Tuesday, April 21, 2015

What Kind of Witness Are You?

My post on Friday brought up a topic that I'd like to explore with you further - the difference between a fact and an expert witness.  Under our parenting coordination rules, a parent coordinator is a fact witness.  That custody evaluator I wrote about - expert witness.  Your child's teacher - fact witness, but also maybe expert.  Your doctor - maybe fact and maybe expert.  Oh my goodness!  What's the difference? 

Let's start with the simple differences.  A fact witness may only testify to the things they saw, said, tasted, smelled, and felt.  They can't say what someone other than a party (that's the Plaintiff or the Defendant) said.  In other words, they may only talk about facts.  They cannot give an opinion.  They may not draw conclusions from what was said, seen, tasted, smelled or felt.  So, in the case of a parenting coordinator, they can talk about what they saw concerning the interactions between the parents, they can describe whether someone appeared angry or sad or happy, they can talk about their communications with the parents (assuming the parents are the Plaintiff and the Defendant).  They cannot say whether they think one parent was right or wrong.  They can't say whether one parent was acting just to get the other one's goat.  They can't say whether one parent or another is mentally ill.  To quote Joe Friday from "Dragnet," "Just the facts, ma'am."

An expert witness is someone who is qualified because of their education or experience to draw conclusions from the facts.  So, they observe the facts and can testify about them.  They can then draw conclusions from those facts, based on their education and experience.  Our custody evaluator may see all the same things as the parenting coordinator, but because of their designated role in the case, they can draw conclusions from the facts.   They are permitted to testify to their opinions and conclusions.

Sometimes, the same person can be either a fact or an expert witness.  Sometimes a teacher is a fact witness when they observe how a child is doing in school, if the child seems out of sorts on one day as opposed to another, whether the child is paying attention, clean, or hungry.  Some teachers have more training or specialized education than others, and their knowledge of how children learn, child development or special education; those teachers could also testify as an expert witness even though they are also the child's classroom teacher.  The same thing with doctors.  A doctor can be someone's treating physician, and only their treating physician, or they can have enough knowledge and training to be deemed an expert and give their opinion based on their observations.

Wow, this is confusing, and I'm a lawyer.  Why is it we think clients will understand the difference?  Yet, in almost every set of interrogatories I send or receive, clients are asked to identify all expert witnesses and in another question, to identify all fact witnesses.  Most clients don't get it right, and can you blame them?  I think I'll just give them this blog.  Here in the Trenches.

Friday, April 17, 2015

Banging my Head Against a Wall

I wish there were a day of the week that began with "P".  Then, instead of Throwback Thursday, we could have Pet Peeve Priday.  Oh well, you can't have everything.  My pet peeve is therapists.  Some of my best friends are therapists.  Really.  I love therapy.  Especially here in the Trenches, therapy serves a very important role in helping our clients work their way out of the Trenches.  Clients feel heard and understood; therapists walk a really fine line to help them feel that way while at the same time addressing the hard issues.  Funny thing about many therapists:  even when they do couples therapy, they hate having conflict in their own lives.  Like many lawyers here in the Trenches, they work very hard to avoid it.  Which brings me to my pet peeve.

Sometimes, therapists have roles that are not confidential.  One of those roles is acting as a custody evaluator.  I'm not talking about those therapists here.  Another role is acting as a parenting coordinator.  Some therapists view this role as akin to parenting or couples therapy,  The problem is that it is not a confidential process, which means they can be called to court to testify about what happens in those sessions, how everyone behaves, whether one parent or the other cooperated and whether anyone broke agreements made there.  They are supposed to be able to be neutral third party observers who can provide helpful information to the court about the parental ability to cooperate and co-parent.  The therapists who are also qualified and have served as custody evaluators in other cases are not afraid to tell the hard truths, even with both parents in the room.  The therapists who are not are wishy washy, and flip flop.  They tend to try to paint each parent as bearing the same amount of blame and responsibility, even when that's not the case, and even when they have told quite a different story off the record on multiple occasions.  It's not that they're lying, exactly.   No, that's not true; they really are, and they get caught by the contradictions between general statements and specific observations of behaviors.  It's so frustrating, and makes their testimony worthless.  May as well call it therapy for all the good the lack of confidentiality does to help the court make a decision.  Ripping my hair out.  Here in the Trenches.

