Courtroom Skills Feed

Divorce and Family Court Decorum in Rhode Island - Simple Tips for Represented Litigants

Ri_divorce_judgeBy:  Christopher A. Pearsall, RI Divorce and Family Court Lawyer*
a.k.a.  The Rhode Island Divorce Coach ℠

I realized 10 years ago that not everyone could afford a lawyer to represent them in court. Sure, there were some organizations that provided volunteer lawyers or lawyers who would take on a Pro Bono case in Rhode Island.  The trouble was that they were quickly saturated with people who wanted a free lawyer for their case.  Yet there wasn't a service that I could find that offered help to individuals so they could represent themselves properly in their own divorces.  So in 2006 I became the Rhode Island Divorce Coach to do just that less than the cost of typical representation.

Recently I was reminded of a few lessons I give people in courtroom decorum.  As lawyers I suppose we treat these things as commonplace or perhaps even common sense.  They aren't common sense to everyone though.  Sometimes, they aren't followed by long time practicing attorneys. 

I've always thought stories are the best teachers so let me give you an example.  Keep in mind that  " . . . " means that someone was trying to continue talking.

The Divorce of Todd McFadden vs. Sarah Jacobsen

Todd McFadden and his wife Sarah Jacobsen were getting divorced.  Todd was the filing party ("Plaintiff").  Sarah was the party served with the initial Rhode Island divorce complaint ("Defendant").  Todd's lawyer filed a Motion for Temporary Orders.  Sarah's lawyer objected to that motion..  Here is how the dialogue went in the courtroom.

JUDGE:  So we're here on Plaintiff's Motion for Temporary Orders, correct counsel?

Todd's Lawyer:  Yes, your Honor.

JUDGE:  Okay counsel, I'll hear from you first.  Then I'll hear from Defendant's counsel.

Todd's Lawyer:  Your honor we are moving for Orders allowing only the Plaintiff to be the one to bring the two minor children to their soccer practices and games.

JUDGE:  Reasoning counsel?

Todd's Lawyer:  The Defendant mother already has a boyfriend only 4 weeks into this divorce.  She has been exposing these minor children to this boyfriend.  She and the boyfriend pick up and drop off the children to their soccer practices and games.  It's our position and hopefully the court's that to prevent confusion or irreparable damage to the children at this delicate time in this family's life that it's in the best interests of the children that the Plaintiff be the one who drops off and/or picks up the children.

JUDGE:  Okay, defendant's counsel may I hear your objection.

Sarah's Lawyer:  Thank you.  My client's objection is that she has always brought the children to their soccer practices and games and to change their routine would be detrimental to the children's routine during the divorce.

JUDGE:  But counsel I'm sure you understand that exposing the minor children to her boyfriend before this case is finished is poor judgment and could damage the children and . . .

Sarah:  He's not my boyfriend. He . . .

Todd:  Judge, he is too her boyfriend!  C'mon Sarah, I've had an investigator following you since before I filed for divorce.

JUDGE:  Counsel, kindly get your client's under control.  They should be aware how we do things in a court of law.

Both Lawyers:  Yes, Judge.

[Each lawyer whispers to their client.]

Judge:  So, we have mom who's always been bringing the children to soccer practices and games routinely but now she's bringing them with an alleged boyfriend who supposedly the Plaintiff can verify with a private detective who has been following them. So I'd . . .

Sarah's Lawyer:  Judge we don't think he's been having her followed at all and . . .

Judge: [Facial Expression at Sarah's lawyer) As I was saying, I'm be inclined to want to keep mom bringing the children for consistency since she's always done it [Todd whispers to his lawyer] yet because of this boyfriend issue . . .

Todd:  What?  But she hasn't....

Todd's Lawyer:  [Putting his hand on Todd's shoulder to silence him.] But judge mom hasn't been routinely . . .

Judge:  [To Todd's Lawyer]: Counsel, was I speaking?  I believe I was and ....

Todd's Lawyer:  Yes Judge, but...

