When you think about divorce cases you may think, “Are they not all the same?” The answer to this is: “No, they are not!” Each case, whether it has custody issues, alimony issues, equitable dissolution issues or even is just a plain uncontested settlement matter is what we call, “Fact Driven.” Therefore, the facts of a case become very important.
I remember once when I was in a final hearing (trial) and my client was testifying. Prior to the trial, we had conducted discovery, taken depositions and gone through mediation, so I thought I knew basically everything I needed to know about my client, until I heard my client ask the opposing counsel on cross examination whether he was inquiring about the child at issue or his other child. Well, I can tell you I did a double-take because this was the first time I had heard about any “other child.” I immediately asked for a break to determine what was going on. When I questioned my client he told me he never thought about telling me about this other child, because I never asked! I explained to him that every form he ever filled out asked about all children. He then said he just really had not wanted to get into a discussion about a child who was not part of this case. As you can imagine this was not the answer I wanted to hear.
The facts you tell your attorney are extremely important and if in doubt you should tell ALL. EVERYTHING about your life might be relevant to your attorney whether you think it is important or not. Let your attorney decide the level of importance and then you can both work together to figure out how you are going to present the facts to the court. Based upon this thought I would like to share with you some of the IMPORTANT things you need to tell your attorney even if they forget to ask!
This list is not in order of importance, but these are some of the things you should make sure your attorney knows:
1. Tell your attorney about any and all criminal actions you have ever been involved in. This is one of my favorites – I was conducting an initial client interview and we were discussing at length his options regarding obtaining full custody of the children. I was thinking we maybe should even seek sole custody. Right before the interview was about to conclude the client said that maybe he should ask me if I thought his criminal history might have any bearing on the case. I was needless to say somewhat stunned when I realized that there was a page long rap sheet on the client. The moral of this story is always tell your attorney about any criminal actions you have been involved in whether or not there was a conviction or pre-trial release, arrest or even warrants issued. Do not forget any juvenile issues or records you consider “sealed.” My motto is that if it happened, someone will remember it and it will come out. I want to be the one to decide when this happens – not leave it up to opposing counsel.
2. Are you dating another client of the attorney? For example, if your girlfriend said, “Go see my attorney, she is awesome.€ So you come to talk with me and yet both of you forget to tell me you are dating one of my clients. Then at trial the other side calls your girlfriend who is now mad at you and hates your guts to come and testify against you. At that point I may have to recuse myself from both cases because I cannot put one of my clients on the stand and ask questions that may be adverse to them. It becomes a very sticky wicket, so to speak.
3. Tell your attorney about things you would rather keep hidden. I want to know every “skeleton€ hanging in your closet. If I know about an issue in your life, then I have the possibility to mitigate the potential damage. If I do not know about it then I just get blindsided and become less effective on your behalf. So, if you have been Baker Acted, Marchman Acted, spent time in any mental health clinic, for any type of mental or drug and/or alcohol use then I need to know. This is definitely a “need to know item. Will it necessarily be damaging to your case? That will depend on the FACTS but if I know about it I can show the court how well you are doing even with past issues and in this manner seek to overcome any potential problems.
4. Discuss any litigation you have ever been involved in of any type. This can become important if perhaps you are in a social security disability lawsuit or a personal injury lawsuit or a lawsuit involving employment or even your children. The outcome of these cases could change the way we file or litigate the matter. If you have been involved in other litigation in the past it is helpful for me to know what happened and the result. Once again do not think ANYTHING is unimportant, let me be the judge of that.
5. What is the worst thing that has ever been said about you? One question I always want to know is “What is the worst thing the other side is going to say about you and is it true? If you do not tell me that you have an anger problem and then the next thing I know is we are being hit with a tort action in the divorce case for battery because you recently beat up your wife and she is now claiming a head injury I am going to be upset and wonder what else you have not told me. This does not give me warm fuzzy feelings and makes me begin to question everything you are telling me. If I can get to that stage in how I am thinking about you, then what do you think a Judge will think? It’s just not a good idea to tell your attorney that you are a perfect angel and then get run over with allegations of maybe sex addictions, or child porn or gambling debts or spending problems or anything along these lines. Tell me please what the issues are going to be, so I can help you. There is an old saying that goes like this, “Knowledge is power. If you give me the knowledge about your case, I am empowered to advocate on your behalf. Without the knowledge I have no power to intercede where or when necessary. I promise you I am not making moral judgments on you or personal calls about how you live your life. I am trying to get the FACTS, so I can represent you to the best of my ability. Don’t handicap me from the beginning of the case.
6. Never lie to your attorney. I wish I had a dime for every client who sits in front of my desk and tells me that they will NOT TEST positive for drug use and then when I tell them, “Great, go right now to the clinic and take a “pee test” they began to explain to me all the reasons why they can’t go for at least three more days. I know right away that they are not telling me the truth about their drug use. DO NOT LIE TO YOUR ATTORNEY. This really should have been one of the Ten Commandments. I promise you someone out there knows and if the opposing counsel can find that person or document they usually will. I know and understand that this is a really hard thing to do; spilling your innermost secrets with an attorney you are not even sure you like, but I promise you it is in your best interest to come clean at this stage of the game.
Finally, while this is certainly not the last issue, it is enough for today. I really do have your best interest at heart. I care about my clients, I want you to get the best results possible and I want you to be able to move on with your life without any fears holding you back at the end of the case. As we work together through your case, I and my staff will come to know more about you than your own mother. So remember, I am not your enemy, I am your advocate seeking to help you in every way I can and for this I need you to keep me informed, up to date and current on what is going on in your life and mindful of the advice I give you during the course of the litigation. If we work together as a team we will be stronger.
Susan V. Carroll, Esquire