Deposition Tip: Take a Lawyer

I just finished taking a deposition in a case over in Chapel Hill in one of my Wake County cases.  It reminded me of something I learned early on in my practice: a deposition: if you have to give your deposition, take a lawyer along.

Today I was sitting across from an unrepresented witness.  The issue was the marital fault of my client’s spouse with this particular person over  a period of time.   I went in with a list of questions.  The witness was sworn in and I started going through my questions.

The Subpoena in Your North Carolina Family Law Case

Child CustodyI frequently get asked about subpoenas in North Carolina family law cases. What is a subpoena? What does a subpoena do? What do I do if I get one? How do we get one served?   Let’s spend some time answering these questions.

What is a subpoena?

Under North Carolina law, Rule 45 of the Rules of Civil Procedure governs subpoenas and the process around them.  A subpoena is a command to show up in court and/or produce documents at a certain place and time.

Importantly, a subpoena may be issues by an attorney, clerk or judge.  A pro se party may not sign a subpoena and must get a court official to issue it for the self-represented party.

What does a subpoena do?

A subpoena accomplishes the goal of making sure a witness is in court with documents related to the case.  For example, if you want a witness to show up in Wake County District Court to testify in your child custody case, a subpoena is served on that witness in advance to be in court.  It also is a way of getting documents prior to court from non-parties to the litigation.  For example, a bank may be served a subpoena to compel the production of certain bank account records prior to an alimony hearing.

A subpoena cannot be used to compel a party to provide documents prior to a hearing.  To accomplish this one must use a Rule 34 request for production of documents.

What do I do if I get served with a subpoena?

You should immediately contact your lawyer.   If an objection is not made promptly, the right to object to the scope and timing of the subpoena is going to be lost.   You should gather any documents requested and show up at the designated place and time as set forth in the subpoena.

How is a subpoena served?

Typically service is performed by certified mail, sheriff’s deputy, or by an adult who is not a party to the case (for example a private process server or paralegal).    There are limitations on subpoenas, for example, it is typically not appropriate to serve an out-of-North Carolina person to appear in court in North Carolina.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

 

Winning Your Case at Trial or Mediation

PlanWhether you are litigating or trying to settle issues of child custody, equitable distribution, alimony, or child support, putting your best case on is important.  The issues at stake are about your children and financial security and you do not want to have any regrets.

Below are suggestions to help you do as well as possible whether you are litigating your case or trying to settle it.

  1. Make Sure Your Attorney Knows All the Facts:  Never leave out critical facts because you believe they are embarrassing to tell your attorney.  Remember, the other side may bring these up and you do not want your lawyer to be surprised or unprepared because you did not warn him in advance.   Tell your lawyer everything.
  2. Take Care of Your Responsibilities While the Case is Pending: Courts do not react well to destructive actions aimed at hurting your spouse. Withholding support, allowing the utilities to be cut off, not paying the mortgage… these are all destructive acts that courts do not like.
  3. Control Your Online Presence: Do not post negative, vicious, threatening, or other comments about your spouse, your divorce, or the process.   Do not post anything that you would not be okay with the judge reading.  be very careful in posting photographs of your children online.   In the past I have suggested not to post children’s photos at all, but if you carefully monitor the content and your privacy settings, judges are not inherently against the idea since many people use this as a way to share photos with family.    You should assume that anything you post online may be brought up in court.   The safest approach is simply to stop using social media until your case is settled or a judge makes a decision.
  4. Timely Comply With Court Rules and Discovery Requests:  Wake County has extensive local rules that require documents and information to be turned over.  Also, nearly every case will have discovery requests from both side where documents, photographs, diaries, calendar, and journals are requested.  You are required to comply with the local rules in your jurisdiction and legitimate discovery requests..   Be careful, because if you do not timely provide the documents and information requested you will likely be sanctioned by the court. Sanctions can consist of attorney fee awards, contempt of court, and/or the court preventing you from putting on evidence.
  5. Email, Texts, and Phone Records:  In most cases where there are allegations of wrongdoing there will  be requests for email, text messages and phone records. The attorney may also request to make a duplicate image of your computer hard drive to obtain all of the files and data on it. When faced with this prospect many people attempt to get rid of the contents of their computer. Destruction of potential evidence is a bad idea.
  6. Depositions:  In many cases each party’s deposition will be taken.   A deposition is a proceeding that takes place in one of the attorney’s offices where your sworn testimony is taken.   Depositions are important.  Your deposition may be used at trial to raise questions of your credibility if you testify differently at trial than you did in deposition.   You should prepare carefully for your deposition with your attorney.
  7. Dress appropriately for court and mediations: This means a suit and tie for men and a conservative suit, dress or skirt and blouse for women.
  8. Follow the Rules of Decorum:   Turn your phone off.  Don’t wear a baseball cap.  Do no chew gum. Be respectful to the judge, the clerks of court, opposing counsel, and your spouse. Everything you do in the courtroom is visible to the judge, and judges watch behavior carefully.

