Representing yourself in Court? Good luck with that.

representing yourself in family courtI have had potential clients ask me, often with a cautious hope, whether their particular type of legal matter, is something that they can handle for themselves.  It is a question one would never ask a physician, an electrician, or an auto mechanic, but one that I believe, is often asked of attorneys.  I tell those individuals that the answer to that question depends on how comfortable they are with understanding and researching the law, presenting evidence, cross-examining witnesses, rebutting legal arguments, and making a persuasive argument to the judge.  Really, though, it is how quickly a person can gain and condense the specialized education and 26 years of experience that I have, into the time that person has to prepare for their hearing.

Recently, I appeared in Hillsborough County Court, in Tampa, for a Small Claims Pretrial Conference before Judge Gabbard.  My client was being sued over a nominal credit card debt, the type of case that over the past five years, has been prosecuted with greater and greater frequency.  Like many different types of court divisions, such as traffic, criminal or even some family divisions, the court calendar was a cattle call.  Of that the cases on that calendar, two individuals had decided to represent themselves.  The first was being sued, on behalf of a debt to a person who had owned the company he had recently purchased.  As the plaintiff was not suing the company, only the former owner, this was a debt for which the individual standing in Court was not responsible, and legally, could never be held responsible.  The plaintiff’s attorney was not about to point this out to the defendant, though he did try to change the subject whenever the judge tried to imply to the defendant—judges cannot give legal advice to either party, that the plaintiff had sued the wrong person.  Without any help or advice from an attorney, the defendant proceeded into a side room of the courtroom, and began discussing the terms of a repayment plan for settling a debt that he did not owe.   The second, unrepresented litigant, was a young woman suing someone on a debt.  In explaining to the judge why she had not gotten service on the defendant, she expressed frustration that the Sheriff’s process server did not do more to serve the defendant, when she was convinced the address she had provided was correct.  Again the judge could not advise this plaintiff, all she could do was reschedule the case for another pretrial conference, and tell the plaintiff to make sure she obtained service on the defendant.

In less than five minutes after their hearings, I told each of these strangers what they needed to know before and for the next time each comes to Court—perhaps to the irritation of the collection agency attorneys gathered in the Court room.  The two pro se litigants were fortunate that I did so, but the point is, neither of these individuals had any business going into Court without an attorney, or without even having consulted an attorney.

While these situations played out in the civil division of the Hillsborough County Court, I have encountered similar situations in St. Petersburg and Clearwater, especially in the context of Family Law cases.  I think in every domestic violence calendar (the hearings in which a Family Law Division Judge rules on entering or dismissing injunctions for the protection against domestic violence (commonly known as, “restraining orders”), that I have attended, at least one unrepresented respondent agreed to an injunction being entered against him.  Similarly, at least one unrepresented petitioner agreed to dismiss her attempt to get an injunction.  In those situations, no testimony is taken, the judge moves onto the next case, and I am not sure the individual parties know exactly what just happened.  And for those injunction cases in which one party has an attorney and the other does not?  There is clearly a mismatch, as the one without the attorney is required to follow the same procedural and evidentiary rules that govern the actual attorney.  As long as the lawyer is on his or her game, the pro se litigant will be kept from testifying to what someone else told him or her (hearsay) and kept from showing the judge what some law enforcement agency wrote about the incident (more hearsay).  From a professional standpoint, this makes for a very effective and satisfying presentation on the part of the attorney, and a very ineffective and even frustrating presentation on the part of the person representing himself or herself.  Why then, do pro se litigants go into that dark night so easily and willingly?

I am sure finances have much to do with it.  But given the number of attorneys out there, it is hard to believe a party cannot find an attorney whose fee requirements, or payment plan, can fit their budget.  And even if one cannot afford to have an attorney there beside them, at least they should consult with one beforehand, to get a better idea of their rights and how to handle the hearing.  I am willing to bet that almost every private and practicing attorney in a county, state or country, will sit down with a potential client, upon request, and advise them of their rights in the area of the attorney’s expertise.  Depending on the attorney and the attorney’s experience, it might cost a consultation fee, but the knowledge the person receives, will be well worth the value—both when walking in the courtroom, and when walking out.

