Rhode Island Divorce Tips

Recently a colleague of mine, Attorney Tim Conlon, won what is reported as a tremendous victory for his client by settling a case with $24 Million dollars in assets.  The case was won after Attorney Conlon used forensic evidence from a computer to show that the husband had hidden or failed to disclose nearly $11 million dollars in assets that were arguably marital.

Attorney Conlon was reported as saying in a PR Web Press Release:

"In the 'old days' a divorce investigation meant surveillance, stakeouts and stacks of documents . . . Today, evidence of misconduct is often sitting in the family computer, if you know where and how to look."

To my knowledge, Attorney Conlon is much like myself, a very modern attorney who himself has harnessed that power of technology in his practice in a manner similar to what I have done while still maintaining support staff which is not only traditional but it is an effective way to practice.  Attorney Conlon was both an inspiration and a catalyst for my early stages of planning for my own practice to go virtual. 

Yet I digress.  What interests me most regarding the various press releases on Attorney Conlon's victory is more what they do not say than what they do say. 

Though Attorney Conlon is most assuredly a well-known and respected family court litigator, what is not said is only inferred by the surrounding facts of the various press releases. 

The marital estate Attorney Conlon was litigating was initially valued at $13 Million Dollars by the husband in the case.  By no means was this a nominal marital estate.  In fact, it was sizable even at that figure.

This speaks more to the case than people might imagine.  There are many people who get divorced before the Rhode Island Family Court who simply can't afford Attorney Conlon's hourly rates whether he is  worth it or not.  Yet even at a $13 Million Dollar Marital estate Attorney Conlon's client could afford to employ him.  It is certainly to Attorney Conlon's credit that he took the initiative to seek out forensic evidence on a computer used by the husband to develop further evidence and strengthen his posture to settle the case for his client.

Yet "forensic evidence" as stated by the press releases suggests something more.  I believe a skilled practitioner in Rhode Island such as Attorney Conlon would surmise that he needed to develop this evidence correctly in the first instance for it to be of an value at all.  This means that to develop this evidence he would need it to be obtained by professionals who were experts in their field and could testify in an expert capacity as to what was found on the computer, the technique that was used, the reliability or fallability of that technique, his or her experience in undertaking this kind of forensic computer retrieval, how conclusions were reached that the data retrieved was reliable and was, in fact, linked to information the husband was concealing, etc...   What does all of this mean?  It means that an expert was needed and experts cost money. 

Thankfully I have had the opportunity to speak with a few of the leading experts in this field around the country and all too quickly was aware of the cost to my client of using such experts just for the retrieval of the data.  In most instances the cost was about $5,000 just for the initial steps of retrieval regardless of whether helpful data was retrieved or not.  Now, while this is certainly possible even on an assumed $13 Million Dollar marital estate, it might not be possible on a $500,000 marital estate or even a $1 Million Dollar marital estate since in many instances marital estates are tied up in real property or investments and are not in liquid funds to pay attorneys or forensic experts which may require as much as $15,000 or even $50,000 for those with substantial credentials to obtain the data and be prepared to link it to the marital estate or to the non-disclosure of assets by one of the parties to the divorce.

In several cases of my own, forensic recovery of data on a personal computer has played a part in trying to ascertain where missing monies went.  However, in those cases the clients did not have the type of monies necessary to engage a forensic recovery specialist even after the computer system at issue was produced. 

Despite having run my own computer business prior to becoming an attorney and my own knowledge of the inner workings of computers I found that even after discovering information damaging to the other party, it would not be considered by the court because I was not technically "an expert" and an attorney can not as a matter of ethics act as counsel for a client and testify in court on the client's behalf.

Without an expert in computer forensic data recovery I could not make a direction connection to the information I had discovered and therefore it was useless.  Why?  Because the opposing counsel was well aware that I could not use it at a trial because I had no expert to testify to it in any meaningful sense and my client could not afford the monies necessary to recover the data and be prepared to testify at court.

Attorney Conlon's statement is most assuredly true.  Many times what is needed for a client's case sits on the family computer.  Yet the cost for most family law cases is far from affordable. 

One family court judge commented to me in a chamber's conference that if the marital estate can't afford to bear the cost of the forensic expert then there is not enough in the marital estate worth arguing about.  Unfortunately I have to disagree.

