A Process Server Walks Into A Bar . . .
By Diana Knowles Dunlop, Family Law Attorney www.divorceorlando.net
A Process Server walks into a bar with a summons under his arm. He has to serve a divorce action on a "John Smith" who is known to be a frequent customer at the bar. The Process Server has a description of the man and some other facts about him, which the wife in the case, Mary Smith, has provided.
John Smith is 5 feet 10 inches tall and weighs about 180 pounds. He has medium-length brown hair, hazel eyes, and a good tan from working construction. He shaves on average, once every two weeks. He wears a baseball cap almost everywhere he goes, inside and out. John Smith uses alias names because no one believes his real name. He will not react to someone calling him "John Smith." Some of his aliases are "Bubba Wild," "Hank Hargrave," "Bobby Jett" and "Bucky Green." His favorite football team is the Pittsburgh Steelers. John Smith drinks draft beer. He likes blonde women. He drives a white Chevy pick-up. The Process Server noticed that a white Chevy pick-up was parked outside the bar.
The Process Server sees seven men seated at the bar. All but two have on baseball caps. He cannot tell the height of the men, because they are sitting. All but one has medium length, brown hair. Three are clean shaven. The other four have scruffy beards. In the dim light of the bar he cannot tell the color of the men’s eyes. The Process Server knows it is probably useless, but he asks,"Anyone here know a John Smith?" All the men shake their heads, indicating "No."
The Process Server sits at the bar and orders a draft beer. All the men at the bar are drinking draft beer. A football game between the Steelers and Miami is playing on the sports screen.
The Process Server asks, "Anyone pulling for the Steelers?" All the men nod a "Yes," and keep their eyes focused on the game.
A commercial comes on, and the Process Server says, "What we need is about ten good-looking blondes to come in and join us."
The men all raise their glasses and respond, "I’ll drink to that."
The Process Server thinks of one last thing to try. He walks out of the bar, then he turns around and rushes back in."Hey," he shouts, "Some lady named Mary just rammed her car into a white Chevy pick-up – on purpose!"
One of the men at the bar stands up. "I’ll kill her," he says.
"You’re served," the Process Server says, as he hands John Smith the summons.
Moral: Don’t let your dislike for your spouse be used to your disadvantage in your divorce. Develop a sound case strategy and stick to the game plan. Diana Knowles Dunlop
Friday, October 18, 2013
Friday, October 4, 2013
Answer to What to do if you are being framed for domestic violence?
ANSWER TO: HOW TO PREVENT MY SPOUSE FROM FRAMING ME AS TO DOMESTIC VIOLENCE?
The case involving the woman falling off the porch and a neighbor misinterpreting the incident as "domestic violence" is a classic situation where a hearsay objection should be made. You, as the wrongly accused, would want to prevent the judge from relying on the out of court statements by the neighbor that were written in the police report. The statements of the neighbor which are written in the police report are hearsay. The police officer wrote what the neighbor told the police officer what had happened – but the neighbor was stating an opinion of what he thought had happened. He didn’t see the incident, but he reported it as though he had. The issue is that the police officer, himself, who is testifying in court, did not witness the incident. The hearsay rules prevent the injustice of you having the neighbor’s statements admitted against you when you do not have the neighbor in court for you to be able to question him about the truth of these statements. And, if the neighbor is present in court, then The Best Evidence Rule would apply: the neighbor’s direct testimony about what happened, not the police report, is the evidence that should be presented in court. But, don’t think that the judge will make the hearsay objections to the evidence. That is not his or her obligation. If you don’t make a timely objection, you can lose your right to object at a future time, or to file an appeal as to the error.
