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Tag: judge

Is It Possible to Discredit a Biased Custody Evaluation Full of Unsubstantiated and False Claims?

Yes, it is possible, but not always possible, and when it is possible it is often very difficult to accomplish.

Difficult not because custody evaluators are particularly competent (they typically are not, in my experience) but because the family law system appears to love custody evaluations.

And why does the system love custody evaluations?

  • One main reason: it takes the job of reviewing and analyzing the child custody evidence off the judge’s plate.
  • Another reason: some courts honestly find custody evaluations truly informative. In fairness, a custody evaluator who gathers relevant facts, analyzes them clearly and understandably, and makes cogent recommendations based upon the evidence and analysis with minimal reliance on subjective opinion provides a valuable service to parents and court alike. Rarely, however, are a custody evaluation performed and the recommendations made competently.
  • Another reason: regardless of whether the judge was being sensitive and thorough in analyzing the child custody issues, it makes the judge look that way.
  • Another reason: if the judge wants to rule a certain way and the custody evaluation supports what the judge wants to do, the judge can praise and cite to the custody evaluation (if the judge wants to rule a certain way and the custody evaluation is contrary to what the judge wants to do, the judge can simply (even blithely) dismiss the evaluator and evaluation—in classic 20/20 hindsight fashion—as “insufficient” or “incomplete” or “lacking detail” or “poorly reasoned” or “failing to address [fill in the blank here]” or “subjective”, etc. You may wonder whether it is fair to say such things of a custody evaluator and the evaluator’s report. It usually is, but even if it’s not (i.e., the evaluator did a commendable job), that won’t stop a judge who’s bent on ruling the way the judge wants to rule).

How do you refute an incompetent/inaccurate custody evaluation and recommendations? I could give you checklist, but that wouldn’t apply in all situations. The harsh reality: to refute and overcome a bad custody evaluation (“bad” meaning defective, not “performed competently, but adverse to me”) you will need to be prepared to spend a lot of money on 1) an excellent, skilled, fearless attorney; and 2) a rebuttal expert of your own who is more qualified and experienced and more articulate than the custody evaluator you are seeking to discredit. The attorney and rebuttal expert you need don’t come cheap.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-it-possible-to-discredit-a-biased-custody-evaluation-full-of-unsubstantiated-and-false-claims/answer/Eric-Johnson-311

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You Can’t Tell What The Judge Is Thinking By Braxton Mounteer, Legal Assistant

I recently accompanied my boss to the trial of a divorce case. If I had had to place a bet on what the judge was thinking at given moment or what the rulings would have been during the trial or at the end, I would have left the courtroom much poorer. One of the things that struck me most about trial was my inability to determine the importance a judge gives to the evidence and to witness testimony. I could not consistently predict which way the judge was leaning at any given moment. But it’s not solely a matter of my inexperience with the legal system. My boss (who has considerable trial experience) told me he encounters the same thing.

We believe this is intentional on the judge’s part, that judges deliberately wear a poker face (some better than others). If a judge expressively reacted to a piece of evidence or to testimony, it might give a false (or true) indication that the judge is favoring one party over the other.

An actual trial is not like the movies and television shows would have you believe (at least at a divorce trial isn’t). There was no audible gasp from one side or the other when a piece of evidence was entered. The lawyers don’t (at least not typically) swagger around the court room cracking wise or orating so as to bring the room to tears. It really was just the evidence and argument from one party versus evidence and argument of the other.

Now a judge being inscrutable is not to say the judge sits stone-faced and silent until the trial ended. The judge can and usually will make clear and candid statements occasionally during the trial. Sometimes the judge will ask a witness questions of his or her own, but sparingly (judges are discouraged from doing too much of their own questioning). And the judge obviously must rule on objections raised during the questioning of witnesses too. During recesses, the judges and attorneys and sometimes even the parties and witnesses may chat about sports or local news to unwind a bit from the tension that builds up over the course of the trial. Some judges will essentially let the lawyers go until the time runs out. Other judges may inform the parties and their lawyers whether the direction they are taking the case in isn’t all that useful to the court in reaching its ultimate decision.

