South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

When it comes to the Courtroom, you will find this to be a pretty place. Once the divorce proceedings begin, the outcome of your divorce is in the hands of a total stranger – the Judge. You no longer have control. All decisions will now be made by a stranger. Of course this stranger may be having a bad day, not feeling well, or even have had a major fight with their spouse the night before. I know it’s scary and may even seem unfair, but this is the real world and it happens all the time. This judge is now in control of the outcome of your trial.

Here are a few tips to help prepare you for the Courtroom experience:

• First, I strongly recommend you try to settle as many issues as possible before entering the Court Room. This means the judge won’t be in control of everything.
• Do not expect the Judge will always make decisions in your favor. There are three directions the judge can go when making a decision: Your way, your spouse’s way, or the Judge’s way. As you can see, two out three are not in your favor.
• Discuss how you should act, and when to speak with you attorney before going into the courtroom. Do not speak unless asked to do so by the Judge.
• When addressing the Judge with respect by addressing him/her as “Your Honor.”
• Never speak to or make comments to your spouse when you are before the Judge.
• Leave all hostile and negative emotions at the door. Do not make faces or gestures when the judge or your spouse’s attorney is speaking. Judges see this and do not appreciate it.
• Dress for success. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
• Take notes. Don’t leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
• Be prepared and stay organized. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
• Be prepared to be in the court house for some time. You will sometimes wait for hours before your case is called.

Source:  "Divorce – Court Room Tips" published at Barrow & Weigel PLLC's Kentucky Family & Divorce Law Blog.

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Clients often wonder what they should wear to Court for their hearing.  The answer can vary depending on whether your case is contested or non-contested.  If your case is not contested, such as a no-fault divorce or approval of an agreement, then the following attire is recommended:

• For Men:  A nice pair of slacks and a dress shirt or golf shirt would be appropriate. A sports coat or suit may be worn but certainly is not required. Shoes and socks should be worn as “flip flops” are prohibited. Shorts are not permitted to be worn in the Courtroom, nor are tank tops, tee shirts, shirts reflecting foul or vulgar language or politically incorrect language, or hats.
• For Women:  A dress, skirt and top, or slacks and a nice top would be appropriate. As in the paragraph above, it would not be appropriate to appear in Court in shorts, a halter top, or a skimpy tank top, or flip flops.

In contested cases, where the parties will testify against one another, the Court's impression of each party is much more important, and the proper and/or appropriate attire for either party changes dramatically.  For instance, in a contested divorce or child custody hearing, wherein each party would be on the witness stand for protracted periods of time, the following attire would be appropriate:

• For Men: Same as above; however, a sports coat or suit could be worn but would not be considered mandatory. If the Husband/Father is seeking custody of his child or children, he would want to be dressed conservatively – nothing too flashy, nothing too out-of-the ordinary. For example, if a young Husband is seeking custody of his children, he could receive “negative” points if he appeared in Court in non-traditional attire such as Black Gothic Style clothing or wildly colored hair. Remember, that most Judges are older conservative individuals. If the Husband/Father has an abundance of tattoos, he should consider wearing a long-sleeved shirt to “cover” them.  Also, it would be advisable for the client to remove evidence of body piercings – ears, lips, nose, eyebrows, etc.
• For Women:  The main point to remember is that this is not the time to appear to be “hot” or “sexy” – especially if you are seeking custody of your children. You want to appear stable, sensible, warm and loving. Soft colors are better than bright and vibrant colors. Longer skirt lengths are better than short skirt lengths. You do not want to wear anything that would be considered “too short, too skimpy, too wild, too bold, or too sexy”.

Typically, clients should dress for Court as they would for church or an important job interview. If you are in the armed services, wearing your military attire is a very safe choice. If you look sloppy or inappropriate, the Judge may believe that you are showing or displaying a lack of respect for the Court.  Never forget that you have only one opportunity to create that “first impression”, so consider these “do’s and don’ts” in advance of your Court date and make a good impression with the Judge.

