How to Prepare for Deposition

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What steps are necessary to prepare for a Deposition in a Family Law case? So you’re going to sit for a Deposition in front of opposing counsel and you are interested in knowing what to expect. Prior to your Deposition, you will want to meet with your Family Law Attorney. He or she will explain to you what the other side is going to attempt to prove during the Deposition.

In preparation, your attorney will go over what your case is about, theories associated with your case, the purpose of the Deposition, etc.

The scope of a Deposition is very broad. Under Rule 12.280, opposing counsel has the liberty to ask you anything related to the case that may lead to the discovery of admissible evidence as long as it’s not confidential, privileged, a trade secret or something similar. In other words, they cannot ask you anything that you and your attorney have discussed because that’s covered by attorney-client privilege. If you have shared details of your case with a clergy member or therapist, those conversations are typically protected as well.

Upon entering the Deposition, it is important to know in advance that it will be recorded. Your attorney will want you to be aware that a Court Reporter will be present, and a written Deposition transcript will be available at a later date. Or the Deposition may be videotaped.

For those of you who have not participated in a Deposition before, be sure to listen carefully to all of the questions asked by opposing counsel. Before they get started, you may be asked to confirm that you are not under the influence of alcohol or anything else that may impact your ability to answer questions honestly to the best of your ability. Since the Deposition is your sworn testimony, it is taken under oath. If you are untruthful, you may be subject to perjury.

Many times, I remind my Family Law Clients to pause before they answer a question. Doing so, allows your attorney an opportunity to interject an objection, if it is necessary and appropriate. But, if you just blurt out an answer, it’s already out the door, which removes the chance for an attorney to object. Communication with your attorney during a Deposition should only occur during a break. Whispering to your attorney during the Deposition may be recorded as part of the transcript.

When it comes time to provide answers, I encourage my Clients to refrain from speculation or guessing. Phrasing like “to the best of my recollection,” or “I believe…,” is permitted. These phrases are not definite answers, which will make it more difficult for opposing counsel to impeach you for dishonesty.  If there is a situation where you need a document to confirm an answer, you are not provided the document unless opposing counsel presents the document related to the question that is being asked.

While opposing counsel is allowed to bring documentation to support testimony and evidence, Clients should not bring their own notes into a Deposition, as opposing counsel will then ask to see the notes. Testimony is to be given through personal recollection, rather than written documentation.

Something important to note is that once your answers are recorded, you cannot change your testimony when you go to Trial or the subsequent Hearing without a good explanation.

Consequently, if your answer(s) are changed at a later Hearing or Trial, then the opposing counsel will attempt to impeach you and that means to show you were being untruthful in front of the Court. To avoid inconsistency, your attorney should get a transcript of the Deposition prior to the Hearing or Trial. At that point, you should have an opportunity to review it, so you know exactly what you said. By reviewing the transcript, you can make sure that no errors are recorded in terms of spelling or grammar.

Don’t be afraid to turn to your attorney for support. He or she can help you relax throughout the Deposition process and make sure you understand what is going on every step of the way. Should you experience any stress or anxiety related to your Deposition or case, a qualified attorney will be by your side through the process.

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It is our Mission: “To Honor God and Faithfully Represent our Clients with Great Leadership, Attitude, Excellence and Teamwork.”

To speak with one of our experienced Family Law Attorneys regarding the Deposition process, call our office at 407-872-3161.

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Collaborative Law vs. Divorce Mediation in Family Law

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By Orlando Family Law Attorney Tom Marks

First, let me say that both the Collaborative Law Process and Mediation have their place and each can be very beneficial in the right circumstances. However, although they may appear similar at first blush, their focus and processes are different. Both attempt to help the Parties resolve their issues without formal litigation, with the goal being a Settlement Agreement in their case.

One calls that agreement a Collaborative Law Agreement and the other calls it a Mediation Agreement.

Let’s look at the differences.

Collaborative Law vs. Divorce Mediation

Mediation typically involves “positional bargaining,” while Collaborative involves mutual “goal setting.” An essential difference is that in Mediation the parties typically take their respective corners and usually start bargaining from polar extremes.

Each Party normally hopes to end up somewhere closer to the middle or, depending on his or her perspective, closer to their position.

In the collaborative family law, collaborative divorce or collaborative problem solving, the parties come together in a more transparent fashion. They outline their goals together and work together to find common purposes like “protecting the minor children.”

Another difference is the people involved. The Collaborative Process includes a team working together, not just the Clients and their Attorneys. The team includes a Collaborative Mental Health Professional and a Financial Collaborative Professional. These two professionals are considered “neutrals” and they do not advocate for one side or the other; they are part of the solution. And the attorneys, because they sign the Collaborative Agreement stating that they will not take the case to Court, are also vested in reaching resolution in the Collaborative Process.

