TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #6

June 14, 2012 § 4 Comments

This is the fifth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #6 …

Spend some time in trial prep making sure your 8.05’s will do their job.

Your UCCR 8.05 financial statement is often the most important document in evidence. If you have left it to the client to complete without any help, or it is slapped together, it won’t be as effective as one that has some thought and preparation behind it.

UCCR 8.05 states: “Unless excused by Order of the Court for good cause shown, each party in a domestic case involving economic issues and/or property division shall provide the opposite party or counsel, if known, the following disclosures …” And it goes on to spell out what the form needs to include.

Here are some ways to make your 8.05’s more effective:

1. Never present a financial statement that you have not gone over in detail with your client. You have seen hundreds, if not thousands, of 8.05’s, but this is probably the first one your client has ever seen. Why would you think that the client will somehow innately know how to complete it, and how to complete it effectively to aid his or her case?

As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it. If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it. If the client can not defend the number, suggest that the client reconsider it.

And while you’re at it, make sure that your client knows what he or she included in every category. Are there duplications? For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing? Don’t just take your client’s figures at face value; inquire about them. I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her. When I asked what she usually spent on entertainment, she said $50. In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client. Her attorney had simply taken her word for the $480 expenditure without questioning behind it.

If you really want to do an above-average job, require your client to have one or more bills in hand that support the figures claimed. For instance, two or three MasterCard bills showing expenditures for clothing and what has been spent on the card, and the tithe or donation report from the church, and the Comcast bills for the past 6 months, and the cancelled checks for utilities. That way when counsel opposite tries to attack a line item at trial, your client can confidently say, “Oh, yes, I can back that up.” 

2. Always have the statement typed so that it clearly presents your client’s position. A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job unpleasantly more difficult. Take the time to type the figures in their proper places and make sure they add up properly. Remember: the easier you make the judge’s job, the more likely it is that you will have a happy outcome.

3. Make sure the tax returns are attached. Copies of the preceding year’s state and federal income tax returns ”in full form as filed” are required. This means that all schedules and w-2’s must be attached. If a document was sent with the original return to the IRS, a copy of it must be included.

4. Have an adequate number of copies. “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.” This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself. It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it. It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.

5. Include a complete employment history. Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule: “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.” This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.

6. Be sure to address any discrepancies in your examination of the witness. If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it. If expenses exceed income, how is the client managing to pay the difference? If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.

7. Use an up-to-date statement. A financial statement prepared six months ago in discovery and not updated since is simply not a statement of ”actual income and expenses and assets and liabilities,” as required in the rule. It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation. If you come to court without an updated statement, the court may continue your trial to require you to prepare one.

8. Have your client sign and date the statement. The Court of Appeals has been critical of unsigned financial statements.

9. It’s better to hit the highlights than to needlessly repeat every item. The best way to lose your judge’s attention completely is to go over every line with your client. Better to touch on the items that are most important to your client or most susceptible to attack on cross.

10. Remember that a month has more than four weeks. A month is 52 weeks divided by 12, or 4.3. A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

11. Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”

12. Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused category like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.

13. Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.

14. Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, and retirement contributions.

15. Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.

You should redact all Social Security numbers. The proper procedure to accomplish this is in UCCR 8.05(B).

Keep in mind the cardinal rule of practice in chancery court: “The easier you make the chancellor’s job, the more likely you will have a favorable result.” When you present an 8.05 that is hastily scribbled out by a client with no guidance, with uncalculated or undecipherable figures, without the proper documentation attached, in sloppy form, you are making the chancellor’s job disagreeably more difficult, and you may not enjoy the outcome.

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§ 4 Responses to TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #6

  • Dustin Thomas says:

    What is your thoughts on deducting health insurance premiums now that they are mandatory under the ACA?

    • Dustin Thomas says:

      are your thoughts lol that was bad

      • Larry says:

        MCA 43-19-101(3)(b) spells out which “legally mandated” deductions from gross income are allowed, and health insurance is not included, so I think your argument would fail; however, under 43-19-101(6), the cost of health insurance must be considered by the court and the amount of support may be adjusted if the custodial parent is ordered to maintain it. Also 43-19-103 allows the court to deviate from the guidelines for “extraordinary” medical expenses of the child.

  • […] by the parties.  Chancellor Primeaux recently emphasized the importance of 8.05 statements in Tip 6 and Tip 9 of his “Top Ten Tips to Impress a Chancellor at Trial” […]

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