Source:  "How To Dress For Court – Do’s And Don’ts" by Robert L. Mues, published at his Ohio Family Law Blog.

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The South Carolina Court of Appeals issued a decision last week in Department of Social Services v. Laura D that it is necessary for incarcerated parents to be present at hearings, particularly when the Family Court has already issued an Order requiring the Department of Corrections to transport that parent to the hearing.

After the child of Mother tested positive for cocaine, the child was taken into emergency protective custody and Mother was ordered to complete a treatment plan. Prior to a scheduled judicial review hearing, Mother was incarcerated. Although the family court ordered the Department of Corrections to transport Mother to the hearing, it failed to do so.

At the hearing, Mother's counsel moved for a continuance based on Mother's absence but the trial court denied the motion, finding Mother to be at fault for her absence based on her incarceration. The Mother appealed, and the Court of Appeals reversed and remanded for a new hearing with Mother present.

The Court of Appeals held that Mother was a necessary and proper party to the action and that the Family Court's refusal to grant her motion for a continuance denied her meaningful access to the courts. The Family Court's reliance on Mother's incarceration preventing her from being present at the hearing was misplaced because she was entitled to be present at the hearing under the court's order of transport.

You can read the full text of this opinion by clicking HERE.

 

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This week, I have explained certain aspects of temporary hearings in Family Court cases in South Carolina.  One of the things that I explain to all of my clients before these hearings is "No matter what happens, good or bad, this is only temporary."  I also reassure my clients that I am not telling them that to prepare them for bad news, as I discuss this point all my clients, whether I think the hearing will go our way or not.

Because the Court is only given certain slices of information by the parties and there is no opportunity for cross-examination at these hearings, the Court must make decisions while using incomplete and often contradictory information.  To make matters worse, some Affidavits contain misleading, inaccurate, and even false information, which further complicates the Court's decision-making process.  The result is that sometimes the Court can make the wrong decision at a temporary hearing, but the client can take some comfort knowing that it will likely later be rectified at a final hearing.

So does it make sense for parties to use inaccurate information in their Affidavits at these hearings?  The answer is "absolutely not", and it is very short-sighted for a party to take that approach. Since Affidavits are sworn statements, all information contained in them is subject to being used to impeach their authors at trial, and witness credibility is extremely important in Family Court because many issues are "he said / she said".  Once a witness loses his/her credibility on any issue, the Court will be much more critical of everything that witness says, and it may believe none of that person's testimony – which can impact the outcome of the case and makes this an unwise gamble.

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In South Carolina, the majority of Family Court cases begin with a "temporary hearing", which is scheduled as a result of one party filing a Motion for Temporary Relief.  At this hearing, the Court determines what will happen between then and the final hearing, which is typically held many months in the future.  The main types of issues decided at this hearing include which party will have temporary custody of children, what visitation the other party will have, how much child support will be paid, who gets to stay in the house, how the debts will be divided, whether there will be temporary alimony, etc.

At this hearing, both parties file Affidavits to support their respective positions and the Court will allow each attorney a short time to argue why his client should be granted the relief he/she is seeking.  The Affidavits are not exchanged prior to the hearing.  No one gets to testify, and there is no cross-examination at these hearings.  The end result is that one side argues that things are "jet black" while the other side argues that they are "snow white".  In reality though, just as in life, things are typically a shade of gray.  Now, it is up to the Court to decipher whether it is a charcoal or silver shade, and the Court has to do the best it can with the limited information provided to it.

Fortunately, all decisions made at this hearing are truly "temporary" in nature.  They are without prejudice to either party, and they are subject to change at the final hearing.  Of course, given a choice, I would always rather prevail at the temporary hearing if possible because it allows for some strategic advantages as the case progresses.  For that reason, I try to get my clients to help me as much as possible early in their case by providing as much information as they can about their case. Early organization and preparation can (and often do) yield better results at the temporary hearing.

