by Administrator | Sep 28, 2016 | Quick Tips
Ten Tips for Successful Family Law Declaration Drafting
Many aspects of family law litigation are decided based on declarations of parties and witnesses. These documents are sworn statements that are relied upon almost exclusively by the bench in the critical first stages of family law cases, both in entering ex parte orders and the temporary orders that will govern a party’s financial affairs and parenting issues during the pendency of a case. Since family law cases can often take a year or more to resolve, drafting successful declarations to support these important initial requests is crucial to your case. Here are ten tips to bear in mind as you prepare to draft a declaration in a family law proceeding:
1. Tell the Truth
A declaration is a written statement made under penalty of perjury. Perjury is a Class B Felony in Washington State, and is but one serious potential repercussion to making a false statement to a court of law. Civil Rule 11 also mandates both truthfulness in statements, and a reasonable inquiry by a declarant to ensure that statements made are in fact true. Perhaps most commonly, it is simply a matter of credibility. A single dishonest statement, once discovered, will shatter your credibility with the opposing party and attorney, and the tribunal. Tell the truth, and skip the grief.
2. Know Your Audience
As with any writing or speaking, it is important to remember who you are talking to. In the area of family law, declarations most often end up in the hands of Court Commissioners. These court-appointed judicial officers manage extremely busy caseloads, often hearing hundreds of cases a day. They’ve “seen it all” in a general sense, but at the same time seldom do they have more than a few minutes to review any specific case and form an initial impression before the case proceeds to argument. Going into a hearing, they will only know what you have told them via your declarations. Commissioners and Judges appreciate succinct, specific factual explanations that are relevant to the legal issues at hand.
3. Organize for Effect
Given the limited time a Judge or Commissioner will have to review what you write, organization is critical. Break down the facts you need to get across to your reader by legal issue. For example, in a typical divorce case at the temporary order hearing stage, you may need to address parenting, substance abuse, domestic violence, child support, maintenance (or alimony), and property use. Each of these issues carries its own legal standards and requirements, but your only job in drafting a declaration is to establish the factual requirements to meet those legal standards. Outline the topics you’ll discuss before writing anything specific. Use topic headings and sub-headings to indicate which legal issue you are discussing. Some issues are best organized from the most recent events and then backwards – especially when seeking protective or restraining orders – while others should start at the beginning of the story. By following a consistent organization method, you’ll help the trier of fact understand your situation.
4. Be Specific
Colloquially, we are all used to making generalizations and over-statements in our everyday speech. In a declaration, such language can be self-defeating. Judges and Commissioners can only make factual determinations based on specific incidents, and only a set of specific incidents can establish a pattern or course of conduct. Sentences that begin with words like “he always…” or “she used to…” are not helpful to the tribunal, and often hamper your credibility. Stick to specific facts and incidents, and only after laying out a clear set of them refer to it as a pattern that someone “always” or “often” follows. Even if you can only recall a rough time-frame in which an event happened, it is useful and more credible to relay it.
5. Stay Relevant
Being organized and specific are critical elements to a successful declaration, but staying on point and relevant to the issues at hand is just as important. You don’t need to state the law, but it is helpful to be mindful of the law that will be applied to your case. In any given paragraph, state only those facts that will help the court decide the issue you are addressing. Avoid the temptation to tie everything together, or to wander into other problems or grievances, as your reader may choose to skip reading if she can’t understand why you’re jumping topics. Also, many Washington counties, including King, Pierce and Snohomish, have set page limits for the sum of declarations each side can submit. This necessitates careful use of the space you have.
6. Don’t Argue With the Opposing Side
In family law more than any other area of law, it is easy to get dragged into a fruitless ‘he said – she said’ battle. Unfortunately, at some point during a contested family law proceeding, you must expect the opposing party or attorney to say something you find either insulting or untrue, or both. It’s important to refute incorrect factual assertions in a responsive declaration, but it’s equally important to avoid the pitfalls of a ‘blame game,’ or to make unfounded accusations yourself. Washington is a ‘no fault’ divorce state, and issues like marital infidelity or failing to fulfill promises are only relevant at all if they affect parenting. Moreover, Judges and Commissioners often have to split the difference in making these quick factual determinations, and if you’ve spent your page limit refuting what the other side has said about you, the trier is likely to come away believing at least some of it was true. Focus on asserting your own relevant facts to establish your credibility, and drive the narrative rather than reacting to the other side’s version of it.
7. Write Naturally; Make It Easy to Read
While Judges and Commissioners are skilled at reading through to people’s intent, and aim to apply justice evenly to folks from all walks of life, they are still human. If you include grammar or spelling mistakes in your declaration, it may distract from an important point you are making. If it’s bad enough, it may make your declaration unreadable. That said, it is also important to write naturally to the way you speak. Nothing is more distracting, or quickly set down, than a misguided attempt to write in ‘legalese.’ Even lawyers can sound silly by writing a few too many ‘hereinafter’s.’ Try to write something you would enjoy, or at least could tolerate reading. Start your paragraphs and sentences with signals as to where you are going, and keep your paragraphs brief to break up the page. A well-written declaration is one that is easy to read, and vice versa.
