Preparing For Litigation

I. Introduction

David Allen Coe:

“You Never Even Call Me By My Name”

Well, I was drunk the day my Mom got outta prison.

And I went to pick her up in the rain.

But, before I could get to the station in my pickup truck

She got runned over by a damned old train.

And I’ll hang around as long as you will let me

And I never minded standin’ in the rain. No,

You don’t have to call me darlin’…darlin’

You never even call me

Well, I wonder why you don’t call me

Why don’t you ever call me by my name?

Especially during a divorce or other family law matter, life has a tendency to resemble a country western song. The song by David Allen Coe, “You Never Even Called Me By My Name”, sets forth the elements that Mr. Coe believes to be essential to writing the perfect “country-western song”. Such elements include “mama, trains, trucks, prison, and gettin’ drunk”. These elements can also be relevant to the preparation and trial of a Texas temporary orders hearing.

Mama: who is the primary care giver of the child, or who is the person who cannot be entrusted with the daily responsibility of the children.

Trains: one parent travels an extraordinary amount, and cannot attend to the children’s daily needs.

Trucks: driving records, unpaid parking tickets, failure to fasten the safety belt of the children, reckless driving are all relevant issues.

Prison: Criminal record, domestic violence and other criminal issues can affect issues related to the children.

Gettin’ Drunk: Alcohol and drug issues are obviously relevant to a parent’s ability to raise the children.

Like Mr. Coe’s opinion on writing the “perfect country-western song”, successful litigation of the temporary hearing requires presenting all necessary elements effectively and persuasively. The first opportunity for the family law attorney to tell the client’s “perfect county-western song” is at the temporary orders hearing because it plays an essential role in positioning the client’s case for mediation and, if necessary, final trial.

II. Generally

Mark Chesnutt:

“Goin’ Through the Big D”

Six short months we went together

Decided it should be forever

Two paychecks are better than one

A diamond ring and it was done

I bought her a house like I said I would

In a subdivided neighborhood

The fuse got short and the nights got long

It was over long gone, before I knew

Where I was headed too

I’m goin’ through the big-d and don’t mean Dallas

A. Determining What to Relief to Request at a Temporary Orders Hearing.

Sections 6.502 and 105.001 of the Texas Family Code provide courts to enter temporary orders while a case is pending. Tex. Fam. Code §§ 6.502, 105.001. Under Texas Family Code section 6.502, the court may render temporary orders for the preservation of property and protection fo the parties while a divorce case is pending. Tex. Fam. Code § 6.502. The court may make temporary orders for the safety and welfare of the child, pursuant to Texas Family Code section 105.001. Tex. Fam. Code § 105.001.

For a thorough list of issues to be determined at temporary hearing, see Larry Martin’s Temporary Hearing Issues List in the Appendix.

1. Temporary orders for the preservation of property and protection of the parties.

Under Texas Family Code 6.502, while a suit for dissolution of marriage is pending, the court may grant temporary injunction for the preservation of property and protection of the parties and deemed necessary and equitable, including orders directed at one or both parties:

(1) requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities;

(2) requiring payments to be made for support of either spouse;

(3) requiring the production of books, papers, documents, and tangible things by a party;

(4) ordering payment of reasonable attorney’s fees and expenses;

(5) appointing a receiver for the preservation and protection of the property of the parties;

(6) awarding one spouse exclusive occupancy of the residence during the pendency of the case;

(7) prohibiting the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses;

(8) awarding one spouse exclusive control of a party’s usual business or occupation; or prohibiting an act described by Section 6.501(a).

Tex. Fam. Code 6.502(a).

Typically, the court does not have the authority to issue temporary orders directed at third parties unless they are joined as parties in the divorce. Keep in mind that the statue specifically provides the court with the authority to issue temporary orders directed at one or both parties, and “parties”, in the contest of 6.502, means spouses. Commonwealth Mortg. Corp. v. Wadkins, 709 S.W.2d 679, 680.

