Judge: Go Back to Basics in Court

August 2009Articles Philadelphia Bar Reporter

Attorneys should get back to basics in the courtroom and avoid histrionics, a Family Court judge advised during a July 13 Family Law Section program featuring hot tips for practitioners.

Presenters included Philadelphia Court of Common Pleas Judge Doris Pechkurow and attorneys Albert Momjian, David Hoffstein and Margaret Klaw.

Judge Pechkurow began the program with a reminder to get back to basics in the courtroom. In a custody trial, always start with the children’s names, dates of birth, ages, parties’ home addresses, other people in the household and work schedules. This data assists the court in formulating a schedule. Plan your case with your closing and persuasive arguments as a guide. Then, plan your evidence, direct and cross examinations. Consider calling the opposing party as on cross to avoid some hearsay objections. If citing a case, bring copies for the judge.

Avoid histrionics such as “judge this is the worst case I’ve ever seen.” Let your evidence speak for itself. Objective discussions are expected in chambers or the robing room and admitting a case’s shortcomings increases credibility. Do not mistake aggressive for competent representation. Being professional and respectful to the court will make the judge more likely to listen.

Partition actions were next discussed by Klaw. A partition action is needed for a client who has an interest in real estate and wants it sold, to get his/her equity out and/or to divest of ownership. The Pennsylvania Rules of Court 1915 et. seq. provide the procedure for partition actions, which proceed as civil actions on a litigation track including a pre-trial conference, discovery and trial. Less flexible than equitable distribution, partition does not consider either party’s financial contribution toward the purchase of the property.

Next, Momjian reviewed pre-marital agreements by advising to start on such an agreement sooner rather than later. He strongly advised to attach disclosure schedules before the agreement is signed. Clients should be advised that full faith and credit will probably apply to the agreement, but possibly not in all states. As an example, Florida does not permit a waiver of counsel fees. Also, advise clients to keep all their records as decades could pass before any litigation occurs. Avoid representing both clients or having one party unrepresented. Send an unrepresented party a letter urging them to get counsel. If referring an unrepresented party to an attorney, be sure to give at least three to four names. In drafting a pre-marital agreement, consider that the longer the period of marriage, the greater economic benefit should be provided to the dependent spouse.

Lastly, Hoffstein shared tips on electronic communication. The guiding principle of a reasonable expectation of privacy is the central issue in obtaining and using e-mails. Certain manners of intercepting e-mails may be criminal. Always ask clients about their passwords and Internet security. Some clients are now using encrypted e-mail, which may become more common in about five years.

Advise clients that wiretapping is not permitted in Pennsylvania as it is a dual consent state. A wiretapping issue to consider is a person recording in another jurisdiction that authorizes single consent.

Pennsylvania also provides that an attorney receiving an inadvertent disclosure must only advise of such receipt. Beware of “reply all,” particularly in a long string of e-mails, and advise clients as well. The propriety of attorneys drafting e-mails on behalf of clients was discussed. While this may be a common practice, some states discipline attorneys for this act.