LGBT Webinar Part 3: Addressing Prejudice Against Gay and Lesbian Issues in Courts

Michelle O’Neil:


Welcome back everybody! Here we are the Texas family law webinars series on LGBT issues, bought to you by O'Neil Wysocki, got to get our little plug in. And I'm Michelle O'Neil, I am the senior shareholder of O'Neil Wysocki. I'm joined by Karri Bertrand and Nick Rodriguez, associate attorneys here at our firm. This is session three of our webinar, where we are going to talk about prejudices against gay and lesbian issues in courts and this session is qualified for a half hour of CLE credit with a quarter hour of ethics credit. So this is going to be generally a little bit more just kind of discussion oriented and opinionated, opinionated opinions, how's that, about how we approach different issues and courts and everything. Obviously, we can't talk about any of our own cases and we won't talk about any courts specifically, but we will just generally talk about friendly and unfriendly courts. Not going to be as much technical legal stuff like the other presentations have been. So let's get started. Karri, what do you think is the most important question whenever you have a gay or lesbian client come in to meet with you about a family law issue, kind of what's the first thing that you're looking at in helping them navigate their case?

Karri Bertrand:

Generally, I want to know what their goals are, what their objective is at the end of the day. And I think knowing what that goal is, then I can try to guide them through what we can and can't help them with depending on how reasonable that goal is. But, did you have a specific question?

Michelle O’Neil:

Nick, what's the most important thing whenever a client comes in to talk to you?



Nick Rodriguez:


Well, first I usually let them vent. So I know there's a lot of emotion when they come meet with us for the first time, so I just kind of let them go on about what's going on with respect to their case and what are some of the issues or you know, they are kind of conflicted with. And how can we resolve that in a want? Like piggy backing off of what Karri said, what their goals are and then how can we find a legal remedy to help navigate to get to those goals. And so I was just like for them to vent with me and talk about any other issues and stuff like that.



Karri Bertrand:


It's very true, he's correct on that. Sometimes it feels like a counseling session and you got to kind of get them through the counseling phase.

Michelle O’Neil:

I always kind of break it up into three parts whenever I'm meeting with any new client, not just to a client with the same sex or gay and lesbian issue. I break it up into three parts. The first part is I let them kind of talk and vent and I gather information and listen and maybe give some guided questions during that. The second part is me imparting to them kind of what the law is that applies to their situation, educating. And then the last part is kind of that more action-oriented strategy, what would we do, what's the plan? How much is it going to cost? You know, talking about what court they're in, where they're at, how that's going to affect them. In other words, you know, you get the facts and then you talk about the law and then you talk about the law applied to the facts sometimes with gay and lesbian clients that has to involve a discussion about the court they're in. So how do you approach it whenever they're talking about where they live or where, what court that it could be filed in? How do you approach that in that initial conversation?

Karri Bertrand:

I'm pretty direct with the clients about it. A lot of times they already know and they're already nervous about it and this happens even in heterosexual couples with like dads who think they're going to be in a court that's maybe pro mom or even, you know, pro dad courts. But especially is a sensitive issue in, you know, where clients perceive that a county is more conservative and they're not going to have the same rights they would have in a more liberal county.

Michelle O’Neil:


You know, one of the things that I'm finding is that even in the counties that we call the more conservative counties or the counties that we would perceive as being unfriendly to gay or lesbian issues, what I'm finding is that that's actually a false perception in a lot of situations. That some of the judges that we might would think of as being super conservative or maybe not friendly to the gay and lesbian issues are actually quite friendly and very open and so I feel like that's changing some. I feel like that it's opening up a little bit even in the counties where we don't think of it as being open.

Karri Bertrand:

I totally agree.

Nick Rodriguez:

I would agree.

