Divorce Attorneys Using Social Media to Find Evidence

It's been known for a while that current and potential future employers look at people's profiles on social networking sites such as Facebook.

And it's also been known that people are using social networking sites to announce the status of their relationship — or lack of one.

Now the two uses are getting together, with divorce attorneys mining social networking sites for evidence supporting their clients.

"Lawyers, however, love these sites, which can be evidentiary gold mines," said a recent article in Time. "Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn." One attorney quoted in the article said such research is "routine."

In addition, exes are posting information about their formers — such as an estranged wife emailing "friends" of the spouse the additional information that he was married with children, which he had neglected to include in his Facebook profile.

Such messages on a social-networking site can even be part of a harassment campaign that led to the court's issuing a civil order of protection, one attorney said.

SOURCE: DaniWeb

Law evolving as divorces drag in digital evidence

Dreamstime_2947135 I was interviewed on this topic by Atlanta Journal and Constitution reporter Bill Torpy last week and the article appeared in the paper on Sunday, February 24, 2008, in the Living section and online today. It is reprinted below:

Marietta divorce attorney Stephen Worrall increasingly sees clients come to his office and excitedly tell him: "You won’t believe what I found on my wife’s e-mail."

The information may be evidentiary dynamite — juicy, sordid and damning. But the veteran attorney immediately will halt the budding sleuth mid-sentence. "We stop them right there and determine how he came about it," he said.

The client may have committed a crime, and Worrall doesn’t want to be a party to it.

Evidence like e-mails, cellphone records, Web site records and even GPS information is increasingly making its way into divorce battles, plotting almost indefensible maps of a cheating spouse’s footprints.

Electronic evidence has changed the face of divorce. A poll conducted by the American Academy of Matrimonial Lawyers released this month found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence.

John Mayoue, an Atlanta divorce attorney and author of "Southern Divorce" and "Protecting Your Assets From a Georgia Divorce," said the increase in the use of electronic evidence "has been exponential. It’s raging. It’s also the most raging issue" in divorce law.

"The day of the private eye peering into a window is mostly gone," he said. "This electronic information is so much better. It’s the most compelling evidence in terms of financial wrongdoing, in terms of affairs — someone in their own words saying things they’d never say in court. ‘Hey, I’m worth $1 million. Hey, I’m having an affair.’ People are more likely to be caught than ever before."

The evidence can be devastating. In a recent case, the wife, who was thought to be cheating, was asked to turn over a cellphone. "She forgot she had photos [of her and her lover] saved," Mayoue said. "They were photos that said they were more than just friends."

But, Mayoue adds, "the vexing issue is that of privacy. How was that evidence retrieved?"

A spouse spurned will stop at virtually nothing to prove a partner has been up to no good. They place keystroke spyware to see what has been typed on a computer. They sneak off with BlackBerries or laptops to get a forensic expert to retrieve information that has been deleted. They steal passwords. They even slap global positioning system, or GPS, devices on vehicles to see where their spouses have gone.

Worrall had one case in which both parties wanted examinations of each other’s computer. "Both had Match.com entries on their computers," he said, referring to the online dating service.

Judges are frequently asked by parties in a divorce for court orders allowing them to examine a spouse’s computer or retrieve cellphone records. They are also often asked to rule on the admissibility of evidence that has already been retrieved.

Fulton County Superior Court Judge Cynthia Wright, chief of the Family Court Division, said such evidence can be powerful.

"Cellphone records can show they were in Alabama when they said they were in Marietta," she said. "As our technology expands, the ability to track people expands."

Legal bounds still murky

The law has been trying to keep up with technology, said Wright, who sees e-mail evidence in almost all contested divorces. "It’s an area of law that attorneys are struggling with. It’s a difficult area of law. It’s evolving just as technology is evolving."

Georgia law has provisions prohibiting computer theft, trespass and invasion of privacy. But each case has gray areas. Was it a personal laptop? (Most likely not OK to use as evidence.) Or was it a family communal computer? (Probably OK as evidence.) Did the spouse ever share the password? (If so, probably usable.)

"Generally, if the devices are not normally accessible to the person who has ‘broken’ into them, i.e. password protected, or are not owned by the person who is seeking to use the data, I have ruled out such evidence," Gwinnett County Superior Court Judge Billy Ray said in an e-mail. "If it is not your device, or if you are not a person who has access to it on a normal basis, my rulings have been that you can’t use it."

