Brian D. Perskin & Associates

HOW TO ACT DURING THE CASE AND IN COURT

There are a few mistakes that poorly advised litigants constantly make in their divorce proceedings. First, never speak to the opposing lawyer in the hallway of the Courthouse, as this never leads to a productive conversation. Never “cc” the opposing lawyer in emails. All communication should come from your lawyer. Additionally, never show any emotion or attitude to your opposition. Do not give the opposition a view into the type of person you are, as this can only give them an advantage. Do not disclose the witnesses you may call if your case proceeds to trial. You should always end the conversation at good morning.

I take careful measure in not speaking to my client within earshot of the opposition. It is natural to be emotional during this stressful time in your life. It is natural to argue with your own lawyer and show your own lawyer your true emotions. However, the opposition should have as little information about you as possible. If you are a nervous person, or tend to get angry quickly, there is no reason for the other lawyer to observe this. Inevitably, if you become angry or upset in the hallway of the Courthouse, the opposition will use your emotions against you before the Judge.

The opposition may also see your emotional state as a weakness and counsel your spouse not to settle, knowing you would be a terrible witness at trial. Unfortunately, some people are bad witnesses. They may get angry quickly, display their nerves, or become defensive when asked even simple and straight forward questions. Never give the opposing counsel any insight into what type of witness you would be. If you act appropriately in Court, you provide the opposition with as little information as possible.

Even more importantly, never under any circumstances speak directly to the Judge while on the record. Never interrupt your lawyer when they are speaking on your behalf in open Court, and never interrupt the other lawyer if they are making an argument to the Judge. Your role at all Court proceedings is to sit and observe. You can and should take notes and discuss these points with your lawyer either quietly if the Judge gives you time in Court or outside the presence of your spouse and his/her lawyer.

For the most part, Court appearances are status conferences. They serve to allow the Judge to monitor your case and ensure all the discovery is complete and that settlement negations are ongoing. Unless a specific motion is on the calendar that the Court scheduled for argument, there is no reason for either lawyer to make arguments before the Judge. The Judge should only consider written motions and their responses. Many litigants, as well as lawyers, get sucked into arguing points in open Court that are not pending before the Judge. A good Judge will dismiss the argument and tell the lawyer to file a motion to be heard; however, some Judges will listen. A lawyer’s job is to practice law. A good lawyer should know not to get sucked into an oral argument before a Judge. Any responsive argument should include a general denial and an explanation to the Judge that when a proper motion is filed before the Court, your client will file responsive papers that will outline his/her position. I never give any information away that could help the other side. If you or your lawyer argues a point before the Court without a pending motion filed, you only needlessly give away information to the other side.

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