Judge:  That's enough.  I've heard you both.  Plaintiff's Motion is denied.  I'm ordering that the Defendant mother shall continue to bring the minor children to and from their soccer practices and games but she is prohibited from bringing any unrelated person of the opposite sex with her on pickups and drop offs.

Todd's Lawyer:  But . . .

Judge:  Yes.

Todd's Lawyer:  Judge please note my exception to your decision for the record.

Judge:  So noted.

You would be amazed how big some things that seem so small can be so big.  Hopefully you were able to identify the three (3) big lessons in courtroom etiquette that can be learned from this simple little exchange.  After you look at them, see if you can figure out which things made the biggest difference.

1.  Let Counsel Speak for You:  If you've hired a lawyer, then you've hired him or her for a reason.  Lawyers are hired for their expertise in a particular area of law including the manner in which the court should be addressed.  In this case it was divorce and the family court system.  So let the lawyer do what you hired him or her to do.  When you have a lawyer a client who jumps in and speaks directly to the judge without being asked to do so directly by the judge or their lawyer is considered being rude and shows a lack of respect for the court. Whatever your good intentions may be, keep your mouth shut until your lawyer or the judge ask you to address the court, otherwise you are most likely going to hurt your case.  If you look back in the dialogue above, you will see that both Todd and Sarah addressed the judge directly and the judge actually scolded their attorneys and told them to get their client's under control.  They both hurt their cases by not having their attorneys address what needed to be said instead of speaking out of turn without the court's permission.

2.  Don't Speak to the Other Party: Unless the court has requested that there be direct discussion between the two parties while in a court hearing, don't do it!  , then do not directly talk to the other party.  If you were going to directly talk to the other party in the first instance you should not be in court at all and you should have been able to resolve the matter without even being in court.  Once again, this is considered rude and disrespectful to the court, especially when you have hired a lawyer who is responsible for presenting your case to the court.  In this case look at the testimony.  Todd directly addressed Sarah and while the tone isn't evident the wording leads us to believe that he was using a condescending tone.  Todd hurt his case with the judge here and started sending his own motion on a downward spiral.

3.  Don't Interrupt the Judge: When the judge is talking, even if what the judge is saying seems wrong, you do not interrupt the judge.  That is not only rude but it is one of the biggest offenses to a judge and with good reason.  You are before the court asking for something.  If the judge is speaking and you interrupt, then you have now offended the very person that you are asking to give you some relief.  If you were going to ask someone for a short term loan and before you gave them the loan you did something that was a slap in the face to the person, you just decreased the chances of getting that loan by more than 50%.  The same is true for court.  It is a place of respect.  You disrespect the person running your hearing in that court and it's just like a slap in the fact.  Here, after Sarah interrupted the judge, Todd continued the interruption.  Why is that significant?  Because Todd should have had enough time and common sense to mentally process that Sarah had done something wrong that he should not do, namely interrupt the judge.  Yet he not only continued the interruption of the judge, making it longer and wasting the court's time but he also interrupted Sarah and spoke directly to her, neither of which he should have done.  Todd compounded the problem.  If Todd had looked at the judge he might well have caught a cue from the judge's facial expressions or mannerisms that he/she was not happy about it.

Which way to do you think the judge would have ruled if Todd had interrupted the judge and spoke directly to Sarah?  If he had asked his attorney to address the issue and the attorney had done so correctly, what to you thing the result would have been then?

Can you see that the judge seemed to be going in Todd's direction until he and the lawyer opened their mouths in a disrespectful manner to the court?

Do you think Todd's lawyer could have salvaged this motion and won it?

When you are represented by a lawyer in a Rhode Island divorce case or otherwise, take your cues from the lawyer.  It is all too easy to let your emotions get the better of you and make grievous mistakes in etiquette that end up losing you a motion or your entire case.

In my professional opinion, this motion was not lost in this case based on the law, facts or evidence. Todd's motion was lost in this court hearing solely due to disrespect of the court and the presiding judge.

 *Note:  Any resemblance to any real persons or situations currently before the court is merely coincidental and/or accidental.



