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Rhode Island Divorce and the Family Computer!

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.

Authored By:

  Christopher A. Pearsall, Esquire
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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