Michelle O’Neil:

What I'm finding is that some of the judges that we practice in front of, when you get to know them, you'll find out they have a brother who's gay or say an ex-husband who's gay. And so they actually have a little bit more familiarity with the issues and maybe not such a prejudice against them as maybe they once would have had. So I think that goes back to kind of the old adage of a good lawyer knows the law and a great lawyer knows the judge. So you know, whenever you're first consulting with a client, like figuring out where they live, is that a judge that you're familiar with? Is there somebody that you know that is familiar with that judge if you're not? And kind of learning the backstory about that judge can be very helpful in evaluating how you proceed on your case and really that applies to any case. That's not just a case with gay and lesbian issues. I mean, it's any case, right? Knowing if you've got a case that's involving homeschooling, knowing whether the judge has homeschooled their children is a pretty vital fact, right? That's not necessarily going to be a readily available thing to know about them. So let’s talk about, let's stick with the gay and lesbian questions right now and then maybe we'll branch off into some of the other issues as we go through this. But just strictly talking about the gay and lesbian issues, same sex divorce, gay and lesbian custody issues. So how do you go about, if you are in a court that you know is affirmatively not going to be open to, for example, a client who's let just set up a scenario. You've got a heterosexual divorce, man and woman getting a divorce. The woman decides that she is a lesbian exiting the relationship and they have a child and there's custody issues. So her preferences going forward are an issue in the case.


And you have a judge who is not necessarily super friendly to her being a lesbian. How would you approach that case? You can't get out of his court, right? I said it's a he, but it could be a she. So can first question, can you change the court?

Karri Bertrand:

I mean very rarely, I would think that would be an option. So probably not, you're probably stuck in that court.

Michelle O’Neil:

So once a suits filed, you almost can't transfer out of it. You can't pick a new judge. The remedy if you think a judge is so biased against the case that you got to do something about it, you have to file a motion to recuse. The motion to recuse standard is very, very high and it goes way beyond just I don't like you, so it almost never happens. So once a case is filed and you've got the judge picked out, I mean you're pretty much stuck with that judge. So what are some tips and tricks and techniques that you can use if you're going to be in a court that's unfriendly to your client to help that client present their best case?

Karri Bertrand:

My first thought would be to have a theme of best interest of the child. I would want to immediately take the focus off of my client and focus on what I think the court will be focusing on and should be focusing on, which is what is best for that child. You know, this isn't necessarily about mom or dad. This is about what's best for the child in the middle of this case and go from there. What experts can we have that come in and give good testimony and talk about what a great parent you are. You know, what counselors can we have you go talk to or have the child go talk to or you know what experts a big deal are actually as far as showing stability for the parent and the child and how little of an issue this really is. And I think having a theme and not necessarily creating a distraction but making the case what it should be about and not what the court may make it about, that's more the distraction to me.

Michelle O’Neil:

What do you think, Nick?



Nick Rodriguez:


Yeah, I would agree. I think acknowledging or not acknowledging the fact that she's in or now she's wanting to be a part of a lesbian relationship. I think it's not putting the focus on that, but putting the focus on her, being a mother first and everything else is really not an issue.



Michelle O’Neil:


So do you think it would matter in our hypothetical case scenario is she actually was in another relationship while she's getting a divorced versus just expressing the intention in the future?



Karri Bertrand:


Yeah. I think that matters in any case, if one party or both have already moved on, I don't think courts like that ever.

Nick Rodriguez:

Or committed adultery.


Karri Bertrand:


Well that would be adultery, they're still married, Nick.

Michelle O’Neil:

Yeah so if they're still married and I agree with you, I think in any case where you're in any divorce suit, if you have a client who is actively and openly dating other people or dating a particular person, moved on in the relationship, I definitely think that's an issue in any case. And I think in an issue with a gay or lesbian question, I think that would actually be a little bit heightened because like you said, it would focus the evidence, it would focus everybody back on the behavior of the parent, not necessarily what's good for the child, right?

Karri Bertrand:

And if you're looking at it from the judge's perspective, you've now involved the child with another person and have moved on in your relationship with another person. None of that's going to look like best interest of the child to the court.