2. Temporary orders for the safety and welfare of the child.

Texas Family Code 105.001 provides that the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:

(1) for the temporary conservatorship of the child;

(2) for the temporary support of the child;

(3) restraining a party from disturbing the peace of the child or another party;

(4) prohibiting a person from removing the child beyond a geographical area identified by the court; or

(5) for payment of reasonable attorney’s fees and expenses.

Tex. Fam. Code §105.001(a).

As in a final trial, the rebuttable presumptions established in favor of the applications of the guidelines for a child support order and for the standard possession order under Chapters 153 and 154 apply to temporary orders. Tex. Fam. Code §105.001(g).

3. Temporary orders in a suit for modification.

Pursuant to section 156.006(a), the court may render a temporary order in a suit for modification, except as provided by Subsection (b):

(b) While a suit for modification is pending, the court may not render a temporary order that has the effect fo changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless,

(1) the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development;

(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or

(3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.

Tex. Fam. Code §156.005(a), (b). Whether temporary orders effectively change the person with the exclusive right to designate the primary residence does not turn on the trial court’s characterization of its ruling, but on the substance of the temporary order. In re Sanchez, 228 S.W.3d 214, 217 (Tex. App. – San Antonio 2007, orig. proceeding.)

4. Issues not decided at temporary orders hearing.

While temporary orders often set the stage for the final orders, the issues germane to a temporary orders hearing are limited to orders necessary for the preservation of property, protection of the parties, and safety and welfare of the children during the time that the case is pending. Necessarily, there are certain determinations that are outside the scope of a temporary orders hearing, including characterization, valuation, final property division, final custody and/or possession.

B. Identify client objectives/priorities and manage client expectations.

Brad Paisley:

“I’m Gonna Miss Her”

Well I love her

But I love to fish

I spend all day out on this lake

And hell is all I catch

Today she met me at the door

Said I would have to choose

If I hit that fishin’ hole today

She’d be packin’ all her things

And she’d be gone by noon

Well I’m gonna miss her

When I get home

But right now I’m on this lakeshore

And I’m sittin’ in the sun

I’m sure it’ll hit me

When I walk through that door tonight

That I’m gonna miss her

Oh, lookie there, I’ve got a bite.

Review with the client early in the relationship what the client hopes to achieve through the temporary hearing (as well as the final hearing). Sometimes clients do not have a realistic understanding of the process or what to expect. Often, clients will have misperceptions about the application of the law to their situation. Educating a client about the realities of the court proceedings can help a client have realistic expectations for the temporary hearing. Clearly define for the client the issues that will be determined at the temporary hearing and the issues that are not on the table.

III. Request for Relief – The Road Map

Johnny Cash:

“I’ve Been Everywhere”

I’ve been everywhere, man.

I’ve been everywhere, man.

Crossed the desert’s bare, man.

I’ve breathed the mountain air, man.

Of travel I’ve had my share, man.

I’ve been everywhere.

Keeping track of where the parties wants to go with the case can be challenging. An easy way to educate the judge on the relief a client seeks is to provide a summary list of the relief requested. It should state precisely in shorthand terms the relief the client wishes for the judge to award. Judges often use this document as a checklist for their ruling, especially if he or she is only provided with one by one party.

Because this document should be used as an exhibit at trial, and because it almost certainly must be admitted into evidence when the client testifies, preparation of the summary Request for Relief should be the first step in preparation for the temporary hearing. To maintain focus, compare all preparation thereafter to the Request for Relief to make sure that the overall goal is being advanced.

Use the Request for Relief in preparing the client for the temporary hearing. Make sure the client understands each request and how that request relates to the client’s overall objectives. Review with the client how to get the exhibit into evidence.

Compare your Request for Relief to the pleadings, and specifically the request for temporary hearing, to ensure that the pleadings support a request for each item of relief. If time permits, amend pleadings if they do not match the Request for Relief.

The Request for Relief can also be used to narrow the focus of the entire hearing. As decisions must be made to choose which witnesses to use at the hearing and which documents will make the best exhibits, refer back to the Request for Relief as to where the witness or exhibit fits into the road map of the hearing.