8. Put Emotion Aside
Family law invokes some very emotional reactions from the parties involved, and often even the attorneys. Family law issues happen most often when people are at their worst, most distressed or troubled. Realize before you even start that rehashing a history of past abuses or neglects is likely to stir these emotions further, and prepare yourself. Write calmly, and remember the Judge or Commissioner isn’t going to share your visceral, emotional reactions no matter how well you express them. Present the facts, and allow them to correct the situation as best they can. Pleas for justice appear theatric, just as pleas for mercy can seem desperate. If establishing a parenting plan is an issue, strong expressions of emotion may even reflect poorly on your ability to be a stable, secure parent.
9. Draft, and Draft Again
After you write your first draft, step back and take a break, perhaps even sleep on it. Come back to it with a fresh frame of mind, and read through. Changes and additions that will improve your declaration will practically jump off the page. All accomplished writers learn to re-write, over and over again. Even a second draft will vastly improve the quality, structure and overall effectiveness of your declaration.
10. Seek Help
Having another set of eyes look over your declaration is even more important than re-drafting, and the two usually go hand-in-hand. If you hire an attorney, they will want to re-draft what you have written. Some will even start writing it for you. In my practice, I prefer that my clients and witnesses create the initial drafts of their declarations, whether it is through one comprehensive attempt, or a series of emails back and forth. Your facts are what drive your case, and you know them better than anyone else! Declarations crafted solely by attorneys are formulaic and obvious, and seldom accomplish anything. If you cannot hire an attorney, consider seeking help from a paralegal, legal aid clinic, or court facilitator. Even a friend who you know to be a good writer will probably improve your declaration in some way.
by Administrator | Sep 28, 2016 | Quick Tips
Top Ten Ways to Save Money in Divorce
1. Choose your Divorce Attorney carefully
The best way to get feedback on an attorney is to get a referral. Ask your friends and colleagues for input on local attorneys. If you don’t have a referral, many family law attorneys offer free consultations. Meet with your prospective lawyer and determine if they are right for you.
2. Don’t be mislead by hourly rate
Divorce Lawyers with lower hourly rates may bill more hours and cost you more than a seasoned attorney with a higher hourly rate. Look for experience and efficiency rather than rate alone.
3. Be organized
If you bring in a suitcase full of documents for your attorney, it is going to take many costly hours for them to go through it all. Only bring the key documents that your attorney needs to review.
4. Be efficient in your communication
The more succinct you are in your phone, e-mail, and attorney client meetings, the more money you are going to save.
5. Don’t let your emotions rule your business sense
It’s totally understandable that personal items have special meaning. You may want to consider if all personal items are worth fighting over. If there is a coffee table that would easy sell for under $100 on Craigslist, you may not want to spend $1000 arguing over it.
6. Follow your Divorce Attorney’s advice
Attorneys advise their clients based on extensive experience and not following their advice may result in unnecessary motions and additional litigation. For example, if there is a restraining order in effect to not sell any household items, it would not be a good idea to sell them on eBay.
7. Provide full disclosure
If you do not provide full disclosure, it could result in costly discovery motions. For example, if your wife knows you have three bank accounts and you only provide one there may be additional actions that may increase the costs of your divorce. The act of not providing full disclosure may also jeopardize your credibility with the judge.
8. Follow court orders
If a court order is in place, take it very seriously. If you are thinking about an action that may be in violation of a court order, don’t take the action until you have consulted with your Attorney.
9. Hire the proper experts through your Divorce Attorney
There are experts that can be hired for valuation purposes. Experts may include investigators, forensic accountants, and psychologists. If you have real reason to believe that your husband is hiding his business income, it may be worth the added cost to hire a forensic accountant. Talk to your attorney to determine if this makes sense for you.
10. Think of your assets from a long term perspective
If the family home is up for negotiation in your divorce, consider the current value (price of the last home sold in your neighborhood minus what you owe) and determine if it’s worth fighting for. If your home has decreased in value and you know you want to live in it for many years, it may be a good time to purchase the house from the spouse as the value will likely increase over time due to current market conditions. If stock options or retirement accounts are being divided, think about their current value compared to their possible future value.
by Administrator | Sep 28, 2016 | Quick Tips
Tips for Preparing for Mediation
In most counties, some form of dispute resolution is required before your trial date. The most common form of alternative dispute resolution (ADR) is mediation. Although some mediations take place with all parties in the same room, most mediators prefer to have the parties separated in two separate rooms and the mediator will go from room to room to discuss your case.