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One of the primary things that family law attorneys do is litigate cases.  In fact, we are probably in Court more regularly than attorneys who practice in other areas of the law.  My friend and fellow blogger, Andy Arnold, has written an article entitled Ten Proverbs for Litigators.  Although Andy's practice area is different from mine (as he handles employment law and nursing home neglect cases), I found this article to be thought-provoking, and I believe that many of his "Proverbs" apply to family law as well:

Trying cases is what I think I do best. There are some lessons that I have learned along the way. Twitter helped be shrink them down to 140 characters or less. Here are my top 10:

1. Cases are won as much by facts forgotten as facts remembered.
2. If truth is in the middle, then so will be the verdict.
3. Juries tend to make humble lawyers proud and arrogant lawyers humble.
4. The billable hour, whether your own or another’s, will dictate the course & length of litigation more times than not.
5. If you don’t pay attention to the trivial aspects of your case, the jury just might. Know thy case.
6. Don’t ask, if you don’t already know.
7. Jurors want to know you believe in your case before they believe in it.
8. If you don’t like your client, the jury surely will not.
9. Moderation in all things, except your passion for your case.
10. Make your case a cause.

Source:   "Ten Proverbs for Litigators" by Andy Arnold, published at Blogger at Law.

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In Family Court cases, one cannot overstate the importance of being able to prove your allegations.  Many of these cases are "he said / she said", so having the ability to give specific detail is particularly important.  In contested cases, I encourage my clients to keep journals for me so that we can later document specific dates and times that important events occurred.

Chris Schmiedeke of the Texas Family Law Blog blogged on this subject, and he agrees that journaling is important.  He points out that the problem with most stories and allegations in custody and visitation modification cases is that they are coming from memory. This creates two problems, one they cannot recall the story exactly, or most importantly they cannot put a date on it. This creates unreliability in the evidence. It also creates a he said, she said scenario.

Client: "My ex never exercises his visitation and when he does, he is always late."

Lawyer: (Drooling at the excellent information he is about to get) "Can you get me a list of all those dates he missed and the dates and times of when he was late?"

Client: "Well, I do not remember all the dates, but it is pretty much a couple times a month."

Lawyer: (Rolls his eyes and sighs) "Okay well try to put something together."

The way to combat this is to keep a journal of everything involved in your case or your child's life.  If the parent is always late to pick up the child, document it. If the parent is constantly missing visitations, document it. If your ex says something particularly nasty on the phone in front of the child, document it.

It doesn't have to be anything elaborate, just a simple calendar to refresh your memory down the road. Imagine you get in a courtroom and you are alleging that the other parent is constantly missing visitations. The other parent says that is not true, but does not really seem to have anything to back up their denial. On the other hand, you have your journal and know the exact dates, times and what was said for each missed visitation and can list them out for the judge in detail. Who do you think the judge will believe?

A simple little task, kept up with over time, can have such a HUGE impact on your case.  Remember not to be TOO detailed, as this is not a diary.  Remember that you could be required to give the other side a copy of your journal if you use it at a hearing. If you know that the other side could be reading it, that will help you keep it simple.

Source:  "Journaling in Texas Divorce and Modification Cases" by Chris Schmiedeke, published at his Texas Family Law Blog.

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Judges are particularly annoyed by lawyers (and their clients) who:

• ignore the rules of court;
• fail to prepare;
• arrive late;
• repeat themselves;
• act rudely;
• make frivolous arguments;
• mislead the court;
• argue with the judge;
• refuse to talk settlement; and
• request a last-minute continuance.

Source:  "Sure-Fire Ways to Alienate the Trial Judge" excerpted from Convincing the Judge: Practical Advice for Litigators by Cecil C. Kuhne III.

