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Thursday, August 28, 2014


Nobody likes attorneys. I can't say that I blame them. We seem to profit from the worst that life has to offer, death, wrongful death, serious injury, divorce, criminal charges, and fights with family or neighbors to name a few. The list is almost infinite. All of these circumstances involve a lot of feelings and emotions. Anger, pain, frustration, and betrayal are all at the top of the list. These are not the ideal times to make the best decisions. What you probably don't know, and what most attorneys will not tell you, is that filing a lawsuit is usually not the best or most efficient way to resolve your problems. The process of filing a law suit and going to court by its very nature is SLOW, EXPENSIVE, EMOTIONALLY DRAINING, FRUSTRATING, IMPERFECT, A LOT OF TIMES UNJUST, AND CAN REALLY BE A GAMBLE. When you come to an attorney you are looking for someone who will understand your situation and give you the very best advice possible, preferably without concern for what is in their own best interest. You do not want someone who will simply tell you what you want to hear, or that you have a slam dunk case just to get a retainer. You need an attorney who will give you an honest evaluation of your case, let you know your chances in court, the pros and cons, what it will cost (not only upfront but in the end), what are the problems or weaknesses in your case, and a realistic estimate of how long it will take.

If you don't have a good case, why not hear that upfront before you pay a huge retainer based on unrealistic expectations. Some attorneys will  over sell the strength of your case, take the retainer, then let you down slowly as the case progresses. It's always better to have a realistic evaluation and know what the strengths and weaknesses are and then you can make an educated decision about whether you want to expend the time, money and energy to pursue the case. Sometimes, I have potential clients who are upset when I shoot them straight about their case.  They want to shop attorneys until they find one who will tell them what they want to hear. They think I don't want to fight it out in court, or that I'm scared when I tell them the obvious problems with their case and am honest about the natural pitfalls of the process. The reality is that I play square. I shoot straight. I love going to court and I love a good argument! It's my job. It's how I make money. When I take on a case, I want a client who knows what I know and has made an informed decision. I have nothing to gain and everything to lose by being honest with potential clients about their case.

There are a number of pitfalls in cases. In a custody case there are so many ways to lose your case that they can't all be listed. Some major problems include cohabitation, drug use, drinking, keeping the child from the other parent without a really good reason, misuse of social media, and too many more to mention. A good attorney will find out if any of these are potential issues and give you good advice. An attorney might have to tell you to stop doing some things you have been doing. These might be things you don't want to hear, but you need to hear them and you need good advice about how to fix any mistakes that have already been made. You need honesty, candor, and reality. If you don't get brutally honest advice, it will hurt you in court, and to add insult to injury it will have cost you a lot of money and time to do it.

Tuesday, August 26, 2014

Its My Trial Today. What Do I Need To Know About Court And About Testifying In Court.

Judges are professional lie detectors. Thats what they do. Its their job day in and day out. For years they have been weighing and judging the credibility of witnesses. They can smell deception from a mile away. If you believe you can come into court and snow a judge think again. Your best bet when testifying in court is candor, honesty, sincerity. Be real and be genuine. If you have messed up own the mistake and come clean and tell the judge how and what you are doing to fix the mistake. If you do this you will find credibility. If you don't you risk not only losing credibility but you also risk being found in contempt and hauled away in handcuffs like the opposing party in a case I tried not too long ago. The opposing party was caught lying on the stand. Not only did he go to jail but had to pay attorneys fees as well. You never go wrong telling the truth and being real!

When you are on the witness stand make sure you have the proper demeanor. Attitude can say a lot about you. Most of our communication is nonverbal. Make sure you are polite, courteous, and respectful to the judge and the opposing attorney. Don't let yourself become frustrated or flustered. Stay cool, calm, and collected. When the opposing attorney is asking you questions listen carefully to the question you are asked and answer only the question you are asked. Attorneys know how to talk and certainly know how to ask questions to find out what they want to know. Don't volunteer information that you were not asked about. If a point needs to be elaborated on then your own attorney will ask you to explain.