The United States and Rhode Island have citizens with all variations of economic situations.  Some families range from substantial debt created by gambling addicts as against reasonably moderate assets attained during the marriage which, if taken at face value might wash each other out.  Assuming even for the sake of argument that the assets total $500,000 in equity and one party is an internet gambling addict who has racked up $480,000 in internet gambling debts that was unknown to  the other party, a judge might consider the actual equity and value of the marital estate to be $20,000.  This is a case where even nominal Rhode Island attorneys' fees and a forensic expert performing document retrieval might consume the judge's perceived value of $20,000 regarding the marital estate.  Yet shouldn't the spouse who has been wronged by the gambling addiction of the other spouse have the opportunity to demonstrate the wrongful conduct of his or her spouse and take the position that based upon the spouses wrongful conduct that the gambling spouse should be responsible for the entire debt and be awarded only a small portion of the remaining assets of the estate?

The foregoing is certainly an arguable position and a reasonable one to take.  Yet without the Judge's acceptance that the wronged spouse should be entitled to take this position and use or otherwise liquidate a portion of the $500,000 in equity in the marital estate without considering it against the accumulated debt of a single spouse in order to engage a forensic expert, the wronged spouse is out of luck and funds are not available for the wronged spouse to have even the slightest opportunity to prove his or her case.

The conclusion to be drawn here is that it is no monumental task to determine that hidden information may be available on the family computer through forensic evidence.  What is of more consequence is identifying a proper expert and even more crucially having the funds available to pay not only your attorney's fees and costs but also to pay an expensive forensic expert to go through a computer with the hope that the forensic expert will find something that aids your case.

The fact is that experts cost substantial money here in every field and to a person who has made $500,000 in a 6 year marriage and $80,000 of it is unaccounted for, that $80,000 is a big deal.  It may not be a big deal to a judge or it may not be a big deal to someone with a martial estate of $24 Million Dollars, but it is certainly a big deal to a middle class american spouse who has busted his or her hump to accumulate that money.

So what does this mean?  I see it this way.  Money affords you the high-priced lawyers.  More importantly as in Attorney Conlon's case money, it affords you to retain the forensic computer expert and perhaps the justice that the victim of a $500,000 marital estate might not be able to afford or the court might not allow you to use marital assets to go on what one judge has termed a "fishing expedition."

In the end I am certain that Attorney Conlon was innovative and creative in reaching the settlement for his client, yet just like the others who work hard behind the scenes at the courthouse but may not get the public credit they deserve, it is the marital estate's funds and the forensic computer experts who retrieved the crucial data needed for the victory . . . but at what cost?

Shouldn't middle americans be entitled to the same methods and resources to save their hard earned $80,000?  Or is this reserved to the multi-millionaires of the world?

My point and tip is simply this.  It is fantastic what Attorney Conlon was able to do for his client in a multi-million dollar marital estate, his efforts should not be minimized.  Yet you should not be disillusioned into thinking that if $50,000 or $80,000 is unaccounted for in your marital estate that you will have the opportunity or the resources to be able to afford the luxury of a forensic computer expert to find it on your family computer due to the cost.  The cost of the expert alone may outweigh what one spouse may or may not be hiding from the other spouse.  If their is not enough money in the marital estate to go on what may be seen by a family court judge as a "fishing expedition" for evidence of misconduct, the Rhode Island Family Court may prohibit this type of search at all.

It's no secret that Rhode Island divorce lawyers and lawyers in general have a poor reputation with the public.  Strangely I was surprised by a very unique telephone call the other day.  The call was from a person in the midst of a divorce and his concerns seem to puzzle me even as I write this article.

I had been planning to go to what I refer to as a "Virtual Office" concept in about 8 months with my law practice which is dedicated almost exclusively to Rhode Island divorce and family law issues. 

However, as gas prices rose to new heights and Rhode Island was declared to be in an official recession it became imperative that I accelerate my plans and convert my divorce practice to a "Virtual Office" concept this month rather than waiting for my full transition to occur on the gradual basis I had planned.

I reached my decision after reviewing the needs of the Rhode Island community as a whole and balancing various financial factors relating to practice costs and expenses as against and weighing it with the and the significant adjustments I would have to make to implement this new and beneficial concept for my clients.

This Virtual Office concept is bound to raise some questions by those who have not embraced technology as a means to save them time and money.  I expected that.  After all, it is concept I have been developing for the past three (3) years by listening to other attorneys, attending seminars and researching the benefits to my clients of harnessing technology driven business solutions.  To my knowledge I am the only Rhode Island Divorce Lawyer who has taken the concept to this degree.

Though complete transposition of my Rhode Island divorce practice will still not be fully effective for another six to eight months, the benefits both for me and for my clients are more immediate and nothing short of staggering.