And, even though there are the protections of the hearsay rules, there are exceptions to the hearsay rules. Some exceptions are the admission of hearsay statements that are made against the self-interests of the speaker, are admissions by a party opponent, are an excited utterance or a statement made by someone who is about to die. The test for admissibility in these exceptional circumstances is how much the jury or judge (in a bench trial) can rely on the truthfulness of these types of out-of-court statements. Also, if the statements are not offered for the truth of what is stated in them but for another purpose, this can allow hearsay to come into evidence by being deemed not to be hearsay. However, once a written or verbal statement is admitted as non-hearsay, how do you keep the judge or the jury from not relying on all or part of the statement for the plain meaning (truth) in the statements?
A document alone, such as a letter, a sworn affidavit of a witness who is not at court, an appraisal on a home, a police report, medical records, can usually be kept out of evidence by a hearsay objection unless there is a reliable witness in court to testify about the authenticity of the document and the statements contained in it.
The trier of fact in a family law case is usually the judge assigned to the case. In a case with a jury trial, the jury listens to the evidence and decides the facts. The judge or the jury will apply the law to the facts and decide the issues, like whether one spouse committed domestic violence, or whether one spouse will pay alimony to the other and if so, how much alimony and for how long. Sometimes in a case, even when both parties have filed financial affidavits and have exchanged the financial documents required by the Florida Family Law Rules, the judge or jury still must determine what is the real monthly net income of the parties so the correct amount of child support or alimony (if any) will be ordered. A good lawyer must always be vigilant as to the reliability of evidence that is being presented when that evidence will work against the interests of his or her client. Unreliable evidence should be objected to with sustainable objections.
To convince the judge (or the jury) to decide the facts favorably for you, your attorney will present documents and witnesses’ testimony at court. Don’t be in court with documents and testimony of witnesses that will not be allowed into evidence. Your attorney should be very familiar with the Florida Rules of Evidence, if your case is in a State Court, and with the Federal Rules of Evidence if your case is in Federal Court. The success of your case will depend on (1) knowing how to get your evidence admitted and (2) making sustainable objections to the other side’s attempts to get documents and testimony into evidence that will work against you.
Be the best litigant that you can be, and remember, when you file your case, you are "in court." Everything you do related to your case should strengthen your court case, even if you settle the issues without ever having to go to court. You will get a better settlement when: (1) your court documents cover all legal issues, (2) when your research in support of the issues is on point and current, and (3) when you have documents and witness testimony that will be admissible evidence.
The case involving the woman falling off the porch and a neighbor misinterpreting the incident as "domestic violence" is a classic situation where a hearsay objection should be made. You, as the wrongly accused, would want to prevent the judge from relying on the out of court statements by the neighbor that were written in the police report. The statements of the neighbor which are written in the police report are hearsay. The police officer wrote what the neighbor told the police officer what had happened – but the neighbor was stating an opinion of what he thought had happened. He didn’t see the incident, but he reported it as though he had. The issue is that the police officer, himself, who is testifying in court, did not witness the incident. The hearsay rules prevent the injustice of you having the neighbor’s statements admitted against you when you do not have the neighbor in court for you to be able to question him about the truth of these statements. And, if the neighbor is present in court, then The Best Evidence Rule would apply: the neighbor’s direct testimony about what happened, not the police report, is the evidence that should be presented in court. But, don’t think that the judge will make the hearsay objections to the evidence. That is not his or her obligation. If you don’t make a timely objection, you can lose your right to object at a future time, or to file an appeal as to the error.
And, even though there are the protections of the hearsay rules, there are exceptions to the hearsay rules. Some exceptions are the admission of hearsay statements that are made against the self-interests of the speaker, are admissions by a party opponent, are an excited utterance or a statement made by someone who is about to die. The test for admissibility in these exceptional circumstances is how much the jury or judge (in a bench trial) can rely on the truthfulness of these types of out-of-court statements. Also, if the statements are not offered for the truth of what is stated in them but for another purpose, this can allow hearsay to come into evidence by being deemed not to be hearsay. However, once a written or verbal statement is admitted as non-hearsay, how do you keep the judge or the jury from not relying on all or part of the statement for the plain meaning (truth) in the statements?