For an example of a Request for Relief, see the Appendix.

IV. Strategy and Themes

George Strait:

“The Chair”

Well, excuse me, but I think you’ve got my chair.

No, that one’s not taken, I don’t mind

If you sit here, I’ll be glad to share.

Yeah, it’s usually packed here on Friday nights.

The Request for Relief can also be the starting point of preparing the strategy and themes for the entire hearing. A list of evidentiary facts or bullet-points can be added that support each item requested. This bullet-point list can then be plugged into the outline for each witness’ testimony.

Theme development can be key to the overall preparation for the temporary hearing. Themes can bring cohesion to the message to be presented and leave a memorable impact on the judge. Who among us can forget the most memorable theme of a trial in recent history: If the glove don’t fit, you must acquit.

V. Witnesses

Johnny Cash

“Daddy Sang Bass”

Daddy sang bass,

Mama sang tenor.

Me and little brother would join right in there.

Witness selection can be crucial to the presentation of a temporary hearing, particularly when dealing with severe time limits.

It is crucial that witnesses appear to the judge as open, honest, not defensive, not arrogant, impartial although biased for one side of the case.

Discuss with all witnesses the following concepts:

1.Always tell the truth.

2.Do not exaggerate – be precise in your answers. (Accuracy equals truth.)

3.Listen carefully to the question.

4.If necessary, repeat the question to yourself.

5.Make certain you understand the question asked.

6.Ignore the voice inflection or demeanor of the opposing attorney.

7.Do not feel rushed – take your time when answering.

8.If you forget the question, ask for it to be repeated.

9.Answer only the question asked – stay focused on the question.

10.Do not answer questions with questions.

11.Answer orally, distinctly and loud enough for all to hear.

12.Be confident and firm in your answer.

13.Do not guess unless specifically asked to guess.

14.Do not box yourself in – watch questions such as “all” and “every”.

15.Always be courteous – do not argue with the opposing attorney.

16.Remain calm – remember to take deep breaths.

17.If the questioning attorney is objecting to the answer and saying, “objection, nonreaponsive” then listen more carefully and just answer the question asked.

18.You are “on stage” from the time you arrive at the courthouse.

It is also preferable to prepare a witness outline for each witness. It does not have to be a full script of the questions and anticipated answers; instead, it can be a bullet point list of topics to cover. Also, give consideration prior to the hearing to the order in which to call the witnesses from a strategic perspective.

A. Client Preparation

Z.Z. Top:

“Sharp Dressed Man”

Clean shirt, new shoes

And I dont know where I am goin to.

Silk suit, black tie,

I dont need a reason why.

They come runnin just as fast as they can

Coz every girl crazy bout a sharp dressed man.

Client preparation to testify at trial begins with the initial client interview. First, spend time with the client learning the client’s full history and background. Learn about educational background and work history. Ask questions about how they met, what things were like early in the marriage, what have been the sources of problems during the course of the marriage. Find out the client’s expectations for the proceedings and discuss the reasonableness of those expectations. Also, discuss the opposing party’s likely expectations and whether those are reasonable. Lastly, discuss any surprise issues that may come up – what will the opposing party use as a “gotcha” to gain leverage from the client and what “gotcha” evidence does the client have on the opposing party.

Getting on the same page with the client as to realistic expectations gives both the attorney and the client a comfort in anticipating likely outcomes. Give the client an overview of how the courthouse works – from the role of court personnel to the appropriate dress and demeanor for court proceedings. An educated client who knows what to expect in the courtroom will not be as subject to stress and will be better able to focus on the testimony.

Prepare the client to answer questions about his and his spouse’s strengths and weaknesses. If the client cannot articulate some strengths of the opposing party and some weaknesses of himself, he will appear to lack credibility and will not be perceived as a parent who will foster a good relationship between both parents and the children.