Yet in the same instance a call I received from a prospective client recently gave me a glimpse of the concerns clients will have despite the benefits clients receive some of which are virtually unbelievable (no pun intended) as compared to the traditional practitioners who cling tightly to typewriters, secretaries, paper files and computerless office structures!

I received a call from a gentleman who was in the midst of a divorce but was questioning whether he chose the right attorney.  This by itself is not surprising, it happens frequently especially when retainer funds appear to last a short period of time in comparison to the client's expectations.

In this case the gentleman was being charged $200 per hour which is roughly the going rate for an attorney experienced in the practice of law and particularly in the practice of divorce law.  However, this gentleman expressed that he was six (6) to eight weeks into his case and he believed that roughly $4,000 or sot had been expended on his case.  The gentleman stated that numerous petty issues had come up and his attorney was trying to deal with them through letters and phone calls but that his attorney seemed to be stonewalled (for lack of a better term) by the opposing counsel. 

The crux of this man's call was whether this was common, whether he was getting reasonably accurate advice and whether he should get another lawyer.  I explained to him that it was not necessarily common that various minor issues would become so costly early on in the case but that it could happen.  We discussed the advice that he was given, matters which are confidential and therefore will not be mentioned here, and whether he should retain another attorney because of the cost.  I explained to the gentleman that I understood his frustration and was unfamiliar with the lawyer he had chosen but that at $200 per hour it only took 5 hours of the attorney's time to go through $1,000 of his retainer and that 20 hours spent on a divorce case was not unreasonable at the going rate for experienced attorneys.

Then the man asked me what I do and what makes me different.  This was the first time a prospective client had actually asked me about my Virtual Office concept and what it entailed.  Needless to say, though I was excited about explaining my office concept the client was skeptical because the rate the client was paying would be substantially lower than what he was currently being charged. 

The explanation went something like this.  For the sake of discussion let's assume the man's name is Jared.

What I've done here Jared is nothing short of eliminating my overhead and then harnessing technology to do the work for me.  I have no secretary so my client's don't have to pay for one.  I work out of a home office where I have everything I need.  You get telephone access just like any other traditional attorney.  I have a dedicated fax line just like any other attorney.  I have email that is checked 5 to 10 times per day if not more and clients can get
hold of me.  I have high speed broadband internet access for legal research, email and soon  dedicated website tools will allow my clients so receive documents on their case literally within hours and sometimes even minutes after I receive them by mail or when I send documents to the court.  This eliminates 90% of postage costs, envelopes, toner and even paper supplies.  Clients can interact with me on the telephone and it doesn't cost them any more on an hourly basis because I absorb the costs, even if they are long distance.

Several months from now, if people don't know how to use these services, I intend to have live streaming tutorials that can take them through it step by step.  My clients can see me interact regarding their case if I send them a video message or see my picture on one of my websites while talking to me.

Jared was concerned.  He felt his matter deserved a more personal approach and he wanted to be able to come to an office and meet with his attorney.  I explained that I was in the process of finalizing arrangements with a local colleage to utilize a spare room for those clients who wanted a traditional sit down meeting and that was certainly possible because I realized that for some clients this might be too much of a shift.

Jared expressed that he wasn't really comfortable with the whole Virtual Office concept because he didn't see his attorney as a real attorney with an office and a sign on the door.  In the end Jared said, it sounds too good to be true and if it sounds that way, it usually is.  I continued to explain.

Jared, my concept isn't for everyone.  I'm an innovator and though I could take this innovation and keep my rates the same, I've chosen not to do that.  It doesn't help people if I do that.  All it would do is put money in my pocket.  Don't get me wrong.  We could all used a little more money.  Yet people are hurting right now.  They are hurting for money and if they are going to go through a divorce they are hurting both financially and emotionally.  I know plenty of attorneys who have told me I'll fail at this.  Why?  Here I am
using the best of technology, cutting my rates to such an extent that you tell me it looks too good to be true.  Well, people can't have it both ways.  You can hire an experienced lawyer with tons of overhead expenses and pay $200, $300 or even $350 an hour and all you are doing is paying the attorneys' expenses and putting extra money in his or her pocket to support a fancier lifestyle with a BMW or a Mercedes, OR you can hire a new breed of attorney, one who is not only experienced, but who has taken technology to its very limits and give you a rate and payment blocks that the other traditional lawyers laugh about.

I've been through a divorce.  I know what the rates are.  I know the players and I'm an innovator.  I've done this for my present clients and my future clients and if the truth be told, I've been doing most of it for the past year but still paying all the expenses for a physical office with extra amenities so client's feel comfortable.  In the end, clients are more secure with me than they are going into the nice office I just shut down.  Why, because they pay for me and my experience.  They don't get nickel and dimed for every little thing.  They know from day one what to expect and I don't let them down.