The notion of “reasonable minds can differ” stands out in stark relief at a trial. Sometimes what the lawyer tries to persuade the court to do and what the court decided are the same, but other times what the court did with the evidence can really surprise you. Keep that in mind when you’re convinced that the judge could not possibly rule any way but the way you favor. The better you understand all the possible arguments, the more accurately, reasonably, and persuasively you can make yours.

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Is there a difference between hearings and trials in Utah divorce cases?

Yes. A hearing is not the same as a trial. While there may be some similarities, they are not the same thing and do not accomplish the same objectives.

The primary difference between a trial and a hearing is that a trial disposes of the law suit after the parties present evidence to the judge for a final ruling on the case. The trial is the end of the case (unless there is an appeal after trial, but that’s a different subject for another blog).

Hearings take place before trial, are usually shorter than a trial, and are used to resolve issues that arise during the pendency of the case before trial. You can and likely will have multiple hearings in your case, while there is just one trial.

Hearings usually take minutes or hours. Trials take longer, usually several days or weeks.

Hearings take place before trial.

Your first experience with the courtroom (whether in the courtroom or whether you participate via remote video conference) will almost surely be in a hearing, not trial.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Is Court-Ordered Therapy Over-Used? By Braxton Mounteer, legal assistant.

Whether you believe that everyone needs (or could benefit from) therapy or that it is only for the most dysfunctional families, you, like most people, likely agree some therapy has a place in family law matters. For all the benefits of court-ordered therapy, however, therapy can be misused and abused.

For therapy to be effective in these kinds of settings, if you don’t have willing and earnest participation, it’s not going to work. It is hard work to confront your own faults and the faults of those who may have hurt you. It’s hard to better yourself. It’s hard to reconcile with past abuse, betrayals, and other kinds of mistreatment. One who is forced into therapy will, in most cases, refuse to participate or even actively oppose it. Is it any wonder why?

Courts often order too much therapy, with “too much” meaning either ordering therapy too often, or ordering therapy for too long. There are many reasons for this, but two of the worst are virtue signaling courts and greedy therapists.

Many judges and commissioners order therapy so that they can’t be accused of not being thorough, of not being sufficiently sensitive and caring and protective. This results in therapy being ordered even when it’s not needed or even warranted. It’s easy for courts to order therapy. It feels good. It’s a cheap, easy way for courts to look good. It doesn’t cost the commissioners and judges a penny to order therapy.

The point of ordering family members into therapy is rarely “eh, see if it helps.” Not everyone needs therapy. Some problems aren’t problems (or big enough problems) to warrant therapy. It’s likely a safe bet that most people might benefit from a little therapy. We’re all flawed. “Better safe than sorry” is tempting, but forcing people into therapy who aren’t dysfunctional can itself cause dysfunction.

I am referring to the emotional equivalent to scraping your knee. Those situations wouldn’t require the emergency room or physical therapy. However, when a court orders therapy left, right, and center, is making something that can help a lot of people into a hammer and every potential problem a nail.

You may say, “Well, even if the only benefit that therapy provides is a place to voice your problems, it is still better than nothing.” and you would be wrong. What if a child is handling the divorce well and putting him or her in therapy makes the child falsely feel he or she is being treated for a non-existent problem? Money wasted on needless therapy could leave one unable to pay for other needs in other aspects of one’s life and the life of one’s children.