A document alone, such as a letter, a sworn affidavit of a witness who is not at court, an appraisal on a home, a police report, medical records, can usually be kept out of evidence by a hearsay objection unless there is a reliable witness in court to testify about the authenticity of the document and the statements contained in it.
The trier of fact in a family law case is usually the judge assigned to the case. In a case with a jury trial, the jury listens to the evidence and decides the facts. The judge or the jury will apply the law to the facts and decide the issues, like whether one spouse committed domestic violence, or whether one spouse will pay alimony to the other and if so, how much alimony and for how long. Sometimes in a case, even when both parties have filed financial affidavits and have exchanged the financial documents required by the Florida Family Law Rules, the judge or jury still must determine what is the real monthly net income of the parties so the correct amount of child support or alimony (if any) will be ordered. A good lawyer must always be vigilant as to the reliability of evidence that is being presented when that evidence will work against the interests of his or her client. Unreliable evidence should be objected to with sustainable objections.
To convince the judge (or the jury) to decide the facts favorably for you, your attorney will present documents and witnesses’ testimony at court. Don’t be in court with documents and testimony of witnesses that will not be allowed into evidence. Your attorney should be very familiar with the Florida Rules of Evidence, if your case is in a State Court, and with the Federal Rules of Evidence if your case is in Federal Court. The success of your case will depend on (1) knowing how to get your evidence admitted and (2) making sustainable objections to the other side’s attempts to get documents and testimony into evidence that will work against you.
Be the best litigant that you can be, and remember, when you file your case, you are "in court." Everything you do related to your case should strengthen your court case, even if you settle the issues without ever having to go to court. You will get a better settlement when: (1) your court documents cover all legal issues, (2) when your research in support of the issues is on point and current, and (3) when you have documents and witness testimony that will be admissible evidence.
Wednesday, October 2, 2013
Don't let yourself get framed for domestic violence.
Show and Tell: Presenting Evidence in Court. By Diana Knowles Dunop Copyright 2013
HOW CAN I PREVENT MY SPOUSE FROM FRAMING ME AS TO DOMESTIC VIOLENCE?
NOTE: The following scenario is fictional. Any resemblance of the characters in this scenario to any real persons, living or dead, is unintentional and entirely accidental.
Consider this:
One night, you and your spouse have a heated verbal argument inside your house. At one point in the argument your spouse says, "I’m not staying here if you’re going to talk to me like that. I’m going to go spend the night with a friend." Your spouse opens the front door, runs out onto the front porch, and falls down the front steps. The fall causes your spouse to get a broken nose and a deep cut over one eye. You come out of the house, stand on the porch, look down at your spouse, who is still lying on the ground, and you shout, "That serves you right for walking out on me!"
"Hey, what’s going on?" you hear your next door neighbor ask. Your neighbor is standing on his front porch. You don’t know what he saw. Your spouse tells the neighbor that you hit him/her in the face and knocked him/her down the steps. Your spouse tells the neighbor, "I’m hurt. This is domestic violence. Call the cops." Your neighbor rushes inside and calls 911. When the police arrive, they take statements from you, your spouse, and the neighbor.
The police say that they can’t determine who is telling the truth. The police decide that you can stay in the house for the night, and they tell your spouse to go spend the night elsewhere. The police state that this will give you and your spouse time to cool off. The next day, your spouse (who has apparently not cooled off) files for an injunction for protection against domestic violence. You get served with the petition for the injunction; and in it, your spouse states that you punched him/her in the face so hard that you broke his/her nose and knocked him/her down the front steps causing a deep cut over one eye and other injuries. You have to attend a hearing on the injunction.
The day before the injunction hearing, you talk to your neighbor and asked him what he witnessed concerning the incident. He tells you that he didn’t actually see you hit your spouse and that he did not actually see your spouse fall down the steps. He tells you that when he came outside, he saw you standing on the steps and saying something like, "That serves you right." He says that he told the police that you hit your spouse and knocked him/her down the steps because that is what he thought had happened. He says he is really sorry for getting you into trouble by what he said to the police and that he will try to show up for the injunction hearing and tell the judge that he didn’t really see what happened.