I'm a Rhode Island attorney, yet I've had clients in and from Texas, Florida, Costa Rica, Virginia, Connecticut, New Hampshire, Indiana, Massachusetts, California, Maine, the Dominican Republic, Virginia and more.  They reach out to me because harnessing the power of technology works great for them.  So why not Rhode Islanders?  Why not save $12 on the gas it costs you to drive to a physical office in Cranston or elsewhere in the state when you don't have to.  My Virtual Office concept puts money back in your pocket, not mine.  I cut my rates.  I cut my expenses.  I cut my  lifestyle.  Why?  Because people deserve affordable and experienced divorce lawyers.

I'm giving back to the community not because I have to, but because I've been there and I want to.  Divorce is hard enough, you don't need to go broke on attorneys too.

Jared, I want you to take a day and think about whether you want a new attorney or not and whether you feel comfortable with me and what we've discussed today.  I'm not a sales person and I don't beg for anyone's business.  If you want to hire me, great!  I'm in your corner.  If you want to remain with your current attorney then I wish you my very best and I hope you get through this and end up with a great life ahead of you.

Jared thanked me, said "It still sounds too good to be true.", and said he would consider it.

My only question (though long and drawn out) is this? 

Does what I offer sound too good to be true because attorneys are expected to charge huge rates and ask for large retainers, OR do people really think its  worth paying their attorney an extra $100, $200 or even $250 per hour not for their legal expertise but rather for their attorney to pay for the upkeep on a fancy office, a top notch secretary, an office manager, a water cooler, their utilities, legal research services, a billing coordinator, a paralegal, an accountant, an IT Specialist to keep their computers running, and a person to maintain their landscaping outside the building?

Whether in a Rhode Island Divorce Case or any other family court proceeding it is perhaps one of the hardest things for a Rhode Island Divorce Attorney to do.  What is it?  It is explaining to your client that he or she lost his divorce or family law case because witnesses got up on the witness stand, swore an oath to tell the truth and then lied to the detriment of your client.

Like it or not, there are all too many people, including spouses, ex-spouses and family members who will wear to tell the truth by an oath that means nothing to them.  Then the witness  for whatever the underlying reason will testify to whatever promotes either his or her personal interest or the interest of the family member or friend they have appeared on behalf of.

As a Rhode Island Divorce Attorney it becomes it difficult task to be synical and advise a client that there is every possibility that the opposing party will call to the stand witnesses that may lie on the record of the court or creatively omit the truth regarding an event in such a fashion that critical information is omitted for the judge's consideration.  In most instances, the deceptions of witnesses are to the surprise of the client and even more so to the surprise of the attorney.

In the vast majority of cases, witness lies are such that cross-examination is often ineffective to factually disprove the false statements to the court because the false statements relate to a conversation containing an admission that never occurred or an event with no one present to confirm or deny the accuracy of the event or statement other than your client.  It then becomes a matter of the family court judge determining who is telling the truth and who isn't.  Usually there aren't frequent inconsistencies in the testimony so the end result may come down to whether your client's truthful testimony or the testimony of other witnesses who may be lying are better actors and more convincing to the judge.

When you are in a divorce or family law proceeding clients need to understand and accept that witnesses can and do lie to further their own interests and there may be little or nothing your family law attorney can do about it.

The Rhode Island Divorce process and procedure would be a bit easier if there were some road map to tell you what forms are required and why.  Then again, perhaps someone can explain to the public why the Congressional Record is devoted to publishing information about members of Congress proposing to do such things as saving money by cutting in half the number of staplers used by office assistants.

My point here is that whether it's Rhode Island or Congress, some things go without explanation and without any delineated reason. 

In the realm of Rhode Island Divorce lawyers and family law practitioners you will find that very few attorneys want to handle a case "piecemeal".  In other words, attorneys don't want to handle only the part of a case you don't understand, charge you for that piece of work and then let you do the rest.

An attorney's reasons for this in a Rhode Island divorce are fairly justifiable.  Attorneys have liability for what they do.  If they do only part of a case and it relates to another part that is handled by the client "pro se" then the attorney may open himself or herself up to a liability claim if the "pro se" individual makes a costly mistake in the divorce because he or she lacks the understanding of how the piece the attorney did relates to their whole case.   If the "pro se" individual blames the attorney rather than himself or herself for the consequences the attorney may have to defend a wrongful claim.  Even if a claim or lawsuit by the pro se individual has no merit, it can still cost the attorney additional malpractice premiums or force the attorney to address a lawsuit which could cost the attorney time and money. 