RI Family Court Judges - Is Your Eye on the Ball in each Rhode Island Case?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Within the past few months I've had several calls from people who had the same problem and I was able to identify it simply by asking a few questions.  Unfortunately it's something that I've seen happen dozens of times over the years.  Though I wouldn't call it an epidemic I would certainly say it's something our newer judges could do well to focus on.

So what is the problem?  In a nutshell it is the failure to keep their eye on the ball.  What does that really mean?  

Judges have a coinsiderable amount of latitute and discretion in the Rhode Island Family Court System.  They can continue motions over and over.  They can defer to family court investigators.  They can rely on a Guardian Ad Litem's recommendations without question.  They can shuffle a matter off to mediation even if it is a matter in which mediation makes no sense.  It's there.  Discretion is part of our family court system and we count upon our judiciary to use it wisely.

Yet ultimately, it isn't used all that wisely when a judge doesn't keep his or her eye on the ball.  For instance, I had one case where my client filed one motion.  Remember that number now.... just one motion!  The motion had such substantial merit that the opposing party and the party's attorney could do nothing other than to try to prevent it from being heard.  In the case, the judge was not "on the ball" as I call it.  Though I brought this to the court's attention at each and every hearing, it was ignored and the judge diverted on tangents as the opposing party filed countless and meritless motions that were titled as "Emergency Motions."  In the end, the judge fell for it every time.  At one point after 2 1/2 years of bogus motions from the opposing counsel I literally lost my temper and said to the Judge, "Judge, with all due respect you are doing my client and these children and injustice.  We have had one motion pending for  2 1/2 years while this court has allowed itself to be pulled off on tangents by the 118 motions filed by the opposing counsel in an attempt to bury the one meritorious motion we filed to start all of this."

The truth be told, my client and I had been patient over and over as bogus motions continued to fly in and cost my client money and time.  In the end I represented the client for the last 8 months for free because I was so disgusted at the way the matter was being handled by the court.  All that was needed was for the judge to take a clear look at the file and see what was going on.  It was as plain as the nose on your face that the opposing party was trying to bury his manipulation of the children and his failure to pay child support.  

No matter what motions are filed I have learned one thing from countless judge in family court in Rhode Island.  The judge's discretion controls everything!  If the judge sees that the underlying problem is that a child needs counseling then the judge will act and go right to the route of the problem.  When a judge does that, I applaud that judge.  He or she does not end up being controlled by motions which may or may not have validity or even valid foundation (though they are supposed to if counsel is involved).

I think the greatest thing I have learned is that a good RI Family Court judge will see the crux of the issue and then focus on the ball to resolve it.  Judge's who loose sight of the real issue usually do so because they listen to a lawyer who is spouting or whining or arguing about something to throw the judge off on a tangent so he or she will not see the REAL ISSUE and keep their eye on the ball.

A constant flurry of motions is not only a sign of a lawyer that may be trying to make more money but also a lawyer that may be trying to bury a key fact about his or her client  that he or she doesn't want the judge to see.  It is also a good way for some lawyers without scruples to abuse the system by requiring the opposing party's attorney to have to spend more time and money to respond so the responding party will be drained of resources as quickly as possible so he or she can't afford counsel to defend himself or herself.

These are all things that a judge can see from the file.  The motions tell the story.  The orders tell the story.  Sometimes a brief review of the file will help them keep their eye on the ball.

A good judge can keep his or her eye on the ball in most cases and keep the case on track.  No matter how many cases may be in the system, a case that is prolonged for no reason or is decided unfairly or inequitably because justice was not done because the judge was distracted from the main point (the ball) is merely a case that might be closed by frustration or one party becoming broke or defenseless

In the end, it is not justice!  Once a judge fails to keep track of the ball on a case.... justice falls between the cracks.  It is my sincere hope that our judges take a few minutes in each case to look, to listen, and to find the ball once again!

Rhode Island Divorce Tip - Listen Twice as Much as You Talk!

In my early years as a lawyer I tried to listen more.  Then I found that an effective tactic of many lawyers was to talk first and convince the judge to move in your direction.