B. Narrowing the Focus

Garth Brooks:

“Friends in Low Places”

Blame it all on my roots

I showed up in boots

And ruined your black tie affair

The last one to know

The last one to show

I was the last one

You thought you’d see there

And I saw the surprise

And the fear in his eyes

When I took his glass of champagne

And I toasted you

Said, honey, we may be through

But you’ll never hear me complain

‘Cause I’ve got friends in low places

Where the whiskey drowns

And the beer chases my blues away

And I’ll be okay

I’m not big on social graces

Think I’ll slip on down to the oasis

Oh, I’ve got friends in low places.

All variety of people can make excellent witnesses: neighbors, teachers, school counselors, school administrators, co-workers, friends, clergy, children’s coaches, parents of the children’s friends, church members, daycare workers, social workers, psychologists, and professionals the family may have used, CPAs, attorneys, extended family members, eye-witnesses, healthcare providers, physical trainers, etc. But, not every one of these people in each case should be called as witnesses. The list of potential witnesses should be pared down prior to the hearing to the most important three to four, assuming that the time constraints of the hearing permit that many witnesses.

Have the client make a list of which witnesses might be favorable for the case and which witnesses can be expected to testify for the opposing party. Also, have the client detail what each witness knows with as much specificity as possible.

Interview the witnesses before you hearing to ensure that the witness has knowledge that is actually relevant. Inform the witness at the beginning of the conversation as to who you represent – the client and not the witness. Most importantly, the attorney should confirm for himself whether the witness is competent to testify and that he or she is able to communicate that information effectively.

C. Subpoenas

Getting witnesses to a temporary hearing can be challenging. Sometimes the client hires the attorney late in the process, leaving little preparation time. Or, information is not provided to the lawyer timely to make decisions about which witnesses could provide persuasive evidence.

Some witnesses, such as daycare workers, school teachers, or counselors, may not appear without a subpoena. So, it should be emphasized to the client to get information to the attorney as early as possible to provide the most time to prepare for the hearing.

VI. Exhibits

Hank Williams:

“Your Cheatin’ Heart”

Your cheatin’ heart will tell on you

When tears come down like falling rain

You’ll toss around and call my name

You’ll walk the floor the way

I do your cheatin’ heart will tell on you.

To get documents to the temporary hearing time may not permit getting documents by release. Subpoenas for documents will be the best procedure to get the documents to the hearing. Note, however, that subpoenas to a party have particular rules that prohibit use of subpoenas to circumvent discovery rules.

Local rules of the county where the case is pending can provide a method for obtaining documents. Most local rules require the exchange of a financial information statement prior to the temporary hearing, providing information relevant to each party’s monthly expenses and income. The Family Code also provides specific provisions for disclosures in connection with child support cases. Section 154.063 requires a party to furnish information sufficient to accurately identify the party’s net resources and ability to pay child support, and requires the party to produce income tax returns for the previous two years, a financial statement, and pay stubs.

In obtaining medical or mental health records, the requesting party must comply with the provisions of HIPPA. When requesting records from the opposing party, he or she may assert the privilege to prevent release, sparking a complex and expensive battle to obtain the information. Thus, the requesting party should send the releases early in the litigation to ensure that sufficient time exists in the case as a whole to have the hearings necessary to obtain the information.

When using voluminous documents in a temporary hearing, it is advisable to use summaries. Because time is frequently limited in temporary hearings, the litigants may not have time to thoroughly provide evidence from voluminous documents, and the judge may not have sufficient time to review and analyze all of the information. So, putting the information into a summary will assist the judge in getting down to the relevant points quickly.

Other types of exhibits that can be helpful include calendars, police reports, school records, and custody exhibits, bank records, and tax returns. Timelines can be very effective, but are infrequently utilized. Judges have to keep track of the various dates involved in a case with little familiarity with the issues. A timeline can be helpful to educate the judge at the temporary hearing, as well as provide information throughout the case. For some examples of exhibits that the panel has used in prior hearings, see the Appendix.