If you are an aggressive and abusive husband or an emotionally abusive and cheating wife and your children take issue with that, it’s your fault. Therapy isn’t glue to keep your family together. You can’t expect someone to keep a ship afloat if you are constantly drilling holes in the hull. Sometimes you really are the problem and could benefit from facing and fixing your issues. When courts default to ordering therapy as a catch-all cure-all, they’re phoning it in. No one benefits from that. If you’re afraid to oppose therapy because you’re afraid you’ll be labeled anti-child or anti-caring, don’t be. If the court can’t make a cogent case that therapy is truly necessary or clearly warranted, have the gumption and courage to object. If you don’t, then you have no one to blame but yourself, if needless knee-jerk therapy is ordered in your case

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How likely is a judge to give the non-custodial parent 50-50 parenting time after the primary custodial parent has been the primary parent for three years?

Before you read another word, know this: the answer in these situations is, “It depends on many and varying factors.” Nobody likes that kind of answer, but it’s the truth here.

Consult several attorneys in your jurisdiction about whether you may have a good case for a change of custody, if you believe you may. Many attorneys who consider themselves or bill themselves as “good and knowledgeable” attorneys on this subject don’t really know. Get second, third, and fourth opinions (but be warned: if an attorney tells you what sounds too good to be true, it likely is too good to be true and is being told to you to part you from your money).

Generally speaking, if no circumstances pertaining to the child custody award have changed substantially and materially during that three-year period, it is highly unlikely that the court would modify the child custody award and award the non-custodial parent custody of the children.

So, just what is a substantial and material change in circumstances pertaining to the child custody award? I cannot speak to how all jurisdictions define it, but in Utah (where I practice divorce and family law), the substantial and material change in circumstances that will lead to a change in the child custody award is overwhelmingly a change for the worse in the custodial parent’s circumstances. Even if the non-custodial parent could indisputably prove that he/she has significantly bettered himself/herself as a parent, if the custodial parent has become no worse than he/she was when the custody award was originally made, if his/her circumstances are substantially unchanged, then a modification custody will not likely be deemed appropriate or in the best interest of the child(ren).

But what if a court expressly stated that a parent was not awarded sole or joint custody due to suffering from some defect, that but for that defect he/she would have been awarded custody, and that the parent has since remedied the defect? In Utah, that could be a basis for modifying the child custody award. (See Hogge v. Hogge, 649 P.2d 51 (Supreme Court of Utah 1982)

If neither parent’s circumstances have substantially and materially changed, but the child’s circumstances have substantially and materially changed since the original custody award was made such that it would be in the child’s best interest for custody of the child to change, that could be a legitimate basis for seeking to modify the child custody award.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-likely-is-a-judge-to-give-the-non-custodial-parent-50-50-parenting-time-after-the-primary-custodial-parent-has-been-the-primary-parent-for-three-years/answer/Eric-Johnson-311?prompt_topic_bio=1

https://www.quora.com/profile/Eric-Johnson-311/https-www-quora-com-How-likely-is-a-judge-to-give-the-non-custodial-parent-50-50-parenting-time-after-the-primary-cust

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Last Week, My Ex Came Into Family Court Smelling of Pot but Still the Judge Favors Her Over Me. What Can I Do?

Does your jurisdiction permit people to make use of marijuana recreationally? Or to make use of it with a doctor’s prescription or a “medical marijuana card”? If so, then smelling of marijuana may not be enough to cause a court concern.

Otherwise, did you bring your ex smelling of marijuana to the court’s attention? You certainly could have. If you have another court hearing or other appearance coming up, and if your ex shows up smelling of marijuana again, you can certainly speak up and express your concern that your ex may be making illegal use of marijuana and/or abusing marijuana.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/The-father-of-my-child-has-visitation-rights-ordered-by-court-yet-he-will-be-in-a-different-state-during-his-visitation-time-but-wants-his-aunt-to-take-over-do-I-have-to-allow-his-aunt-visitation-while-he-s-on

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How Long Does a Child Custody Court Hearing Take?

rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-long-does-a-child-custody-court-hearing-take/answer/Eric-Johnson-311

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How do I file a response in a divorce if the summons is invalid?

How do I file a response in a divorce if missing the court’s address for filing invalidates the summons?