Michelle O’Neil:


And there's a lot of courts that we practice in front of that have standing orders that prohibit overnight guests during the litigation of a romantic nature. So that would also be a problem. It could create a problem for the client to be put in a negative light in front of court. And like you said, it creates other issues that distract from the best interest of the child. So you mentioned experts, let's talk about hiring experts. So what kind of experts would you advise your client or even fact witnesses, what kind of witnesses would you look at having in a case where you were arguing for custody for a gay or lesbian client in a court that's not quite so friendly?



Karri Bertrand:


If I were trying to think like the judge, I think I would want to know that the parent is emotionally and mentally stable. So I'm thinking psychiatrists, psychologists, counselors, someone who can say, she's not jumped off the deep end or he's not making this crazy life decision because he's bipolar or he's depressed or she's, you know….

Nick Rodriguez:

Or that sexuality is fluid and that sometimes people realize at an older age, because like I said, we're kind of thought to think about being a lesbian and being gay as some sort of a choice, which we know psychology tells us that it's not. And so I think, kind of going off of that, I think having someone testify as to like as psychologist or some sort of saying, these are things that can be realized later in life, I think is evidence of this mom is not having an emotional breakdown or a mental breakdown. So I think that would be good evidence of that.

Michelle O’Neil:


And then I would think just normal parenting evidence. I mean just evidence of the person acting as a parent without regard to whether their sexual orientation is in question.

Karri Bertrand:


And most parents do parent on a daily basis and it has nothing to do with their sexual preference.

Michelle O’Neil:


So bouncing off of something that Nick said, how far down the orientation fluidity, if you're in an unfriendly court, how far down that right do you go?

Karri Bertrand:

Yeah, he surprised me with that one. I feel like that would take a lot of education, because I don't know that some courts would be ready to hear that word or even know what it meant. But if you got a good enough expert who can baby step it and teach that the judge, let your mind think a little broader.

Nick Rodriguez:

And it kinda goes back to your first point, let's try not to inflate that issue of going down that rabbit hole of like, okay, let's make this the focus. Let’s try to minimize as much as we can.



Michelle O’Neil:


Yeah. So, well I think that gender fluidity or orientation fluidity, it's an interesting topic because some of the more conservative viewpoints view sexual orientation as being one or the other. And I think you kind of said this earlier, that biology says that you're born a certain way, but you may not realize it until later in life. And there may be fluidity in that and I guess when you talk about LGBT, lesbian, gay, bisexual, and transgender, there may be even people who are bisexual who at some times in their life prefer to be one thing and then other times in their life prefer another choice of orientation and so there may need to be some education on fluidity of those choices as you age or find a different place in life.

Nick Rodriguez:


Agreed.



Karri Bertrand:


And I think if you're going to take the route of trying to educate the court, then you want to maybe find an expert that you already know that this judge likes, respects, and they're going to listen to and be open to what they say. So that would require some research and some effort on the attorney's part to make sure that person's



Michelle O’Neil:


Well and that presents a little bit of a balance problem, right? Because in some of the smaller rural counties in Texas, you may not have a lot of choices of experts and those experts may even be super conservative as well, which means you may have to bring in an expert from Austin, Dallas, Houston, or maybe even outside of Texas to educate on some of those issues depending on what the issues are. And so how do you kind of balance that we want a local person versus we want somebody who's more forward thinking on some of these issues. How do you balance that?


Karri Bertrand:


I think the more you can narrow the specific issues you want the experts to address, you might be able to split it and say, well, I may have to bring in an expert from somewhere else to talk about the fluidity, but this expert can talk about the parenting and how it's a nonissue and then somewhere between the two, the judge can draw his or her own conclusions as far as, this is really not an issue and she's a really good parent, you know?


