Tag Archives: Court

I Say, You Say, We All Say Hearsay

09/09/2013 BowTieLawyer Leave a comment

Witness: And then my neighbor said that he was f….

Lawyer: Objection, your Honor. Hearsay.

Judge: Sustained. Don’t tell me what somebody said.

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Hearsay happens everyday. Hearsay, by definition, is any out of Court statement used to prove the truth of the matter asserted. Huh? Yep, legal mumbo-jumbo. Think of hearsay as ANYTHING that is said outside of the Courtroom by ANYBODY. It also includes writings, documents and many, many things, but that is a blog for another day. Today it’s about testimony.

Most commonly hearsay occurs anytime a witness is telling their story. It is very difficult to tell what happened and who did what without saying what was said. This is very frustrating for witnesses, irritating for Judges and something a lot of attorneys woefully ill prepare for. If you are a witness testifying just know that you cannot say what somebody else said unless they are a party in the case.

So, when mom is testifying about how upset little johnny was when dad dropped him off late for the baseball game, but mom did not see it and was relying on the assistant coach telling her, she can’t say what the assistant coach told her. Either the assistant coach has to come testify or mom has to describe little johnny after the game. “He came home sullen, eyes red, as if he’d been crying.” Little Johnny told her what happened. So she called dad. Now she can talk about the call with dad and who said what because they are the parties. Confused yet?

Hearsay and testimony is something you need to practice handling with your attorney. You may always describe what you did and said and this is the way around hearsay and/or having the other witnesses involved testify.

Matthew Thompson is a family law attorney and encourages you to practice your testimony and telling your story without saying what somebody else said.

You may contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Divorce, General Legal, Opinion, Visitation

Emergency! The 411 on 911 in Court

05/20/2013 BowTieLawyer 2 Comments

I get the call, at least, weekly. It is an EMERGENCY! I have to get into Court yesterday to solve some critical issue. However, once I start asking questions the emergency is more like an inconvenience.

For Court purposes, think of an emergency as being a true emergency; danger of life or limb, or the immediate threat of imminent and irreparable harm.

The Court judges emergencies on a case by case basis to make sure they have merit. Some examples of emergencies include;

when the custodial parent refuses life saving medical treatment, against medical advice
when one parent absconds with a child, it’s not “their” time and refuses all contact
when a parent is using illegal drugs in the presence of the child and/or exposing the child to that lifestyle
is abusing the child
is neglecting the child

Some examples of non-emergencies, at least for Court purposes;

is 15 minutes late for a pick-up or a drop-off, even multiple times
stops paying the house mortgage
forgot to give the recommended dose of antibiotics
returns the child in the same clothes that he was dropped off in
returns the child with a scratch or bruise caused by kids being kids

Emergencies are quite often judgment calls and the Judges treat these seriously when they are serious and are nonplussed when a lawyer files an Emergency Petition over a non-urgent circumstance. The Judges are also somewhat on guard against persons using ERs for tactical advantage and this can and does backfire on the petitioner if it is not a true emergency.

Matthew Thompson is a family law attorney in Mississippi and is careful on the draw about declaring emergencies.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@BowTieLawyer.ms

Child Custody, Divorce, General Legal, Irreconcilable differences, Opinion

Why Settling your case is BEST!

05/18/2013 BowTieLawyer 6 Comments

“I want a bulldog!”

“I want to take him to the cleaners!”

“It’s the principle!”

Oftentimes I am asked the difference between settling a case and litigating a case to a conclusion. In my experience, more often than not, settling your case leads to a better result. Here’s why.

It eliminates the uncertainty of a Court ruling. You know what you get.
It usually results in a quicker end.
It can save money.
Settlement gives your more control and “say” in the final outcome.
Settling your case allows the matter to end on a “positive” note, perhaps more amicable than otherwise.

Cases can be settled through a variety of ways, through negotiation or mediation, either through the parties, through the attorneys or a combination of both.

These are just some of the reasons why settling your case may be best. However, there are also those cases that cannot be settled. Typically, hotly contested custody cases cannot be settled because both parties genuinely believe that they have to fight for what they think is best. And sometimes the other party is just a big jerk that makes everything a fight!