Be very careful getting cute with procedural technicalities. If you were served with a summons that is defective only because it does not include the address of the courthouse where the underlying action was filed, you may or may not have an argument for defective service of process. But to test that theory you may have to take the risk of being defaulted and then moving to set aside the default and default judgment and hoping you prevail on that motion. That is not a risk I would be willing to take myself. 

What you need to do immediately is consult a good attorney (i.e., a knowledgeable, skilled one) and fast, i.e., before the time in which to file a responsive pleading has expired, so that if you, after conferring with at least one good attorney, determine you need to file something with the court before the responsive pleading time expires you can. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-do-I-file-a-response-in-a-divorce-if-missing-the-court-s-address-for-filing-invalidates-the-summons/answer/Eric-Johnson-311

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What’s it called when a judge gives a party an illegal advantage?

I believe one term you may be thinking of is “prejudice.” The word “prejudice” has a particular meaning in the law. According to Black’s Law Dictionary (the bible of legal definitions): 

2. A preconceived judgment or opinion formed with
little or no factual basis; a strong and unreasonable dislike or distrust. —
Also termed preconception. — prejudice, vb. 

Prejudice literally means “pre judge”. According to www.etymonline.com: 

prejudice (n.)

c. 1300, “despite, contempt,” from Old French prejudice ”a prejudice, prejudgment; damage” (13c.) and directly from Medieval Latin prejudicium ”injustice,” from Latin praeiudicium ”prior judgment, judicial examination before trial; damage, harm,” from prae- ”before” (see pre-) + iudicium ”judgment,” from iudex (genitive iudicis) “a judge” (see judge (n.)).

Meaning “injury, physical harm” is mid-14c., as is the legal sense of “detriment or damage caused by the violation of a legal right.” Meaning “preconceived opinion” (especially but not necessarily unfavorable) is from late 14c. in English; now usually “decision formed without due examination of the facts or arguments necessary to a just and impartial decision.” To terminate with extreme prejudice ”kill” is by 1972, said to be CIA jargon. 

prejudice (v.) 

mid-15c., prejudicen, “to injure or be detrimental to,” from prejudice (n.) and from Old French prejudiciier. The meaning “to affect or fill with prejudice, create a prejudice (against)” is from c. 1600. Related: Prejudiced; prejudicing. 

Entries linking to prejudice 

pre- 

word-forming element meaning “before,” from Old French pre- and Medieval Latin pre-, both from Latin prae (adverb and preposition) “before in time or place,” from PIE *peri- (source also of Oscan prai, Umbrian pre, Sanskrit pare ”thereupon,” Greek parai ”at,” Gaulish are- ”at, before,” Lithuanian prie ”at,” Old Church Slavonic pri ”at,” Gothic faura, Old English fore ”before”), extended form of root *per- (1) “forward,” hence “beyond, in front of, before.” 

The Latin word was active in forming verbs. Also see prae-. Sometimes in Middle English muddled with words in pro- or per-. 

judge (n.) 

mid-14c., “public officer appointed to administer the law” (early 13c. as a surname), also judge-man; from Old French juge, from Latin iudex ”one who declares the law” (source also of Spanish juez, Italian giudice), a compound of ius ”right, law” (see just (adj.)) + root of dicere ”to say” (from PIE root *deik- ”to show,” also “pronounce solemnly”).

Extended from late 14c. to persons to decide any sort of contest; from 1550s as “one qualified to pronounce opinion.” In Jewish history, it refers to a war leader vested with temporary power (as in Book of Judges), from Latin iudex being used to translate Hebrew shophet. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Whats-it-called-when-a-judge-gives-a-party-an-illegal-advantage/answer/Eric-Johnson-311

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Is there anything that can surprise a judge during a divorce proceeding?

Is there anything that can surprise a judge during a contested divorce proceeding?  

Of course.  

We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.  

We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels): 

https://nypost.com/2021/12/01/alice-sebold-apologizes-to-man-wrongly-convicted-of-her-rape/  

https://innocenceproject.org/all-cases/ 

And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See: 

https://en.wikipedia.org/wiki/Duke_lacrosse_case 

Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.  