One last important difference: although all Family Law cases in Central Florida are required to go to Mediation before they proceed to any contested Hearings, Collaborative Cases only proceed where both parties agree. There has to be some level of trust and willingness to be open and transparent for the Collaborative process to be effective. However, the potential benefits are tremendous for the parties, their children, finances and futures. But if the trust isn’t there or the Collaborative Process is not an option, Mediation is still far better than formal litigation, which usually results in substantial pain to everyone involved.

Check out this video of Attorney Tom Marks and Attorney Ronald Sims discussing Collaborative Law vs.  Mediation:

 

Orlando Collaborative Family Law and Professionalism

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By Orlando Collaborative Family Law Attorney Tom Marks

I believe that the vast majority of attorneys are caring and professional in their behavior and advocacy for their clients. In our adversarial system it is only natural though that by the end of the case, at least one of the parties will feel like they lost. That is especially true in Family Law, the area I practice in.

Of course, it doesn’t have to be that way and that is one of the reasons I have developed a Collaborative Family Law Practice where husbands and wives agree to work together to resolve the issues without having to take the case to Court.

Not only are both parties winners in Collaborative Law, because they avoided acrimonious Litigation, but also because both parents together have focused on their kids’ best interests.

I have actually participated in Collaborative Law Cases where both parties have felt like they are not only happy with the final results but that they believe they have done everything they can mutually to protect their children and to ensure that their children thrive even after the Dissolution of Marriage. They have chosen to love their children the most and to continue to be friends in order to co-parent their children in the most healthy and productive way possible.

A Word About “Collaborative” Family Law Attorneys

Attorneys who practice Collaborative Family Law are some of the most professional, ethical and caring lawyers I have ever met. The focus is no longer on litigation and winning at no small expense, financially, emotionally, psychologically and spiritually to the clients. And in  addition to the Collaborative Family Law Attorneys, there are highly professional Neutral Collaborative Professionals like the Financial Collaborative Professional and the Mental Health Collaborative Professional. They assist the clients and attorneys in putting together Equitable Distribution Worksheets and other financial documents as well as the Parenting Plan and other important documents in the case.

I am not saying that Family Law Attorneys involved in the Litigation aspects of Family Law are not for the most part Professional. There certainly are many. But those Attorneys who have decided to focus on Collaborative Family Law, do it I believe, because they care about the process of helping clients resolve their cases in the healthiest and most productive way possible.

A Life Well Lived

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by Family Law Attorney Tom Marks

I went to a funeral for a 20-year-old young woman named Jenny recently. She was the daughter of two of our best friends, Mike and Lisa who we have known for about 25 years. My wife and Lisa were pregnant together and our daughter was born two months before Jenny. Then our sons were born one month apart a couple years later. So we have lived a lot of life with our friends Mike and Lisa.

Jenny was born with a diaphragmatic hernia and had probably 50 surgeries during her short 20 years of life. Although she had significant medical issues and had to rely on oxygen most of her life she was a determined and amazing young lady.

Although we have known Mike and Lisa for 25 years I still learned so much about Jenny from the many people who got up and spoke about her many accomplishments from working at Chick-fil-A to attending college at Florida Southern College in Lakeland. Jenny had a 4.0 GPA and was in the process of working with Florida Southern and Arnold Palmer Hospital to create a new degree major called a Child Life Specialist.

The church was packed with people who Jenny had positively impacted during her life and there were a flood of tears shed but also a lot of appreciation for all of her accomplishments and the lives she’d touched. She helped families and other young lives through some very similar difficult medical paths that she had taken.

For someone who had gone through so much she had an enduring spirit, a quick wit and a precocious and determined personality. She touched a lot of people in very positive ways despite her circumstances. In short, she left a legacy that lives on.

I hope many who read this will pause to consider that perhaps our circumstances are really not that hard and just maybe we can rise above to see how much we have to appreciate and how great an impact we can have on the lives of others, just like Jenny did.

Blessings!

Reaching a Common Ground

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By Family Law Attorney Tom Marks

I went this last week to visit Regent University in Virginia with my daughter and we went to an event called the “Clash of the Titans.” It was a debate from the political left and right moderated by Dana Perino, of the Fox news show called “The Five.”

The two conservatives, Newt Gingrich and Jay Sekulow debated the two liberals, David Axelrod and David Plouffe. The focus of the debate was on “Executive Powers” and involved some of the most divisive issues of our day, including Obamacare, the medical exchanges currently in disarray and the IRS targeting conservative political groups. Of course, issues like the recent partial federal government shutdown and the threat of defunding Obamacare were on the table for a potentially polarizing and out-of-control argumentative free-for-all.

