example, the deposing lawyer is being abusive).

The witness has no right to stop the deposition to consult with the witness's lawyer.  The lawyer also is not permitted to follow an objection with "you may answer if you know" suggesting to the witness/client that he doesn't know.  Objections must be timely and specific within the Rules of Evidence.  Conferences during the deposition, including recesses, are not protected by attorney-client privilege, as to what the lawyer told the witness.

Lawyers who engage in obstructionist tactics, attempting to avoid disclosure of the truth, may face harsh sanctions from the court if the deposing lawyer seeks them.


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.