Know this;

People don’t get taken to the cleaners (unless they agree).
Suing on principle is unsatisfying and expensive.
Bulldog lawyers seldom make a difference in the outcome, they only alter how you get there.

Matthew Thompson is a family law attorney in Mississippi and can attest that big jerks can try to fight, but usually get what they deserve…

Child Custody, Divorce

Guardian Ad Litems – Representing Children in Court

02/08/2013 BowTieLawyer 4 Comments

The Judge’s job in a custody/divorce case is to determine the best interests of the children when mom and dad are fighting. The Judge considers mom’s testimony and evidence as well as dad’s and even the children’s testimony (clickable). But there is also another implement in the tool box of information available to the Court, the Guardian Ad Litem (GAL).

A GAL is a person, usually a lawyer, appointed by the Court to take on one of two roles.

1) The first of these is to be an Attorney for the Children. To represent the child in the same capacity any attorney would represent a client, with the same duties, obligations and confidences that every attorney owes to each client. This role is fairly uncommon in custody/divorce actions.

2) The much more common role is that of Investigator for the Court. Judge’s routinely appoint an attorney to serve as the Court’s eyes and ears on the ground. Judge’s are limited to what they can hear.

They are limited by time constraints, objections, admissibility issues, and lawyer’s abilities. A GAL appointed by the Court as an Investigator has much more readily available access to information.

GALs interview mom, dad and the children.
They can interview teachers, doctors, counselors, friends, and coaches.
They can practically speak to anyone they think they need to.
A GAL can inspect the home where the children stay and can do so unannounced.
GALs can pay surprise visits.
GALs can access school records, medical records, counseling records.
GALs can request medical evaluations and even psychological evaluations.
GALs, by and large, can do what is necessary to get to the bottom of the issues in a case.

So why does every case NOT have a GAL?

1) They are only required in abuse/neglect cases, otherwise it is discretionary. The Court may not allow for a GAL.

2) It adds another layer of expense, another attorney to pay. The Court usually makes both parties pay.

3) It can create delay. The GAL may ask for more time to conduct the investigation and scheduling trial depends on another lawyer’s calendar.

4) The GAL may not believe you. They are human and may believe the other parent over you, plus you may be lying to them. It adds risk.

5) They may not do a good job.

GALs typically prepare a report that is provided to the Court and both lawyers. It recounts their efforts, interviews, documents reviewed and conclusions drawn. The GAL report also includes recommendations, usually. The Court is not required to follow the GAL recommendation.

Guardian Ad Litems can be a critically important tool available to the Court or parties in a contested custody battle, but the involvement of a GAL also has risks and expenses associated too. Talk to your lawyer if you have concerns about abuse/neglect and whether a GAL may help in your case.

Matthew Thompson is a family law attorney that has served as a GAL and has handled numerous cases involving GALs. He has seen the good, the bad and the ugly. He also conducts GAL training sessions at Continuing Legal Education Seminars for lawyers that want o become certified GALs; topics include conducting GAL Custody Evaluations, GAL Investigations, GAL Reports and Testifying.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms.

Divorce, Opinion

The Great Debate? Not in Court.

10/16/2012 BowTieLawyer 1 Comment

If you or I answered questions in Court like the presidential candidates do at the recent town hall debate we would be running the risk of being held in Contempt!

In Court parties/witnesses must answer the question asked. It is preferred that the answer be “yes” or “no” and then an explanation offered if necessary. Obviously if it’s not a “yes or no question,” answer the question asked. This can be very difficult to do and takes practice to get this right. One of the things that can aid this is to practice or rehearse the actual questions with your attorney. By way of example, one of the candidates was asked does the Dept of Energy consider its role to work to reduce gas prices. The answer given was not “yes” or “no.” I am actually not sure what the answer was…and I listened to it.

If you find yourself in Court, not answering the question asked may result in the Court to conclude you are being deceptive. This is not an impression you want to create.

Another thing to be sure of is to answer only the question asked. Do not answer what is not asked and do not offer more than what is asked. The best example I can think of is when a party was asked if they had committed an affair with “Mary” since the separation. The answer was, “I have not committed an affair with ‘Mary’…since the separation.” There was an awkward pause. The awkward pause resulted in the follow up question of when did you commit your affair with Mary. The party told on himself by not just saying “No” which would have been a completely truthful answer to the question asked.