VII. Organization of Materials

Being well-organized can help the attorney with presentation of the issues for the temporary hearing. Much like for a final hearing, an organized trial notebook can keep the information readily available and easy to use during the hearing. Include in the trial notebook the relevant live pleadings and motions set for the hearing. Include the request for relief at a place where it can be easily located and referenced frequently during the hearing. Have a separate tab in the notebook for each witness and include in that tab not only notes regarding the questions for that witness, but also other relevant documents regarding that witness as well as the subpoena. Keep a copy of each exhibit in the notebook either organized in the order the attorney plans to present during the hearing or organized by the witnesses through which the document is to be offered.

It can also be effective to take proposed temporary orders to the hearing containing the relief requested on behalf of the client. Although the judge may not always utilize the proposed orders in the exact form, the orders can make the judge’s job easier in reaching a decision and may provide an outlet to reach a decision.

VIII. Presentation at the Hearing.

Preparation is essential to winning, but only carries the case halfway. Effective presentation at the temporary hearing provides persuasive reasons for the judge to grant the relief your client seeks.

A. Opening Statement

Tompall Glaser:

“Put Another Log On the Fire”

Put another log on the fire.

Cook me up some bacon and some beans.

And go out to the car and change the tire.

Wash my socks and sew my old blue jeans.

Come on, baby, you can fill my pipe,

And then go fetch my slippers.

And boil me up another pot of tea.

Then put another log on the fire, babe,

And come and tell me why you’re leaving me.

Judges frequently view opening statements differently than a jury would in a final trial. Commonly, judge prefer that opening statement in a temporary hearing be a succinct overview of the relief requested by each side, as opposed to a persuasive argument of the facts of the case. Balancing the direct presentation of the relief requested with an overview of the most important facts to be presented can provide an opportunity for persuasion of the client’s case.

B. Evidence and Objections

The judge is presumed to be able to disregard inadmissible evidence that might be admitted during a temporary hearing. Thus, presentation at the temporary hearing should focus less on objections to the presentation of evidence and more on the substance of the evidence presented. Because time limits frequently inhibit the amount of evidence to be presented, the presentation should get straight to the point. Use of timelines, summaries, and other documentary evidence can shorted the time spent in testimony reviewing those facts and allow for more development of the client’s story.

Even at temporary hearing, the presentation should focus on the storytelling aspect of the client’s case. To effectively boil the client’s story down, even the most complex case should be able to be summarized in three sentences or less.

Toby Keith:

“I Wanna Talk About Me”

We talk about your dreams and we talk about your schemes

your high school team and your moisturizer creme

We talk about your nanna up in Muncie, Indiana

We talk about your grandma down in Alabama

We talk about your guys of every shape and size

The ones that you despise and the ones you idolize

We talk about your heart, bout your brains and your smarts

And your medical charts and when you start

You know talking about you makes me grin

But every now and then

I wanna talk about me

Wanna talk about I

Wanna talk about number one

Oh my me my

What I think, what I like, what I know, what I want, what I see

I like talking about you you you you, usually, but occasionally

I wanna talk about me

Rick Robertson recommends reading Winning With Stories by Jim Perdue to expand an attorney’s storytelling ability at trial.

Direct examination provides the key opportunity to present the client’s story. Simplify the questioning to provide open ended questions that provide the client the opportunity to present the essence of his story to the judge. Keep sight of the overall goal of the relief requested to maintain focus.

Maintaining focus on the goal of the requested relief is even more key during cross-examination. It is easy to get caught up in addressing issues raised by the other side and get off track of the points needed to present the client’s goals. Cross-examination can be made more effective by limiting the question to one fact at a time. Keep the questions short and close-ended to keep the responses limited and the focus off of the opposing party’s story.

C. Attorneys Fees

Warren Zevon:

“Lawyers, Guns, and Money”

Send lawyers, guns and money

The shit has hit the fan.

Frequently, attorneys fees become an essential part of the temporary hearing. Where one party has control of the majority of the assets and the other party has little access to assets to use to pay attorneys fees, the attorney must make an effective and persuasive case for granting an award of attorneys fees. In some counties, judges are reluctant to allow any additional opportunity to present a request for temporary relief, so it becomes even more important to accurately predict the amount of fees that will be required to litigate the case.