Nick Rodriguez:


And I think if you're bringing someone from like out-of-state or someone who's not from the area, I think a judge sometimes is reluctant to take the entirety maybe of their expert opinions. So you might want to keep it very narrow. I’d just be like this expert will testify to this particular issue and then we're going to have all these other psychologists or experts discuss things related to the larger issues.

Michelle O’Neil:


And I like that point. You could have a more global expert or maybe the custody evaluator does more of the custody evaluation, looking into everybody. You could have your own parenting expert who looks at kind of a one-sided evaluation of your client and their relationship and then maybe have the separate expert that is just on gender issues or just on sexual orientation issues that could testify in a very limited scope as to that specific, whatever it is that's going on in that case. How do you deal with the judge who says, I don't want this child exposed to that lesbian lifestyle. I mean, what do you do when you're in front of a judge like that and you're representing a lesbian or gay client who talks about it as a lifestyle.

Karri Bertrand:

Michelle has trained me to preserve error.

Michelle O’Neil:

Preserve error! That's one way of doing it.

Karri Bertrand:

I might need to remind the court of about the constitution. But yeah, you're got to tiptoe because you're stuck in that court and this is what the judge is saying, so I mean it's a problem.

Michelle O’Neil:

Well, and what I would say is find commonality. Try to find if you can, try to find commonality where the judge looks at your client and sees them as having something in common with him or her. So if you have, for example, if you have a female judge and you notice that the female judge is wearing pants in the courtroom, then you could maybe make an argument, kind of likening some things back to when women couldn't wear pants in the courtroom. Find some sort of commonality. Maybe you have a judge, a based on your research, the judge is interested in NASCAR. So you have your client talk about NASCAR. I mean that kinda goes back to knowing the judge and it goes even further than just knowing their viewpoints on this issue or that issue. But kind of finding that commonality that you can have them have your client be like them in some way if you can possibly find that.



Nick Rodriguez:


Find something where I think people can identify with things that they're affected by so you can find that, expose it.



Michelle O’Neil:


I think at the end of the day, judges are humans and they're lawyers. They're lawyers that used to practice just like we did. And you know, now they're in a different aspect of the roles that we play, but they're still just people. And so they still have prejudices. They still have first impressions. They still have likes and dislikes and they may like vanilla ice cream or strawberry ice cream. They still have kind of all those things that we humans have. And I think sometimes as lawyers we tend to forget that judges are just human and that they still have some of those human components that you can actually address. So, finding those commonalities, especially whenever you're in a small county, it's very likely that the judges already going to know your client, whether they're gay, lesbian or otherwise. I mean, whatever they are, the judge may very well already know the client and that can be good or bad. The judge may already have an opinion about your client regardless of their orientation. The judge may have an opinion about them as a person or as a hard worker or as a parent or whatever in those small counties. I mean, they may already see the parent at the ballgames or whatever, or at church. So they may have already formed some opinions about your client when they're in those small towns like that. And you may already have a hard row to hoe, to use a Texas saying, in front of that judge. One of the tricks that I like to use that I think is way underused in family law, in what we do, is a day in the life video or a video that kind of is a compilation showing illustrating the client as a parent. And I think those are very underutilized. We used to use them a lot more in days gone past than we do now. And I think some of the reasons we don't is because of the restrictions that we have a lot of times on our time and the difficulty of getting some evidence like that video evidence used in court. But I think it can be so powerful and lawyers use day in the life videos in other areas of law, like in accident injury law, those kinds of things to show maybe the new disability of a client after an accident had happened to show damages. But I think in family law we underutilize those. And this to me would be a prime example of a time where a day in the life video might be something that could be super helpful in persuading the judge and in kind of seeing that commonality, identifying the client not as a lesbian or not as a gay person, but back to that as a parent thing.

