Monday, March 28, 2016

What can Happen if you Refuse to Answer Discovery in your Case

Discovery.  Most people hate it.

If you are a party to a divorce, or any other type of adversarial lawsuit (child support, modification, probate contest, contract suit, neighbor dispute, suit for money or property, and many other types of case) you may be served what is called "discovery".

The term "discovery" can include a deposition or subpoenas to bring documents or things.  It also includes the more commonly used types of discovery which are written questions, requests for documents, and requests for other types of information that is relevant to the lawsuit.

Some people decide that they will simply refuse to answer the discovery because they don't know the answers, have decided that it is too difficult to understand or they believe the information is no one else's business.

Unfortunately, if you are a party to a lawsuit, you must comply or face possible consequences.

Some of the consequences of refusing to answer are:

  1. Losing something that you want because the information to support it is simply not there (Example: You want temporary support from your ex-spouse in a divorce case but don't provide enough evidence to show that your expenses warrant what you say you need.)
  2. Your pleadings are "stricken".   (Example: You file a lawsuit against your neighbor for trespassing and also for causing water damage to your property. You refuse to answer discovery out of anger even after ordered to do so.  The judge then orders that your pleadings about the damages be "stricken". There goes your chance to recover financial compensation.)
  3. Paying the attorney fees of the other party for having to force you to answer.   (Example: In a case against your former business partner, you answer discovery in a very sloppy and half-hearted manner, saying "he can get the information himself if he wants it."  In a court hearing, your ex-partner's attorney asks the judge to order you to answer the questions properly and to pay her attorney fees of $500 for all the time and trouble she took to force you to answer the requests. The judge grants her motion and you have to pay). 
  4. Looking really bad in front of the court.  Judges work hard and want to move cases efficiently through their courts. They are generally not happy when they have to take time from their busy schedules to order litigants to follow rules that they should have followed in the first place.   And a bad attitude does not gain any sympathy. 
  5. Paying more fees to your own attorney.  It takes less time and money to just answer the questions in the first place that it does to procrastinate.  If you do procrastinate or refuse, then your legal dollars will be spent on your attorney and legal staff repeatedly contacting you to request your information, arguing with the other side and trying to keep you from facing any of the consequences listed in numbers 1 through 4, above, rather than working on other aspects of your case. 
Yes, it can feel confusing and overwhelming when you read it. But, ask for help, don't ignore it!

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
Se habla español

Monday, March 21, 2016

Just say...No, right?

Your ex shows up to pick up your child for visitation and is obviously impaired by drugs or alcohol. You are convinced of the danger of sending your child in a vehicle with someone who can barely remain on two feet.   But you think about the court orders in place. Now you feel that you are between a rock and a hard place.   Let them go = risk to safety.   Keep them home = risk that you are violating court orders.

You are not required to put your child in harm's way! It is your job to keep them safe.  However, the situation may not be clear-cut. You may not be able to tell whether or not your ex-spouse is still drinking  or is impaired, and you probably won't always be there to witness what is going on.

If you live with this kind of stress, here are a few things that may help:
  1. Control what you can control.  During a divorce or modification you have some power. Talk to your attorney, the mediator or the judge in the case about inserting specific language in the final court order that prohibits your ex from drinking at specific times. ("within 24 hours prior to visitation and during visitation", as one example). 
  2. Get witnesses when you can, other than your children.  If the witness is a friend of yours, yes, she is partial to you, but at least there is another person who can vouch for you. KEEP A JOURNAL of dates, times, and events.  This will be very valuable to you in the future if you have to file a court action. 
  3. Involve the police when indicated.  If your ex has peeled out of the driveway, creating a hazard to others, consider calling for police assistance, or if your children are in danger, get help. 
  4. Have a certified copy of your court orders handy in case you need law enforcement to get involved. 
  5. Know when to ask for help. If you need counseling, support from friends or family or legal assistance, find it!  You need to take care of yourself to be there for your children.   It is worth your time to have a legal consultation to have your questions answered. 
If the prior visitation orders are no longer working for you, it may be time to file for a modification of those orders. Your family law attorney can help guide you. 

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
Se habla español

Sunday, March 13, 2016

Anxious About Missing Provisions in Your Temporary Orders?

"Temporary Orders" in a divorce case are court orders which are in effect until the final decree is entered.  They are temporary because they do not, and are not intended to deal with all the situations that will arise in the future. They are a short-term solution to keep things stable while the divorce is proceeding. 

The "Final Decree" is a document that will be created when the divorce case is all finished and there has been a trial or an agreement of the parties which has been placed on paper, signed by the judge and filed with the court.    This document should clearly split all property and debts between the parties and spell out visitation and support in full. 

Temporary Orders always contain provisions for dealing with current bills, property access, visitation and support.   Any and all of the "short-term", day-to-day issues that will happen between the date of filing the divorce and the anticipated last official date of marriage can be found in Temporary Orders. 