At the injunction hearing, your neighbor fails to show, but the police officer who wrote the police report is present. Your spouse lies and tells the judge that you hit him/her in the face, knocked him/her off the front porch, and caused your spouse to have a broken nose and other injuries. You tell the judge the truth about what happened, but it is basically a "he-said, she-said" situation as to who is telling the truth. Your spouse has brought to court a copy of the police report from the night of the incident. The police officer testifies that the copy of the police report shown to him by your spouse is the report about the incident. The officer agrees that he wrote in the report that your next door neighbor said that he witnessed the incident and that what happened was that you hit your spouse in the face and caused your spouse to fall off the porch. Your spouse offers the police report into evidence to prove, through the statements made to the police by your neighbor, that you hit your spouse in the face and knock him/her off the porch.
What should your objection be in regard to admitting the police report?
HOW CAN I PREVENT MY SPOUSE FROM FRAMING ME AS TO DOMESTIC VIOLENCE?
NOTE: The following scenario is fictional. Any resemblance of the characters in this scenario to any real persons, living or dead, is unintentional and entirely accidental.
Consider this:
One night, you and your spouse have a heated verbal argument inside your house. At one point in the argument your spouse says, "I’m not staying here if you’re going to talk to me like that. I’m going to go spend the night with a friend." Your spouse opens the front door, runs out onto the front porch, and falls down the front steps. The fall causes your spouse to get a broken nose and a deep cut over one eye. You come out of the house, stand on the porch, look down at your spouse, who is still lying on the ground, and you shout, "That serves you right for walking out on me!"
"Hey, what’s going on?" you hear your next door neighbor ask. Your neighbor is standing on his front porch. You don’t know what he saw. Your spouse tells the neighbor that you hit him/her in the face and knocked him/her down the steps. Your spouse tells the neighbor, "I’m hurt. This is domestic violence. Call the cops." Your neighbor rushes inside and calls 911. When the police arrive, they take statements from you, your spouse, and the neighbor.
The police say that they can’t determine who is telling the truth. The police decide that you can stay in the house for the night, and they tell your spouse to go spend the night elsewhere. The police state that this will give you and your spouse time to cool off. The next day, your spouse (who has apparently not cooled off) files for an injunction for protection against domestic violence. You get served with the petition for the injunction; and in it, your spouse states that you punched him/her in the face so hard that you broke his/her nose and knocked him/her down the front steps causing a deep cut over one eye and other injuries. You have to attend a hearing on the injunction.
The day before the injunction hearing, you talk to your neighbor and asked him what he witnessed concerning the incident. He tells you that he didn’t actually see you hit your spouse and that he did not actually see your spouse fall down the steps. He tells you that when he came outside, he saw you standing on the steps and saying something like, "That serves you right." He says that he told the police that you hit your spouse and knocked him/her down the steps because that is what he thought had happened. He says he is really sorry for getting you into trouble by what he said to the police and that he will try to show up for the injunction hearing and tell the judge that he didn’t really see what happened.
At the injunction hearing, your neighbor fails to show, but the police officer who wrote the police report is present. Your spouse lies and tells the judge that you hit him/her in the face, knocked him/her off the front porch, and caused your spouse to have a broken nose and other injuries. You tell the judge the truth about what happened, but it is basically a "he-said, she-said" situation as to who is telling the truth. Your spouse has brought to court a copy of the police report from the night of the incident. The police officer testifies that the copy of the police report shown to him by your spouse is the report about the incident. The officer agrees that he wrote in the report that your next door neighbor said that he witnessed the incident and that what happened was that you hit your spouse in the face and caused your spouse to fall off the porch. Your spouse offers the police report into evidence to prove, through the statements made to the police by your neighbor, that you hit your spouse in the face and knock him/her off the porch.
What should your objection be in regard to admitting the police report?
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