Tuesday, April 7, 2015

Liar, Liar, Pants on Fire

What's a lie?  Is it the same as an untruth?  What about a fake?  Well, a "lie" is defined as "an intentionally false statement."  An untruth is simply "a false statement."  A fake is "a thing or a person who is not honest."  Clearly, they are not the same things.  I look at them this way.  If I'm running down the road, and I see a car approaching that has on its turn signal, I assume it is going to turn at the next available street in the direction of the turn arrow.  If the car does not turn there, whether the turn signal is a lie or an untruth depends on the driver's intent.  If the driver thought the next street was their street, or if they forgot the arrow was on, the turn signal is an untruth.  If, on the other hand, the driver knew it wasn't their turn, but wanted to mislead me as to where they were going, the turn signal is a lie.  A fake is what the turn signal in fact was, as it was not correct, regardless of intention. 

Here in the Trenches, we deal all the time with things that are not true, and things that are fake.  We have to determine whether what is not true is a lie or simply an untruth.  So does a judge.  Sometimes, it's not easy, and thus, sometimes we get it wrong.  Wait.  Do people really lie on the witness stand?  You bet the do.  Even after they swear an oath to tell the truth.  Yup.  Take one of my cases. The father testified that he was going to remain in Maryland with the child and settle here.  He also testified that he and his fiancĂ© were going to be married after the trial.  After the appeal period ran, it came out that he might, in fact be moving to another state, and that he thought he might do so at the time he testified he wasn't moving.  Certainly, his testimony was untrue.  Was it a lie?  Maybe.  If he hadn't really made up his mind, but he thought he might stay here, then it simply turned out to be untrue.  I think it was a lie, but that's just me.  It also came out that his fiancĂ© moved out 2 weeks after trial and that they had broken their engagement.  Was the fact of their marriage untrue?  Yes.  Was it a lie?  Given the timing of the broken "engagement", and the timing of the making of the engagement coincidentally right before trial, I say yes.  He said it to deceive.  Even if neither of these statements by the father were lies, is he nevertheless a fake.  You betcha. 

People lie all the time.  Sometimes, it's the little white lie that spares someone's feelings.  At others, it's the lie of omission, of not telling the whole truth with the purpose to deceive.  At still others, it's an outright lie.  We all know people lie.  We teach our children it's a bad thing from the time they're small.  We tell them they can tell us anything, and so long as it's the truth they won't get in trouble for telling us the truth.  We have honor codes in school because lying about your work is a bad thing. We tell children this because people lie.  Yet, we assume people tell the truth.  In law school, even, we teach that people don't lie on the stand, and we don't say anything that insinuates people are less than truthful.  In the outside world, however, we check alibis, we require corroboration of testimony, and we even have a name for the crime of lying on the witness stand - perjury.  Why would we do any of that if people don't lie.  Don't call it a simple untruth when in fact it's a lie.  That would be fake.  Here in the Trenches.

Wednesday, April 1, 2015

My Children Tell Me Everything?

Parents think they know their children.  They're sure they have a close relationship with their children and so their children will tell them what they're thinking and what they want.  They can't understand why anyone would need a child specialist to help them in the collaborative process.  Why would they need a third party to talk to their children to find out what they think about the divorce and where they will live?  What could a third party find out that they don't already know?  Plenty.  The wonderful thing about the child specialist is that they are trained to talk to children in a developmentally appropriate way.  They are also trained in translating what they learn from children to tell their parents in a non-judgmental, non-threatening way.  Parents always learn something they didn't know, and this information helps them help their children and aids them in developing a parenting plan.

You don't believe me?  Consider this.  Mom and I are going to California.  We're going to be near where my adult nephew lives. so we're going to visit him.  One of the things we want to do while we're there is visit the San Diego Safari Zoo Park.  We thought we'd invite my nephew to join us.  My nephew is studying for his Phd.  He's very busy.  His father told us not to ask him; he was really too busy to go to the zoo with us.  He might be too busy with work to do much. We asked him anyway.  He was thrilled to join us.  Why was his father wrong about the trip to the zoo?  Did my nephew lie to him? No.  Do they not have a close relationship?  No, they're very close.  Then why?  Well, it all depends on their conversations.  Maybe when they talk, my nephew talks about how hard he's working and how he has no time for anything.  Maybe he's always wanted to go to the zoo, but the subject never came up.  Maybe he needs a break.  Maybe he's excited for the visit.  Who knows?  The fact is, his father didn't.  Children never tell their parents everything.  They have secrets just like the rest of us.  Sometimes, they don't tell their parents because they don't want to hurt their feelings.  They also don't want to make them mad.  Sometimes they tell each of their parents different stories, because they instinctively know what their parents want to hear, and they want to protect them.  That's natural and normal.  It's also why the child specialist is so helpful in uncovering what the children really think and feel.  Children will tell someone who is not their parent.  This professional is the best person for the job.  In collaborative practice and here in the Trenches.