I followed that novel little tactic for a while until I started listening to myself.  What I found was that I was being rude, unprofessional and breaching what I considered to be traditional rules of common courtesy.

Today many divorce lawyers still follow this tactic.  They try to start talking first before the other lawyer or the opposing party to try to steer the judge in the direction of their client's position so that the judge actually puts the opposing counsel on the defensive side of the coin for his or her client without really giving the lawyer the same chance to explain for his or her client.

While their is a decided advantage that some attorneys gain with some judges in divorces by "talking first" and try to convince the judge of their position, it doesn't work with all judges.  Most judges listen more these days.  Some (and I do mean some) of the older and more "seasoned" Rhode Island Family Court judges may fall into this trap rather than allowing the other counsel to speak without forming a judgment, several of them do not and of those RI Family Court Jurists I am most proud to be members of our Judiciary with.  I believe they know who they are.

Yet over time I've learned a tip from Dale Carnegie's traditional teachings.  It is simply this.  You have one mouth and two ears . . . Listen in proportion! 

If the truth be known, you learn more by listening than by talking and careful and active listening can lead to the other party making your point or argument for you.

Dale Carnegie or his predecessors would use salesmen as the example because in one way or another we are all selling something.  Even when we are arguing for our point of view at court we are trying to get the judge to adopt or "buy" the point of view we are "selling" as opposed to the one the opposing party is "selling."  The judge is most likely to act on the most convincing and logical presentation if he or she has not allowed himself or herself to be biased by the first argument presented.

In sales, a salesperson is taught that buyers have various objections will give you why they cannot make a purchase right now.  Typically as a psychological mechanism the first reasons buyers give a seller that they can't buy what the seller is selling are not the real reason. A good salesperson knows the "real reason" is usually 3 or 4 reasons deeper.  The good salesperson know that the "real reason" is what they need to find and overcome before the buyer will really want to make the purchase.  

Why do I relate this to law?  Because a legal position is no different than any other product but you are merely selling a position of your client.  So how does a really good salesperson find that "real reason" and want the buyer to buy the product or accept the position?  A good salesperson just like a good lawyer will know that you do that by careful and active listening.  The person who "might" buy your product or accept your position IF you listen actively because they literally give you the reason when they are talking to you.  You just need to figure out what it is and then use it to close the deal or get the judge to have the best chance of accepting your position.

Listening will get you more than two times farther than talking.  When people talk, they give information and they argue positions.  What they also do is show the holes in their arguments or they point the way to what it is that will change their point of view.

Convincing someone is just like making a sale.  This is where many lawyers may fail.  I dare say we all fail at this from time to time because sometimes a Judge or Magistrate will have such set ideas that they will always believe that a child should be with it's mother, even if the child has been living with the father and thriving for the past 5 years.  Very few lawyers can beat that kind of thinking that is so engrained in someone's mind that it will never change.

The lesson to be learned from this tip is simply this... Listen!  And do you know what?  90% or more will dismiss and ignore this message because it is too simple and they think they already listen.  

So let me say it again for lawyers in divorce court, superior court, district court and people who represent, skillful listening will give you the answers you need to win a case or get your position accepted by a judge or magistrate.  It is a skill that can take years to master.  

Do not simply listen, but hear what the person is saying and process it.  How did the person say it?  What was the person's tone?  What was most emphasized by the person?  Why are they saying it, namely what are they trying to accomplish?  What beliefs are they conveying to you by using the words they use? 

Listening will get you or any attorney representing you much further than simply speaking without understanding the other party's point of view and gauging the judge or magistrate's response to it.

As a Rhode Island lawyer focusing in divorce my goal continues to be to listen and master the art of listening at high speed so that I can most effectively advocate for my clients.  A skilled lawyer hones his or her skills and then has them at his or her disposal for every aspect of the representation.  The lawyer who merely follows the legal process of the divorce misses the true calling of an effective advocate.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

I'm an RI Divorce and Family Law Lawyer practicing in Providence County, Kent County, Washington County and Newport County.

I give 100% personal service and I am here to help you if you need me.

Call me for your reduced-cost advice session at (401) 632-6976.