Make sure you dress appropriately for court. If you are not sure what would be appropriate to wear make sure to ask your attorney. Court is not a place to make a very loud or extreme fashion statement. Especially in custody cases you want to be conservative in what you wear and in your appearance. Generally speaking exposed body piercings are a bad idea as well as extreme, vulgar, or violent looking tattoos. There was a case where a party got on the witness stand and had an exposed tattoo of a bullet on his arm with his ex-wife's name tattooed inside the bullet. I would have counseled him to cover it up. 

Generally speaking what other people say or have told you is not admissible in court. The major exception to this is what the opposing party has said. These type of statements are called hearsay. They don't have to be verbal statements. They apply to texts, emails, or other documents. As a general rule when you testify in court you cannot tell the judge what someone else has said unless it is the opposing party.

Make sure your attorney meets with you before court and goes over with you what they will ask and what they expect the opposing attorney to ask you. Ask them what to wear. Ask them if the judge has any pet peeves. Make sure you know where the court house is, what time to be there, and what you can bring with you into the court house. Make sure you know what to expect and are prepared to testify. 

Judges like witnesses and parties who are reasonable, rational, level headed, respectful, truthful, cooperative, candid, and who look respectable. Witnesses or parties who lose their cool, get frustrated, raise their voice, are combative, speak with an attitude or tone, or who are not honest with the judge lose credibility. Don't split hairs. Call a spade a spade. If you slipped up admit it quickly and most of all let the judge hear it from you first instead of not mentioning it until the opposing attorney asks you about it.  From the minute you walk into court judges are sizing you up. You want to make a favorable impression. When you don't make a favorable impression or you lose credibility it is very bad for your case and will very likely effect the outcome of the case.  Hopefully you won't find yourself in court but if you do these tips will help you out.

Wednesday, September 22, 2010

I have just been served with divorce papers what should I do?

1. See an Attorney immediately!

If your spouse has taken the steps to hire an attorney and have you served with divorce papers they are very serious about getting a divorce and you need to make sure you understand your rights and your obligations. One of the first things you need to know is that you must normally file a response to the papers you were served with within 20 days of being served. If you do not then you could forfeit some of your rights.
        What are these papers I was served with?
You should have been served with a Summons and Complaint. A summons is a legal document which explains your obligations upon being served. The Complaint is the formal legal document which is filed at the court house and begins the divorce suit. The Complaint will usually state the legal foundation for the court having jurisdiction and venue over the case and spells out what your spouse is asking for in the divorce. You may  be served with additional papers depending on the specific facts and circumstances of your case. These other papers may include an emergency order granting temporary custody of your children to your spouse until there can be a hearing. Whatever you have been served with it is important that you go see an attorney immediately so that you can have a better understanding of your legal rights and obligations. Normally you will receive a free initial consultation from an attorney where you can get some of your questions answered.

2. Begin to gather all helpful information.

This will include your financial information including bank statements, deeds, titles, pay stubs, retirement account info, loan information,ect. This information will be helpful to determine  what your assets and debts are and how they will be divided. As well as to determine the need for any spousal support and other issues.

Medical records for you and your children.
School records including report cards and attendance sheets.
Pictures with you and the children.
Any other documents that might help show your involvement with the children and your fitness as a parent.

3. Do not try and keep the children from your spouse.

If you have children and there is no history or fear of abuse or violence then you will want to make sure you do not attempt to keep your children from your spouse. The court does not look favorably on this and usually will hold it against you in making a final custody determination. The judge will want to grant custody to the parent who will make sure the children maintain a good relationship with the other parent and will be reasonable with regards to visitation. If there has been abuse or violence or you have a real fear of physical harm then you will want to seek a restraining order or an order of protection immediately. Without either a restraining order or order of protection or some other court order to the contrary you will not have a legal right to prevent your spouse from seeing the children. On the same side of the coin your spouse cannot keep you from seeing the children.