One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be: 

  • honest 
  • the better parent of the two 
  • financially dependent on her husband 
  • under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both) 
    • victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.” 

Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.  

Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect: 

  • he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case. 
  • he is either just as good a parent as his wife or the better parent of the two 
    • and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact 
  • that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife  
  • that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well 

*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-there-anything-that-can-surprise-a-judge-during-a-contested-divorce-proceeding/answer/Eric-Johnson-311  

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What is the argument for hearing a child’s view in a custody decision?

What argument supports taking the views of a child into account when making custody determination?

The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider. 

In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5: 

When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper. 

You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody. 

In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them. 

[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.] 

Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-argument-supports-taking-the-views-of-a-child-into-account-when-making-custody-determination/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 34: Electing judges

Law from a legal assistant’s point of view, week 34: Electing judiciary officials

By Quinton Lister, legal assistant 

I mentioned in a previous post that if I were to build my own legal system that I would make all judiciary officials publicly elected officials. However, I recognize there are pros and cons to electing judges.  

PROS (as I see them): 

  1. Having elected judges would increase the accountability judiciary officials have to the public. In Utah, we can vote to retain a judge, but we do not vote them into office, as they are appointed by the governor.
  2. Electing judges allows the people to have a greater voice in the justice system. What better way to ensure that the judges represent the people then allowing the people to elect the judges?
  3. A judge who is elected has more incentive to act in accordance with the voice of the people, especially if they face re-election. They cannot “rest on their laurels” so to speak.

CONS (as I see them): 

  1. Elected judiciary officials are more susceptible to the influence of special interests. As is the case with any publicly elected official, big money can and will throw its funds behind the candidate they believe will represent their particular interests, even when those interest are contrary to the public interest. 
  2. Publicly elected judiciary officials have more incentive to “legislate from the bench” to appease their constituents
  3. * Electing judges can result in inexperienced judges, if the same judge can’t get re-elected. Electing judges can result in a revolving door of new judges coming in and out of the judiciary each election cycle.

*This could be a potential pro in the eyes of some. 

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Law from a legal assistant’s point of view, week 30: Good Judges

By Quinton Lister, legal assistant 

In the course of my 7 months as a legal assistant to a divorce attorney in Utah, I have already shared some of my thoughts on the role of judges.  

I have come to see how much power judges have and it has given me pause to consider the impact a judge can have on the lives of so many people. It is essential for the courts of Utah (and the rest of the United States of America) to be staffed with good and competent judges. I do not claim to know all of what makes a judge good and competent, but I will elaborate on what I mean by “good” and “competent”. 

What I mean by a “good” judge is a judge that has a good heart. That does not mean a judge who is lax and lenient, unwilling to “make the punishment fit the crime.” Good judges follow the law and construe and apply it fairly and impartially.  

A “competent” judge is knowledgeable of the law and not afraid administer it. Is one who understands the rules of evidence and can be decisive when called upon to be. This is different from what I mean by “good” because competence in this sense means that the judge knows the law, what it means (and what it does not). One who is still learning and willing to learn, even while a judge.  

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What if a parent sued their child for all the money they spent raising them?

What would happen if a parent were to sue a child for every single penny they spent on raising such a child and the judge were to rule in the parent’s favor? 

You’d likely have an incompetent and/or biased judge. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-would-happen-if-a-parent-were-to-sue-a-child-for-every-single-penny-they-spent-on-raising-such-a-child-and-the-judge-were-to-rule-in-the-parents-favor/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 25: Roots

By Quinton Lister, legal assistant 

It is hard to change any undesirable thing without looking at and understanding its fundamental components. For instance, with addiction, the issue is often not the behavior itself. The addiction is frequently covering up a deeper root need or emotional response that we can’t see when looking at the addictive behaviors themselves. The only way to truly be rid of an addiction is to get at the fundamental part. The “root” of the problem. 