Divorcing spouses can sometimes become anxious about "missing provisions" in Temporary Orders. An example would be a large bill that is going to be due in 13 months, such as a balloon note, In a case that is expected to take 8 months to finish, this event is unlikely to happen prior to the end of the divorce, and may require much additional negotiation on the part of the spouses in order to decide how it will be handled.  Therefore, it may not be found in the Temporary Orders paperwork even though both parties acknowledge that it must be dealt with.   

If you are concerned about any "missing provisions" in your Temporary Orders, don't lie awake at night worrying.  Speak to your attorney and see whether your fears can be soothed, or whether your attorney needs to deal with the issue that is concerning you prior to the finalization of the divorce. Additional agreements can be reached between spouses about specific issues, and can be put into writing and filed with the court without the necessity of a hearing if there is an agreement.

One final note:  Temporary Orders are temporary. This means that the provisions in the paperwork are not set in stone. Just because one spouse has full access to the home, or use of a vehicle in the temporary orders doesn't mean that that person will be the ultimate owner of that piece of property.

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
Se habla español

Monday, March 7, 2016

Are You Being Served?

If you are served with legal papers, it may be tempting to ignore them, or to procrastinate. However, doing so can result in a judgment entered against you. Whether the judgment is financial (you must pay money), or affects your life in other ways (a lien on property, a change in visitation of children, a judgment about who owns real estate), you may later be very regretful that you didn't protect your rights when you had the chance. 

So when should your answer be filed?  What information must your answer contain?   How and where should it be filed?  Who should file it, you or your attorney?   The answers to these questions will vary depending on whether the case is filed in Justice Court, District or County Court, and whether the case is filed in state or federal court.   You also may have a "complaint" or other legal proceeding filed against you which will be decided by a governmental agency, rather than a court.   It is just as important to take these seriously. 

And don't think that you can ignore the situation if you don't see a uniformed constable serving you. Real life is different than television.  You can be served/notified by private process server or other acceptable person, by certified mail (even if you choose not to pick it up), and, in some cases, by "other methods", such as another person accepting service for you, someone posting the complaint in a proper location, or even by publication in a newspaper. 

We have had potential clients come to us after a judgment has already been entered against them and we have asked them, "Why didn't we see you sooner?"  Some of the answers we have heard:  "I thought my spouse (or business partner) was taking care of it." "I knew I wasn't at fault."  "I don't have anything worth anything anyway.""I didn't understand the paperwork."  "I didn't think they would really go through with it."  "I thought I had 30 days to answer it" (Justice Court cases have a much shorter answer time.)

I always have a sinking feeling when I have to tell a client "if only you'd come in sooner!"   Do yourself a favor; if you get served with a lawsuit, summons or complaint, make sure that you take care of it promptly and get advice from an attorney. Don't ignore it!  It's worth 30 minutes of your time to have a legal consultation and avoid later problems. 

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
Se habla español

Tuesday, March 1, 2016

Small Business Owners, Keep Your Client's Information Secure!

Small business owners, you know how important it is to keep your own financial and banking information safe from digital predators.  Don't forget to give your client's private information the same careful consideration.  Here are some ways to do so:

  1. Keep control of your hard copies.   Keep client's information in a safe place. Shred sensitive information, don't just throw it in the regular garbage or put intact (not shredded) papers in a recycling bin.   
  2. "Client information" covers a lot of ground. It includes not only social security numbers, driver's license numbers, credit card information and bank account numbers, but also includes your client's address and phone numbers. 
  3. Help clients help themselves. Even if you client is willing to send you their personal information in an non-confidential manner, don't accept it. Tell clients not to send personal data over social media and instruct them not to drop off sensitive hard copies in an unsecured way (leaving hard copies on a vacant desk or taping to a door). 
  4. Follow PCI rules.   PCI stands for "Payment Card Industry Data Security Standard".  If you are a merchant who accepts payment cards, you should be aware of these regulations and how they apply to you. If you are not, you are taking a risk.  The PCI website will give you more specific information. 
  5. Follow the guidelines in your own industry.  If you are a health care provider, this means following HIPAA. CPAs, lawyers, realtors and other professionals will have their own guidelines for handling confidential client data and information. 
  6. Have a good I.T. plan.   Most breaches nowadays are digital. This means securing your website, server, and online payment options. Invest in a good I.T. evaluation if you suspect that you may have a weak link in your system. You should have good virus programs on your devices that are updated and working. Your programs should be current and up-to-date. Don't use public WiFi to transmit your client's information. 
  7. Use common sense. For instance, don't share private information on a cell phone in a public place. It is very easy to misjudge how loudly you are speaking and who is listening.  Don't leave papers lying around on a desk that has public access. Keep hard copy documents clipped together, in files and well-organized so that you don't accidentally release someone's information to a third party. 
Putting these safeguards into effect may take a little time at first, but soon will become second nature.  

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
Se habla español