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This week's eNewsletter from the ABA Section of Family Law contained the following article of tips for better presentations.  I believe that these tips can assist any lawyer in making more effective presentations.  Note:  The article focuses on PowerPoint, but I believe that Apple's Keynote is far superior in every way (and most experts seem to agree).

The practice of law is regarded as a writing profession, but many attorneys find that their key professional moments come not in front of a keyboard, but in front of a live audience. Whether presenting an opening argument at an important trial, leading parties through a mediation session, or teaching a continuing legal education course, lawyers are frequently called upon to take a complex subject and compress it into a concise and coherent narrative. To accomplish this, many attorneys turn to Microsoft PowerPoint, the ubiquitous presentation software.

While a well-crafted set of PowerPoint slides can help build and strengthen a presentation, a poorly crafted PowerPoint can leave your audience confused and frustrated. Here are a few tips to make PowerPoint a more effective communication tool in your practice:

• Ditch the bullet points. Slide after slide of bullet points will lead to an audience that's either ignoring the slides or reading the slides and ignoring you. If you need to use text, stick to short words and phrases in large, clear print.
• Avoid overly complex graphics, charts, and screen shots. Even on a large screen, it's unlikely that your audience will be able to decipher and digest the image in the brief time it is shown. If the image is vital, supply a printout.
• Do use relevant photographs or simple graphics. Good, memorable images will help your audience retain what you're saying after they leave the presentation.
• Know your audience. Avoid legal jargon if you're speaking to a lay audience, and avoid over-simplification with an audience of attorneys.
• Know when not to use PowerPoint. PowerPoint creates very linear presentations which can quickly become confusing if the presentation elicits discussion or questions. Also, PowerPoint can seem a bit too polished for some situations; avoid it when you want your presentation to feel unscripted.
• Consider upgrading your software. PowerPoint 2007 (2008 on OS X) is a significant improvement over previous versions of the software, and it will allow you to produce more visually appealing presentations. If you're a Mac user, also consider Apple's Keynote software.
• Most importantly: have something meaningful to say. If a slide isn't meaningful, don't use it.

Source: ABA Legal Technology Resource Center by Joshua Poje, Research Specialist

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I recently represented a man in a contested divorce and child custody case.  The facts were strongly in our favor, partially due to the woman's questionable conduct during the marriage.  During the trial, things continued to go in our favor and against the woman, and it was obvious to everyone in the courtroom that her frustration level continued to increase.

Upon direct examination by the woman's attorney, she began to list her many complaints against my client.  After several minutes of this, she proclaimed that he was "the devil."  She paused for a moment, and she then said that the person sitting beside him (me) was "the devil" too. 

Now, I have been called many names during my professional career outside of court.  In fact, I dare say that I have been called pretty much every name under the sun.  Practicing in an adversarial system, people typically either love me or hate me -- depending on whether they were my client or the opposing party.  However, this was the first time that I have been called a name like this on the record. 

Of course, word has quickly spread of this new moniker, and I had another attorney greet me last week by stating "well, if it isn't the devil himself" (followed by a quick grin and chuckle).  I have warned the court reporter that she might be inundated with requests for that portion of the transcript.  My wife has also enjoyed this new "title" for me at home as well.

When the trial judge was announcing his decision at the end of the trial, he listed the wife's demeanor during trial and her obvious intense hatred of her husband as reasons that he awarded custody to my client.  In fact, the judge stated that he believed that if custody was awarded to the wife, she would take steps to insure that the children were alienated from their father and that she would work to destroy their relationship with him.

There are two morals to be learned from this story:

1. Your bad actions and/or misdeeds can (and usually do) come back to haunt you at trial.  I typically advise my clients to assume that they are always being recorded and not to do or say anything outside of court that they wouldn't want the judge to see/hear.
2. Even if things go against you during trial, you should remain calm, cool, and under control.  It will never benefit your case to call the other party names from the stand.  Instead, it will almost always backfire and result in you looking worse in the judge's eyes.

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