"I have seen GPS tracking devices used," Ray said. "Normally, it is when one spouse also has ownership of the car. It is hard to say they can’t do it if it is their car, too. Kind of like breaking down your own front door; if it is your door, you can do with it as you please."

Mayoue said the appeals courts haven’t dealt with a lot of the questions yet.

"The courts are slow to deal with these issues," he said. "People haven’t pushed these cases [through the legal system]. They’ve tended to settle."

Damning evidence

Electronic evidence helps settle cases quicker because it is so graphic and damning, said George Stern, an Atlanta lawyer practicing divorce law for 30 years and former president of the American Academy of Matrimonial Lawyers.

Pornography on the computer — thought to be deleted — is a killer in divorce cases, he said, as are e-mails and cellphone calls to lovers.

"You’d be shocked how often a person will call their girlfriend or boyfriend," he said. "I think husbands are much more careless than wives."

Why would people sneaking around not cover their tracks? Stern thinks the use of e-mail and cellphones is so routine that people just don’t think about it.

"People get lazy," Stern said. "And, for the lack of a better word, stupid."

Wright said the omnipresence of technology might be an impetus for people to behave.

"The world has gotten smaller with the World Wide Web and computers," she said. Her advice? "Live your life like you’re living in a small town."

SOURCE: AJC.com in an article by Bill Torpy

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5 things to consider before you talk to the judge

Mary Beth Long, a Richmond, Virginia, family law attorney, publishes VA Family Law Blog and she offers the following helpful tips to witnesses testifying in family law cases:

you are headed to court, you should get prepared. Know where the court is located, where to park and what time to be there. Then arrive early. The best preparation is a meeting with your lawyer. In case you need a refresher on some of what that person probably told you, here are five basic suggestions:

(1) When you testify in court, never guess. Do not speculate. You would be amazed by how often I have seen people get themselves in trouble by trying to be accommodating and thus guessing at answers in court. Turn down those people-pleaser instincts. If you do not know the answer, say that and then button your lip.

(2) When in court, speak only when spoken to and when you are spoken to, answer only the question asked.  Resist the urge to tell the back story, the whole story or what happened right before that thing you were asked about. Judges lose patience and get bored, too. Make what you say count, do not waste the judge’s time. Also, rambling on will sometimes bring up facts that end up helping the other side. DOH!

(3) Never, ever curse or show agitation with gestures. No eye rolling or horrified looks. I used to think I did not have to tell people to watch their language and such but court can be VERY emotional. I have seen smart, educated people lose their cool and then lose the judge’s respect. Like the stockbroker who pounded the table and hissed a very nasty word that starts with a “c” as a description for a witness. The judge actually dropped his pen. And then we lost. Do not let that happen to you.

(4) Unless your lawyer specifically instructs otherwise, dress like you are going to your grandfather’s funeral and your conservative grandmother will be there, watching and judging you. Easy on the jewelry for both men and women. Consider covering tattoos, piercings, etc. Do not look rich or flashy. Look respectful and serious. Like a funeral, court ain’t fun. Let the judge know you are taking it seriously with your attire.

(5) Get with your lawyer ahead of court and prepare! If your counsel does not set an appointment for you to come into their office and prepare in the weeks before trial, then call them! Prep is everything. Get your lawyer to explain what the courtroom layout will look like, where you will sit and who will be there. Ask what kinds of questions you should expect from your lawyer and from the other side. And remember that you are the chief information provider to your attorney. If there is anything you have not told them, tell them BEFORE court.

And good luck.

SOURCE: VA Family Law Blog

Nation’s Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence

E-mails are Primary Source with Wives Most Likely to Use Them

A resounding 88% of the nation’s top divorce attorneys say they have seen an increase in the number of cases using electronic data as evidence during the past five years, according to a recent survey of the American Academy of Matrimonial Lawyers (AAML). E-mail takes the lead as the most commonly used form of technological evidence, with 82% citing it as the main source. Interestingly, the survey also reveals that wives are more likely to make use of electronic evidence than husbands.