Even a disciplinary complaint can be time consuming and cause considerable anxiety for an attorney who must now spend his or her time defending himself or herself even if he or she has done nothing wrong except try to help someone who didn't have the money to retain the full services necessary to hire the attorney to take the divorce from beginning to end.

Yet the first step in a Rhode Island Divorce is to get the paperwork drafted and properly filed.  It's not as easy as many would like to think.

Here's a story that may help explain why I say that.

I was at the Providence County Family Court one day and a man came up to the counter and said to one of the female assistant clerks "I want to get divorced."  The clerk was pleasant, reached under the counter and placed a packet of documents in front of the man.  He didn't say anything and flipped through the documents rather quickly. The nice woman asked him if there was anything else she could help him with.  He said "Yeah, you forgot the instructions."  The woman politely told the man, "There aren't any instructions sir."  The man paused a moment.  "Okay", he said, "So I just fill all these out and give them back to you right."  The woman took a moment to think about the question before responding.  "Most of the time.", she answered.  The man looked at all the papers again.  "Sir", she said, "have you spoken with an attorney?" 

The man looked up at her and was obviously frustrated.  "I don't want an attorney.  I just want to get divorced.  I shouldn't have to get an attorney to get divorced."   The man's tone was harsh but the nice woman tried to brush it aside and she called out that she could help the next person in line.

"Wait a minute.  You're not done helping me yet.  Please show me which forms I'm supposed to fill out to get divorced."  This was the first time the man had said "please" throughout the whole conversation.  The woman answered, "I'm sorry sir but we're not allowed to do that."

"What?", the man bellowed out, now getting visibly angry.  "I want to talk to your supervisor."  The woman brought another gentleman up to the counter.

"Yes, may I help you sir?"  The man calmed down a bit.  "I want to file my own divorce and this woman won't help me."  The man behind the counter looked at the assistant clerk and then back at the man. 

The nice female assistant clerk said to her superior and said, "He wants the instructions that go with the divorce documents."   "Oh." The man said thoughtfully and then turned back to the man who wanted to file his own divorce.  "Sir, it's not that she doesn't want to help you . . it's that she can't help you."

The man who wanted to get divorced was clearly dumbfounded.  "I just want the instructions.  How hard can that be?"  The supervising clerk behind the counter kept his cool. 

What he told the man was excellent and professional and I've written it here as best I can remember it.

"Sir, the instructions you are looking for are found in Rhode Island's laws and Rules of Domestic Relations Procedure.  Those things are matters for attorneys to know and to help you with.  If you don't want an attorney and you want to do this yourself then you have to know where to look in the law books or in the domestic relations rules in order to know what documents you need to file for your particular situation. These laws and rules will also tell you what other documents you may need to provide in order to file your divorce properly.  This nice woman who has been trying to help you is an assistant clerk.  She is here to help you but she is limited to giving you, to the best of her ability, the general forms that we provide for the most common divorces. 

You have been given a generic divorce package.  Some divorces require different documents.  However, this woman is not an attorney and is not licensed to give out legal advice.  By law, she is not allowed to tell you which forms you need, or how to fill them out.  As it stands we already are doing a great service to the public by providing a generic divorce packet free of charge to people who say they want to get divorced.  From there, you need to know what you are doing."

Now the man was angry.  "You people just can't do your damn jobs.  That doesn't make any sense.  State workers aren't worth a darn.  You just want to help the attorneys make more money."  The man was shouting at this point.

At this point I couldn't keep my mouth shut anymore.

[Exerpt]  To read the full article go to http://www.attorneypearsall.com/2008/06/the-rhode-islan.html

Question:

Can an attorney demand I appear (via voice message only) in a family court proceeding without a subpoena?

Answer:

Unfortunately you don't state the circumstances or nature of the proceeding. I will provide you information only regarding family court and Rhode Island Domestic Relations law.

No. Under Rhode Island Domestic Relations law you must be served with the subpoena and fees must be tendered to you by law for one day's attendance and mileage at a minimum. A voice message by itself from an attorney for your appearance in any Rhode Island Family Court does not constitute valid authority requiring you to appear.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
70 Dogwood Drive, Suite 304
West Warwick, RI  02893
Phone:  (401) 632-6976

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

EXCITING NEWS:

        Attorney Pearsall's practice is converting to 100% Virtual / Digital effective June 9, 2008

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.