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183.

NC Rule 45(f) and the Out-of-State Witness

Rule of Civil Procedure 45 is where you will find the rules related to subpoenas in North Carolina.

In 2011, the NC General Assembly amended Rule 45.  One of the amendments that is very important relates to obtaining discovery from outside the state of NC and imposes a very new process on parties wishing to obtain discovery from individuals outside of North Carolina.

Out-of-state witnesses can be important in alimony, custody, and equitable distribution cases and anywhere that an affidavit of the witness will not be accepted.

 

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Raleigh divorce lawyer Scott Allen handles modification of equitable distribution, alimony, divorce, custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Infidelity Testing in North Carolina

I’m a divorce lawyer who clicks around Google quite a bit.  I came across some information that each month about 1600 Americans do a Google search for “infidelity testing.    So for November that number is now 1601; I had to see what all the searching was about.

When you search for “infidelity testing” you’ll mainly get links to sites that sell kits that are advertised as a way of detect semen in clothing.  They are marketing to the man who thinks his wife is cheating.  So you know where that is going and it is fascinating.

Let me start with quoting a testimonial from one of the high-ranking results for one of these test products:

XXXXXX is the real deal. I had some clothing tested at a certified DNA Lab that is ISO certified and have all the legal certifications a lab has to have. The same clothing I tested with XXXXXX, the Lab found to be positive for sperm and semen. They even sent me micro pics of the little devils. All this was after I had the items checked with XXXXXX. This product is the real deal, case closed!!!!!!”

Case closed!  No, not really.  A review of the product and its implications left me with some unanswered questions:

  • How could this benefit/hurt one of my divorce clients; and
  • How could I get the results of one of these tests into evidence (perhaps over the chuckles of the district court judge?)?

Let’s explore these issues.

First, how could this benefit a client?

On one level solid proof of infidelity adds some certainty to what might have been simple concerns or a hunch about marital infidelity. This certainty allows the wronged spouse to make decisions about either working on the marriage or divorcing with more information, and in rational decision-making, more information usually helps.

Proof of adultery still has a place in North Carolina divorce law.  This kind of sexual behavior could impact alimony and divorce from bed and board cases.  Without going into many of the details in this article, the classic methods of proving adultery in North Carolina cases is by (1) someone admitting the adultery, (2) someone saying they saw the adultery, or more usually, (3) by circumstantial evidence of opportunity and inclination.

How could it hurt a client?

Unfortunately, the results could be wrong.  That could lead to bad consequences for the marriage and for the client if it is wrongly assumed the results are correct.

Second, from the clients’ point of view, they all say they want to know if their spouse is cheating or not.  I have had strong men break down crying in my office after I told them what our PI reported that the client’s wife had been up to.  It’s devastating knowledge.

It’s probably also the case that if a person is at a point of swiping their wife’s underwear to send off for testing at some location far away has some marital layers of distrust and underlying marriage problems that put them in the pipeline for a divorce.

How Could I get These Results into Evidence?

It would not be easy. In fact, I don’t think a judge is going to let one of the home test kit results into evidence.

In cases I have handled the district court judges are certainly open to allowing competent scientific evidence in, but there are rules and there are limits.  The science has to be good and the procedures have to be good.

There is chain of custody of the evidence issues, and there is the issue of authenticating the results.

About the only way to get this kind of DNA evidence in would be to have sent the sample off to a lab and then I would need to have an expert from the lab in to court to talk about the chain of custody and scientific method and procedures.   The chance of a judge simply letting the report in is remote.

Also, if I wanted to object to any of this going in, there is a fundamental problem of exclusion.  That is, how do we prove the semen found on the tested article is not that of the husband?  Would that add another level of scientific testing and proof?

In conclusion, with enough financial resources and great care in how this is gone about, there would be a possibility of certain kinds of testing and test results be deemed competent evidence.  However, when all is said and done it might have been better for the client to hire a private investigator to follow the suspected spouse.

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Raleigh divorce attorney Scott Allen has over seventeen years of experience in family law, contested alimony, and divorce from bed and board cases in Wake County and many other counties across North Carolina.

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.