I mention this idea about “roots” and change to illustrate it is not uncommon that the reason we cannot make substantial change in our personal lives, and in society, is because we do not really understand the problem (and/or won’t confront the real problem). In the case of legal reform, we look at problematic laws being a possible root issue. But are they?   

Better laws (more clearly written, more rational and implementable laws) are always welcome, but they can’t make the people subject to them better. Better laws need better people to “work”, to benefit society.  

No amount of laws can make up for a lack of moral decency. To get real, effective, lasting legal reform, people reform. That’s not just the public at large, that includes judges, lawyers, law enforcement officers as well. You can change the law all you want, keep creating more and more rules—no matter how well-intentioned–and they will make no substantial change if the people aren’t wanting the good. Good men and women have more influence than merely good policy.  

So, instead of scratching our heads and fighting tooth and nail for an inch in legislative ground, maybe we should take a look at ourselves and our own moral fiber first.  

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311  

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What is the percentage of people who commit/are prosecuted for perjury?

What percentage of people lie while under oath in a courtroom, and how often does someone get prosecuted for perjury? 

Re: What percentage of people lie under oath in a courtroom: 

  • If anyone knows this, I don’t know who he/she/they is/are.  
  • If such statistics could accurately be obtained, I don’t know how they could be.  
  • As with so many things, what constitutes “a lie” is not as cut and dried as it may seem, even to intellectual people. 
  • If accurate statistics do exist, I’m sure most in the legal system don’t want anyone to know about them because I’d bet that if such statistics exist they are not flattering to the legal system.
    • I’m not sure how much we can blame the courts for “failing” to catch lies, however, given that no one is infallible and nobody is capable of detecting lies more than roughly 50% of the time* 

Re: How often someone who committed perjury is prosecuted for perjury: 

  • very rarely 

*Sender Demeanor: Individual Differences in Sender Believability Have a Powerful Impact on Deception Detection Judgments 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-percentage-of-people-lie-while-under-oath-in-a-courtroom-and-how-often-does-someone-get-prosecuted-for-perjury/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 21: Never

By Quinton Lister, legal assistant

I am still new at my job. I have only been a legal assistant since Summer of 2021, but I know for myself that I would never go to court representing myself. There is simply too much going on in the legal system to not have expert help.  

Perhaps you think I am biased because my boss is a lawyer, but I have been to enough hearings and a few trials to know that “Pro Se” ain’t the way to go. Pro Se litigants are at a tremendous disadvantage simply because they do not know what they do not know. Many people elect to represent themselves due to financial constraints, while this is completely understandable, I feel for these people. They are at the mercy of a system that kills the weak (for lack of a more flattering term). The legal system seems more often to create victims rather than protect them. True justice is hard work, and if you are not trained, no matter how hard you work the load will likely be too much to bear by yourself. 

Utah Family Law, LC | divorceutah.com | 801-466-9277 

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What are the biggest mistakes lawyers make when presenting their case?

What are some of the biggest mistakes lawyers make when presenting their case to a jury?

  1. Being long-winded, repetitive, rambling, imprecise, boring.

But here’s the kicker: if you are clear and concise, then what you think are “in the bag” issues may not be, what you think are minor points may be major points in the court’s opinion. And so if you ignore the “in the bag” or “minor” points, then the court might hold that against you. In other words, it’s impossible to know if you’ve said too much or too little. You’re damned if you do, damned if you don’t. Closing arguments can drive you mad, sometimes.

  1. Believing the court didn’t make up its mind long before closing argument.

But here’s the kicker: if the court really hasn’t made up its mind already (it has been known to happen), then you can’t in good conscience “phone in” your closing argument because i) that’s unprofessional and unethical; and ii) you don’t want to wonder what might have been had you tried your best.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-some-of-the-biggest-mistakes-lawyers-make-when-presenting-their-case-to-a-jury/answer/Eric-Johnson-311?prompt_topic_bio=1

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