Tonight's post about evidence is written by our
Savannah attorney, David Purvis.
As a family law attorney, sometimes the parties' written communications
have made my job of building the evidentiary wall that wins their case
immensely easier. My client has repeatedly, in writing, shown herself
to be the parent that makes every effort to find reasonable solutions
to the issues between the parties. Or, the other party, in writing, has
been ugly or difficult and opposed to resolving issues. Of course, I've
also been on the other end with a client who has written voluminous amounts
of material which damaged their case and made my job immensely more difficult.
Modern technology allows us more avenues than ever before to share our
thoughts and feelings with each other and the world. Text messaging, email,
and social media posts all allow us to put our thoughts into writing and
to share them instantly. While this can offer some incredible benefits,
in the world of family law it can bite you when you tell a judge that
you have been the party acting fairly and earnestly when what you have
written reads like venom.
To avoid this problem, here's what you need to do.
Take a moment
When I see texts, facebook posts, and emails between clients and opposing
parties that are "cringe-worthy," they have often been written
in the heat of battle. Just because technology allows you to instantly
communicate with the written language does not mean you MUST instantly
communicate with the written language. If you're in the middle of
a heated exchange, take a step away, calm down, and return to the communication,
if necessary, when you have your wits about you.
Anything You Say Can and Will be Used Against You
We are all familiar with Miranda warnings for criminal arrests thanks to
television and movies. The "anything you say can and will be used
against you" portion, rings true for family law cases. Your written
and recorded words can and will be used against you. Even deleted messages
can be recovered. In short, we live in a society now where collecting
and saving communications for posterity can be all too easy. These can
then be used in court either to build up your position or deep six it,
depending on what you've said.
Tone and The Inside Story
Sometimes, the fiery, "cringe-worthy" comment is in response
to something seemingly benign from the other party. The client tells me,
"well what they mean by that is ____ (insert devious or ugly remark)"
or "I know how they think/speak, and the tone that it's meant
to convey is _______ (insert devious or ugly remark)."
Tone in the written language is very difficult to interpret. For an outsider,
it is often very difficult to know the precise tone or meaning behind
words written by someone personally unknown to them. Just because the
people engaged in the conversation may understand the deeper meaning does
not mean the person (i.e. judge or jury) is going to take that same meaning
when they read it.
Which brings me to my third point:
Know Your Audience
If you are in the midst of a family law case or one could be approaching,
know that the words you put on paper today may very well be brought up
in Court tomorrow. Your communications with your spouse or ex-spouse will
be combed through and used either by your attorney or by your spouse's
attorney. If the communication is relevant to the case, it may very well
wind up before a judge or jury.
Choose your words carefully and understand that once written, those words
will be tied to you and possibly used to judge you. Using expletives may
make you feel like you're relieving stress or making your point at
the time, but it's never fun to have to them read aloud while on the
witness stand. Attorney: "And then what did you say to the mother
of your children?" Witness: "I said, 'go f$@# yourself.'"
Being difficult to deal with simply for the sake of frustrating your ex
or soon-to-be ex will not read well on paper later when you are trying
to persuade the court to rule in your favor. Posting commentary publicly
on your facebook wall about your family foibles rarely resolves any issue
with the other party and generally only further exacerbates the situation.
If you rely on your friends and family for support during your family
law case, as you should, having an "old fashion" face-to-face
visit not only eliminates the need to put your business out publicly on
the internet, but will likely give you more of the support you're
looking for in the first place. Emoticons do not replace actual tears.
One of my favorite sayings is: "a brick does not make a wall."
Rarely does one piece of evidence win a case (Matlock was fictional) and
it takes multiple pieces of evidence to build a solid wall of a case.
Make sure that the bricks you bring to your attorney, the ones in which
you have put thoughts into written words, are solid bricks with which
to build a wall and not the dynamite that blows it up.