"As in all other areas of our lives, technology is having a big impact on the way that divorces are now conducted," said James Hennenhoefer, president of the AAML. "Many people still don’t realize how much evidence can be gleaned from personal electronics ranging from computers to cell phones and GPS devices. In the Internet age, there is often a very clear trail that has been left behind and can be easily traced."

In all, 82% of the AAML members who responded said that e-mail has become the most common form of electronic evidence during the past five years. Text/instant messaging and Internet browsing history tie for second with 7% each, while 1% of the respondents cite data taken from GPS systems.

A gender difference also emerged between which spouse uses electronic evidence more often in divorce cases. In all, 27% of the members said that wives use electronic data more often during a divorce case while only 5% said husbands did.

SOURCE: PRNewswire.com

10 Tips for Witnesses: Don’t Give These Answers!

After recently spending several days in court on various matters involving testimony, I feel like I should share some fairly common statements that should no longer be used in court. I understand that some of these are the way people may talk in a conversation, but they were not uttered in conversations. They were spoken in a formal court hearing which operates under different rules than regular social discourse. The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can’t stop court to go get them.

2. "Everybody knows that ______ is true." That’s not acceptable proof. ‘Everybody’ needs to testify.

3. "I got it off the Internet, so I know it’s right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc. if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer’s not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They’re all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn’t really do what they said I did." Sorry, but you can’t argue that for a guilty plea. If you were convicted after a trial, you could say you didn’t do it and that the jury was wrong, but that still won’t get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention.99.9% of the time, the answer is "Yes".I want to find out what you’re scared of.

Bottom line: You lose credibilty and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them.

SOURCE FOR POST: Divorce and Family Law in Tarrant County, Texas

Cell Phone Voice Messages and Custody Disputes

Cellphone Should you keep a record of those angry cell phone voice messages from your ex?  The now infamous Alec Baldwin voicemail message to his daughter (in which he berates his daughter) illustrates how advances in technology can help introduce evidence into child custody battles.  In some situations, this evidence can point out character flaws that aren’t always obvious to the courts. The following information about copying answering machine recordings and cell phone voice mail messages can come in handy if you are gathering evidence for a custody case.

Voicemail Messages May Influence Court Custody Decisions.
Will You Be Ready?

If you’ve ever considered recording your phone conversations, you know that it is illegal [in many states; not Georgia; see Georgia’s Laws on Taping Phone Calls and In-Person Conversations] unless you get the other person’s permission. Ironically, if you are trying to capture angry, hysterical, threatening or scary conversations from someone, this would defeat the purpose, because they most likely would never agree to be recorded! And even if you did make a recording, because it is illegal, it would not be admissible in court!

But, if this type of person leaves a message on your answering machine or on your voicemail, it is understood that they are being recorded. Therefore, it is more likely that this would be allowed in a court situation to support your divorce or custody case. Each situation and jurisdiction is different regarding these matters, so we cannot say that in every case, the voicemails would be allowed in court, but we can say that it is more likely than secretly recording a phone conversation.

If you have cell phone voice messages that you think would help you in court, you probably have been saving them every few days. If you didn’t, you know that your service will erase them permanently after 30 days. The problem is that eventually, you have saved so many messages that there is no room for more messages. This frustrates everyone and makes the angry caller suspicious.

So, that leaves us with the question of "how do I get these voicemail messages onto a CD?"

There are four options:

OPTION 1 – VoIP Service + Phone Recording Software. This is where you have your computer call your voicemail and you record the message directly into your computer.

OPTION 2 – Cable Connection + Phone Recording Software. This is where you hook up cables between your phone and your computer and you record the message directly into your computer.

OPTION 3 – Receive Voicemail as Email Attachment. This is where you sign up for a third party service that has a feature that can literally grab your voicemail and send it to you as an mp3 in an email attachment.

OPTION 4 – Voicemail Transfer Service. This is where you hire someone to do it for you.


SOURCE FOR POST: Woman’s Divorce Blog in an article written by Howard Richman.

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Georgia’s Laws on Taping Phone Calls and In-Person Conversations

High-Tech Evidence: A Lawyer’s Friend or Foe?

BE CAREFUL WHAT YOU SAY: EMAILS, TEXT MESSAGES, VOICEMAILS AND MORE…

Illegal Electronic Surveillance in Divorce Cases

Tell-All PCs and Phones Transforming Divorce

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