A. The Court
The judge, often referred to as "the Court", is the decision-maker. Show respect for the office of the judge even if you disagree with the particular judge. Be prepared for the possibility that the judge may not share your view or your lawyer’s opinion of what constitutes justice in your case. Some judges are wiser than others, and, being human, they all have good days and bad days.
Never contact a judge about your case. Judges are not allowed to communicate with either party without both parties being present or notified. Any attempt to influence the judge in this way will backfire.
Courtesy to the court staff is also essential.
1. Your side
Early in the preparation of your case, you and your lawyer should have a conversation about what experts may be needed, which ones are available and the merits of the different choices. Once you and your lawyer agree to hire an expert, you should give that person your full cooperation. Unless there is a different arrangement, you are financially responsible for the fees and expenses of your expert witnesses.
If you are sent experts’ reports for your review and comment, discuss them with your lawyer, not with the expert. Conversations you have with your lawyer are privileged and may not be disclosed to third persons. (See Chapter X, Confidentiality.) However all conversations you have with the expert witness and any communications in writing by you to the expert witness may be obtained through discovery by the other side and used in court. You do not have the right to dictate to the expert what the expert’s opinion will be.
2. The other side
Expert witnesses retained by the other side should be treated courteously, even if you disagree with them. Do not talk to any such expert witness without speaking with your lawyer first. You should not volunteer information, nor should you attempt to persuade the expert that you are right. When dealing with experts retained by your spouse, assume that everything you say will appear in the notes of that expert and be presented in court.
3. Appointed experts
Sometimes the court appoints a single expert to investigate an issue and make a report to the court. At other times both sides agree to hire the same expert. Deal with an appointed or agreed expert the same way you would deal with the other side’s expert.
C. Your Children
Your children are the most important other family members with whom you will have to deal in the course of your divorce. Don’t talk about the details of the case with them and don’t use them to carry messages to your spouse. For additional thoughts about children, see Chapter IV (Children).
Friends, neighbors, teachers, and business colleagues usually prefer not to get involved in your divorce. Acting as a witness, either by deposition or in court, is an imposition on their time, their energy, and often their livelihood. Be considerate of them and don’t try to pressure them to color their testimony. The most effective witnesses appear not to be biased for either side.
E. Psychotherapists and Members of the Clergy
Usually what you tell these people can’t be used against you in court. But rules vary from state to state so talk to your lawyer. See Chapter X (Confidentiality).
Although friends and relatives can be a valuable source of moral support during your divorce, there are risks in discussing your case with anyone other than those professionals whose job it is to help you through it. People with a little knowledge may believe they can give you better advice than your lawyer who has years of training and experience and knows your case. The law that applied to in your friend’s case may have nothing to do with your case or may have changed since your friend’s divorce. Furthermore, even a trusted confidant could become a witness against you.
G. Some Questions and Answers about Clients’ Relationships to third Parties.
1. Why can’t I use my regular accountant as my expert? Some specialists are very good in their field, but do not make good witnesses. Moreover, they are handicapped by lack of knowledge of divorce law and procedure. You might have great confidence in the accountant who has prepared your tax returns for many years. However, if those were joint returns, that person may have a conflict of interest which could be an obstacle to taking your side in your divorce. Also, your accountant may appear biased because of the past relationship and need for your future business.
2. My friend who got divorced got x result. Will I? Friends who have been divorced can raise unrealistic expectations. Every case is different, and what happened to your friend is almost always irrelevant to your case.