Michelle O’Neil:


So you know what I recommend is doing some video. Get a production guy, like our guy who's doing our producing today to follow the client around acting like a parent in some ways. Now obviously you have discovery, you have to produce those type of things and whatever. But have somebody follow them around doing those parenting things and push it all together into a little production video of the client as a parent. And it identifies them and shows them in that role where when you're sitting in a courtroom, courtrooms are so bland and most of the time the judges don't even see the child other than maybe in a picture, if you introduce pictures, which I think pictures are a very important part of the evidence, but the judge isn't necessarily gonna even ever see the child. And so having that video that shows the uniquenesses of the child's personality or doing something the child likes and having the parent be involved in that kind of gives that opportunity to highlight the parent in that parenting role that the judge might otherwise not ever get to see. If you don't have the budget to do that kind of day in the life video, you can do that with even just videos that they take at baseball games. I mean even just telephone/cell phone videos, you can do that with pictures if that's all you've got, then you can do pictures. You could even do a slide show presentation that's videoed with pictures or evidence like that. So to me those are some of the ways that you can more humanize and honestly, all of these tips apply to cases, no matter who your client is. I mean, you could have a client in a negative aspect in a court just for other reasons, not a gay and lesbian issue. So we're kind of popping up on the time here. Let's talk for just a minute about some of the fringe issues. So for those of us in the city or those of us who are involved in LGBT advocacy, they may not be fringe issues, but in some of the courts in Texas, they may not have ever seen a transgender person. They may not have ever seen a non-binary person. They may not have encountered somebody like that. So how do you handle having a client who is a transgender in a court that's never seen or heard really or knows what transgender means?



Karri Bertrand:


For me, I pretty much give the same advice across the board to a certain extent, dress, groom and behave appropriately for the situation. You're going to court, you want to show the judge in the court respect. No profanity, cover up your tattoos, no cleavage. Downplay if you have a bunch of piercings, I don't want to see them. Purple hair, maybe go buy a box to dye, extreme haircuts, anything. And it goes back to my theme of focus on the child. Anything that's drawing the attention to you, fix it, change it because this isn't about you.

Michelle O’Neil:

And you're not saying change your transgender…

Karri Bertrand:

No, no, no, no, no.

Michelle O’Neil:

You're saying basically present yourself in the best light for the audience that's viewing, which is the judge.

Karri Bertrand:

When we appear in court, in front of the judge, don't be attracting attention to yourself. You can maintain whatever. If you're a transgender and wanting to dress female or male or you're non-binary and you don't really wear clothing either way, that's fine. If you're dressed appropriately and you're being respectful and you're not drawing an unwanted attention to yourself due to other distracting piercings, tattoos, purple hair.



Nick Rodriguez:


Yeah, I agree. I think that's just across the board for anyone. Treat it like you're going to your grandmother's house, you're not going to curse in front of your grandmother or stick feet up on the table, get up on the witness stand and just say something extremely outlandish.

Karri Bertrand:


Don't chew gum.

Nick Rodriguez:

There's certain things you know that I think, first impressions matter and I think making a good first impression and a lasting impression. I mean, we all remember the kid in kindergarten who wet his pants. I think that was the first impression, I mean, people don't forget. Same thing with the judge

Karri Bertrand:

Poor kid.

Michelle O’Neil:

Nick’s advice, don’t wet your pants when you go into the courtroom.

Nick Rodriguez:


Those impressions matter. That's what Karri was ultimately saying.

Michelle O’Neil:

Absolutely. Put your best foot forward and approach it with the solemnity that court requires and that everybody expects and keep the focus on the child. I agree with you. I think that that is ultimately the bottom line of it is do everything you can to focus on the child. You'll never ever go wrong if you make decisions about the best interest of the child and do everything you can to kind of take that focus on whatever those extraneous issues are off of you. Alright, we'll wrap this one up. This is the end of our presentation on addressing prejudice against the gay and lesbian issues in courts. We're going to take a little bit of a break and we're gonna move on. Our last presentation of this webinar is the recent case law developments in same sex issues. We'll be back in just a minute.