An estimated summary of expected attorneys fees and expense can be an effective exhibit for use at temporary hearing to support a request for fees. Also essential to the attorneys fees request is the identification of a source of community funds from which to take the attorneys fees. To prepare an estimate of attorneys fees, evaluate the special issues related to the specific case. Is there a community property business to value? Is there a special characterization issue where records need to be subpoenaed? Is there a custody issue that will require special evaluations? Give the judge (and the client) a realistic assessment of how much it will take to litigate the case and address upfront the issue of how those fees are going to be paid.

Remember to include an estimate of permissible fees for the legal assistant. To receive an award for legal assistants, the evidence must show the qualifications of the legal assistant, that the work was performed under the supervision of the attorney, the nature of the work performed, the hourly rate, and the number of hours of work performed or expected. Gill Savings Ass’n v. Int’l Supply Co., 759 S.W.2d 697, 702 (Tex. App. – Dallas 1988, writ denied).

See the Appendix for an example of exhibits related to the issue of attorneys fees.

D. Closing Argument

Some judges do not prefer to hear closing argument. As formerly practicing attorneys, judges tend to be very astute in getting the picture of the relief requested from the evidence presented and the summary of relief requested. Knowing the preferences of the judge who will decide the case will help the attorney know to what extent persuasive argument can be utilized during closing argument.

IX. Time Limits

Alabama:

“I’m In A Hurry”

Oh, I hear a voice

That says I’m running behind

Better pick up my pace

It’s a race and there ain’t no room for someone in second place

I’m in a hurry to get things done

Oh I rush and rush until life’s no fun

All I really gotta do is live and die

But I’m in a hurry and don’t know why.

Due to the crowded dockets of many courts, judge are increasingly limiting the time available to present a temporary hearing. It becomes essential for the attorney to be familiar with the practices and procedures of the court prior to appearing for the temporary hearing. It can spell disaster for the attorney to show up for temporary hearing with several witnesses and planning for an hour-long presentation, only to learn that the court’s practice is to limit the evidentiary presentation to 20-minutes per side.

Trying a temporary hearing under time constraints can be challenging. Preparation before the hearing can be even more essential. Summary exhibits, timelines, and requests for relief become more than a luxury, but are essential to conveying the client’s message in a short time frame. Using fact or expert witnesses beyond the parties also becomes next to impossible. The time allowed to present a case is a matter soundly within the trial judge’s discretion and will not be disturbed absent an affirmative showing of injury to the complaining party. Pirrung v. T. & N.O.R. Co., 350 S.W.2d 50 (Tex. Civ. App. – Houston 1961, no writ).

On the other hand, with courts increasingly utilizing time limits, the attorney needs to keep in mind the constitutional balance between the judge’s desire to efficiently manage his or her docket versus the client’s constitutional right of due process and access to the courts. The Constitution recognizes higher values than speed and efficiency; the Bill of Rights in general, and the due process clause in particular, were designed to protect the fragile values of vulnerable citizenry from the overbearing concern for efficiency and efficacy which may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.Stanley v. Illinois, 405 U.S. 645, Â 656, 92 S.Ct. 1208, 1214_ (1972); U.S.C.A.Const. Amend. 14. “The parties to a cause upon trial have a right to a reasonable time to argue the facts to the jury; and an arbitrary and unreasonable restriction upon the summing up, as where the judge limited the counsel to 10 minutes, is an abuse of discretion, and is ground of reversal.” Nesbitt v. Walters, 38 Tex. 576 (Tex. 1873).

To preserve error on a challenge to a trial court’s limitation of time, the litigant must specifically point to the injury to be suffered by way of the limitation. In other words, what specific evidence, that is relevant and no duplicative, the litigant will not be able to present due to the time constraints. The litigant should also argue the constitutionality of the restrictions and pint to the unfairness of the restrictions applies as compared to the other party.

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