It’s important to note that offers of settlement are not admissible as evidence in court. Therefore, information shared regarding settlement offers in mediation are confidential. This is not to say that facts learned during the course of mediation cannot be used at trial. Anything you say at mediation outside of settlement can be used against you.
Don’t be shy regarding asking the mediator to leave the room if you would like to discuss an issue privately with your attorney. Good mediators will understand and will allow you to consult with your attorney at any time.
Some clients find mediation more difficult than deposition because the mediator is judging your facts. It’s important to avoid becoming frustrated within the course of mediation even if the other side is behaving unreasonably. Even if you do not settle, critical information can be learned during the course of the mediation that may lead to settlement in the future or may be useful at trial.
Do not forget that the mediators job is to obtain settlement. It is up to you and your attorney (not the mediator) to determine if the settlement is fair.
If there is something you would like the mediator to know that you do not want the opposing party to know, most mediators will keep information confidential but you must ask them to do so. It is important that you specifically ask the mediator about his or her policy regarding confidentiality of issues. You want to avoid disclosing facts to the mediator without assurance that the fact will not be shared.
by Administrator | Sep 28, 2016 | Quick Tips
Five Tips For Attending Family Court
Everyone gets nervous about going to court, even attorneys and sometimes even judges. In my experience, knowing what to expect helps people prepare for any stressful situation. Whether you are attending court with your attorney, or appearing on your own behalf, here are a few tips to help make your trip to the courthouse a little more comfortable.
1. Preparation
First and foremost, always arrive at least 15 minutes early for a hearing. Some judges care about punctuality more than others, but you should always assume your case will be called first, at the scheduled time. Know your route to the courthouse, where you will park, and what courtroom you will be in. Be prepared to go through security screening as you would at the airport. For non-attorneys, attire is not as important as it used to be, but a shirt and tie for men and business-wear for women never hurts. Bring one more copy of all your paperwork than you think you will need, as somehow you always need one more. If you’re meeting your attorney or another person at the courthouse, make sure you’ve specified where.
2. Courtroom
Unless you are filing a new case or attempting to obtain an ex parte order, you should proceed directly to the appropriate courtroom. Enter quietly as other hearings may be going on. Many court calendars have a sign-in sheet, or require each party to check in with the clerk. Some courtrooms have seating areas assigned for each side of the case. Make sure your phone is off, take a seat and wait until your case or name is called. If you’re with other people, try to whisper, as some courtrooms have microphones recording everything said during proceedings. Remember, the walls have ears – something said while the judge is away, or even out in the hallway, can be repeated by a clerk, bailiff, or anyone else who happens to pass by.
3. Presenting Your Case
When your name or case is called, stand up and walk up to either the front of the bench, or the lectern or counsel table (every courtroom is a little bit different). State your name if not prompted by the court. Generally, for contested motions, the moving party will speak first, followed by the responding, and then the moving party will have a brief chance for rebuttal. If you’re in ex parte it may be just you, and you’ll need to start by stating your name, case name and number, and then clearly and succinctly why you are there, and what you are asking for. If there is another party there, you should never interrupt while they are talking except to make a legal objection. You should keep your attention on the judge, and avoid gesturing or otherwise reacting to what they say. You won’t win any points by shaking your head, sighing, or muttering under your breath. Address the judge as “your honor” or “Judge,” and avoid speaking to the judge in the second-person (“you”). The dignity and decorum of the courtroom is something we all have to work to maintain. Once both sides have made their argument, the judge will usually decide the issue immediately.
4. Wrapping Up
When the judge announces her decision, take careful notes of what she is ordering. Once the judge has made her ruling, it is generally the job of the parties to present a written order for her to sign that conforms to her oral ruling. If you’re going to ex parte you will need to have an order prepared before you go in, but at other times you have to fill one out from a blank form. Ask the clerk if you cannot find a form. Even if you lose your motion, it’s important to stick around and draft an order, or review what the other side drafts, as people often try to insert additional language that was not ordered. Once finished, hand the order to the clerk to give to the judge. The clerk will usually make copies of the signed order for you if you need them, or give the original back to you to do so. If you get back the original order, be sure to file it with the clerk’s office after making your copies but before leaving the courthouse.
5. Special Considerations
If you have a no-contact, restraining or protective order in place and expect the person restrained to be at court, it’s a good idea to let a court marshal know of the situation. If you’re concerned they may hurt or harass you, you can ask the marshal to stay with you, and even to escort you back to your car. The courts are eager not to allow parties to feel threatened or intimidated at court.
Also, do not bring children to court. You will never get sympathy from a judge because they’re there, and very often the exact opposite. Plus, they can be an unnecessary distraction when you have important things to think about. If you cannot find someone to watch your child and absolutely must bring them to court, try to talk to them ahead of time about how important it is to stay quiet in the courtroom, and give them a silent activity to do while there, like coloring or drawing.