Mark Hanks

Your Family Lawyer

Attorney Hanks, P.A.

www.attorneyhanks.com

Copyright 2014

 

 

Land mark divorce case in making between the Prest’s coming before the Supreme Court

The Supreme Court is set to hear a landmark divorce case concerning on assets held by spouses companies after a Court of Appeal (CoA) ruling last month.

The case of the Prest’s revolves around the question of whether companies belonging to spouses can be ordered to pay assets in a divorce settlement.

Family lawyers for Yasmin Prest, the ex wife of oil tycoon Michael Prest are contesting the decision given by the CoA on the 26 October, which ruled that companies owned by Mr Prest would not be made to hand over assets totaling £17.5m to his ex-wife, in a judgment which was criticised by critics saying that it would enable wealthy spouses to protect their assets in divorce proceedings.

The ruling by CoA came after justice Moylan ordered Mr Prest to hand over the £17.5 sum last year. And suspecting that Mr Prest would not comply with the orders as he had not provided a frank and full disclosure, justice Moylan had ordered 14 of the businessman’s properties in theUKand abroad to transfer assets to Mrs Prest as part payment of the award.

But that ruling was overturned last month when the companies won an appeal against Moylan’s ruling, on the basis that the assets belonged to the companies, which were separate legal entities to Mr Prest.

The October ruling divided the CoA bench two to one, with commercial judges Justice Patten and Justice Rimer finding in favour of the companies against Justice Thorpe, who in his dissenting judgment said that if the law permitted Mr Prest to retain assets in this way it defeats the Family Division judge’s overriding duty to achieve a fair result.

In his ruling, Rimer argued against Thorpe, and said that primarily their were no findings which could justify the finality except that the properties were part of the assets of, and belonged beneficially to, the companies that respectively controlled them.

Commenting on the October decision, family law lawyer for Mrs Prest said that it was a great pity that years of case law and practice which had enabled family law judges to do justice between divorcing couples have been overturned by a non-unanimous decision of the CoA. Devious men who want to avoid making fair provision for their wives would rejoice at this decision.

Another family law barrister added the decision was a disappointing one for many wives who confront on divorce a tangled web of companies used to shelter their husbands’ wealth.

He added that the ruling had put the genie back in the bottle. The Court has effectively sanctioned for other cases the use of what could be perceived by the general public to be a cheat’s charter.

What makes a top divorce lawyer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

Lawyers who specialise in divorce require skills and knowledge that are not often associated with commercial lawyers. Whilst skills such as communication, working as a team or working to deadlines are needed by any legal specialist, a lawyer dealing with relationship dissolution needs more than these attributes to cope with the challenging situations that may arise.

Understanding the complexities of adult relationships is key. A top lawyer must be capable of dealing with clients undergoing such emotional upheaval with dignity and respect. This will include being capable of appreciating significant factors in the divorce outside monetary issues, namely children who would be adversely affected by a drawn out adversarial litigation.

A divorce lawyer must accept that there are two halves to any divorce proceedings, and the desires of each party will likely conflict. Compromise will be necessary and that needs to be communicated to the client, whose vulnerable position may cloud their view of the situation. Many clients will come seeking to withhold everything from their former partner, motivated by spite or fear of losing what their earnings. The client needs to be reassured that they will be protected, and with competent legal professionals, each party should be left content. Total reluctance to negotiate with the other party will only lead to negative effects to any children involved, who have been shown to suffer as a result of the uncertainty and upheaval involved in divorce proceedings.

Expert knowledge of Family Law is an obvious requirement. The lawyer needs to be able to advise their clients about the existence of the “clean break” principle, the precedents set by cases such as White v White and other relevant case law, s.25 of the Matrimonial Causes Act 1973, and other legal principles which would affect the clients position in the event that the issue should come before a judge. Even before this, the top divorce lawyer will need to be able to convey the availability of alternative dispute resolution such as mediation or collaborative law, especially with the weight given to the ADR process by the government, the courts and organisations such as Resolution. Aside from being the cheaper option, ADR is often considered the more holistic method of dealing with a divorce, with financial, housing and custody issues being looked at as one complete issue.

It is important that the client has faith in their lawyer to do the best they can, to protect their interests and to provide the best legal advice. To ensure this the lawyer must show a determined and professional demeanour throughout the process.

The main issue to be dealt with by a lawyer dealing with divorce is turning a sensitive situation into something that the client is happy with and as a result the client will be able to move forward and build a better future. If a lawyer can do this, then they would be considered a top divorce lawyer.