4. Do not involve the children in the conflict.

Judges do not look favorably on this either. The younger the children the worse it looks. More importantly it is not healthy for you children to be involved in grown up discussions or arguments or to feel like they must choose between parents. All discussions about the divorce should be between you and your spouse and had out of the hearing and presence of the children. The judge will likely instruct both you and your spouse that your children should never hear any negative remarks from either of you about the other.

5. Do not do anything that could later hurt your case.

These include all of the following and many more too numerous to list:
a. Any domestic dispute whatsoever. Never put yourself in a position where the police are called because of your actions. If you cannot control your temper walk away before it gets that far.
b. Being charged with any kind of crime. You do not even need to be convicted for it to have a possible negative effect. Stay out of trouble!
c. Receive certain types of traffic violations such as speeding, careless driving, failure to have your child in a car seat, DWI, ect
d. Admit to your spouse (in person or over the phone) that you have any sort of trouble, problem, or issue that could negatively impact your case. You never know when they are recording the conversation!
e. Post things on the Internet, including facebook, myspace, personal web page, blog ect. that could negatively impact your case. Pictures of you drinking, drunk, partying, or messages that talk about such things or include inappropriate language ect.
f. Get involved with someone else romantically. In most cases the judge will frown on any relationship while you are still married even though your divorce is still pending. This will hurt your chances of getting custody. Moving in with someone else is especially bad.

6. Keep a journal or record of events.

Write about all of your activities and phone calls with the children including dates and times.
Write down any and all refusals by your spouse to see or talk to the kids.
Write down anything that you think might be helpful to your case including observations and conversations including dates and times.

7. Be civil and put your children's needs first.

Divorce and custody proceedings can be very expensive. Anything you can agree on will save you money, time, and frustration. If you agitate your spouse they may dig in their heels just to be spiteful and that will end up costing you money. Being civil will help you get what you want and get it faster.
It is always difficult for children and so often we as attorneys see parents who make decisions based on selfish motivations and not what is in the best interests of their children. Usually those decisions come up in court and they turn against you in the eyes of the judge.

Tuesday, September 21, 2010

Grounds and Other Requirements for Divorce In Arkansas

            Technically speaking there is no such thing as a “no fault” divorce in the state of Arkansas.  In order to obtain a divorce in Arkansas you must have "grounds" for divorce.  This means that your spouse must have done something wrong in the eyes of the law, such as being habitually drunk, being convicted of a felony, cheating etc.  If you and your spouse have lived separate and apart without cohabitating (having sex) for 18 consecutive months you can obtain a divorce without proving that your spouse has committed some “bad” act.   The statute that governs grounds for divorce, Arkansas Code §9-12-301, lists the following grounds: impotency now and at the time of the marriage (I have only seen one divorce granted for this ground), conviction of a felony or other infamous crime, habitual drunkenness for one year, certain violent acts, adultery, being separated for eighteen (18) consecutive months, and probably the most common ground for divorce, general indignities.
            General indignities includes various degrees of intolerable treatment by the offending spouse and include the following list of offenses spelled out by the Arkansas Supreme Court "rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumeliousness, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate, alienation, and estrangement." Grounds must be proved in court and this is normally done by testimony of the party seeking the divorce. Additionally the statutes require that the grounds must be corroborated by an additional witness.
        In addition to grounds there is a residency requirement. In order to obtain a divorce you must have lived in Arkansas for at least sixty (60) days prior to filing for divorce. There is also a statutory requirement that thirty (30) days must have elapsed between the time of filing for divorce and when the divorce is granted.
        The document which is filed that begins the process for divorce is called a Complaint. The Complaint is filed at the court house in the county in which you live and there is a filing fee charged by the circuit clerk of $165.