However, even though the participants did not agree on many of the pressing issues facing America today, they maintained civility and respect for each other’s ideas, goals and positions. It made me think of The Marks Law Firm’s Family Law Practice and how even opposing parties in the Dissolution of Marriage Proceedings can still act civilly and seek common goals of protecting the minor children and properly co-parenting them into the future. I see those successes in my Collaborative Family Law Cases and even in the more traditional litigated Family Law Cases.

Even with gridlock in Washington DC, these politicians from opposite sides of the political spectrum could still agree to disagree in a debate on the issues and then sit down and have dinner together and try to reach common ground for the good of the country.

I believe parents should and can do the same thing even through a divorce, for the good of their minor children.

Family Law and the Golden Rule of treating Family Law Clients

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By Family Law Attorney Tom Marks

I have been practicing family law in Orlando for about 27 years now and I continue to be amazed at how poorly some lawyers treat their clients. These types of divorce attorneys tend to treat their clients as a “one time transaction.”

This has many adverse consequences for the client as well as the attorney. The clients’ overall long-term best interests are often overlooked and as a result, should the client need further help in the future, they do not return to the attorney that treated them like a “one time transaction.”

Family law attorneys that practice the “Golden Rule” put themselves in their clients’ shoes and ask the question, “If I were the client how would I want to be treated?” So no matter whether it is a financial case, involving Alimony, Equitable Distribution, Child Support or Attorneys’ Fees, or if it is a case involving minor children’s issues like Time Sharing, Right of First Refusal and Shared Parental Responsibility, the attorney needs to employ empathy and consider how they would want to be treated if they were the client.

The attorney who puts the client first rather than the financial demands of the law firm will reap the benefits of having highly satisfied clients who will readily recommend them as a family law attorney to their friends and anyone else they come in contact with. The attorney will also benefit from an improved reputation, greater satisfaction in his or her work and having a sense of purpose and value in his life.

At The Marks Law Firm we treat our clients as eternally meaningful human beings and that we have been placed here to serve in such a way that they are actually better off at the end of their case then when they first showed up at our door. We do our absolute best to communicate clearly, represent zealously, seek best case solutions and to improve our client’s situation by offering hope and a future to them at the end of our representation. We enjoy building friendships and relationships that will last a lifetime and beyond.

The Crucible of Family Law

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by Family Law Attorney Tom Marks

I just finished reading an interesting book entitled “Leadership in the Crucible of Work” by Sandy Shugart. A crucible is essentially a hardened ceramic vessel in which chemical reactions take place under great heat and pressure. The author applied that concept to the heat and pressure many of us feel in the work environment.

I would like to take that one step further into the realm of family law and when our clients find themselves in the crucible of family law.

Take all of the hopes and dreams of a marriage with children, the family home, incomes, bank and retirement accounts and all the debt looming over everything and then pour all that into the crucible we call a dissolution of marriage.

The financial, communication and other relational issues that have brought the marriage to this place are now poured into a petition for dissolution of marriage and put under great heat, pressure and reactivity.

Financial pressure of the marriage is heightened because now the parties cannot live as well financially in two separate households as well as they did in one. They cannot communicate as well separately as they might have when they were together and they are further estranged from one another as they move further and further apart, geographically, emotionally, psychologically and spiritually.

However, sometimes under great pressure people can rise to the top and produce something even stronger than before. Like melting iron and copper together in the crucible to form bronze, some people grow stronger and more resilient through this difficult process we call divorce.

Sometimes it is necessary because of abuse, abandonment and infidelity. That is not to say divorce is always the answer. It is certainly not. But sometimes its result is something stronger, more focused and more resilient.

Family Law and Attorney Leadership

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By Family Law Attorney Tom Marks

I read a great book while on vacation last week on the topic of leadership. You might ask what does leadership have to do with a family law practice. Don’t family law attorneys just deal with divorce, timesharing, children’s issues, equitable distribution, alimony and the like?

Well actually, good family law attorneys are all about leadership. If the divorce attorney is open to new ideas and ways of helping others, then he or she is able to influence, teach and mentor others in the process. When the client arrives in an emotionally and financially vulnerable place, the attorney can exercise integrity and leadership to help the client navigate through the divorce, modification, enforcement or other any other type of family law case.

Good family law attorneys, as leaders, need to have a vision and be able to communicate that to the client. They also need to have good communication skills and to be highly competent in their profession. Great leaders, who happen to be family law attorneys, need to have great people skills and be able to coach their clients through a very difficult process. They need to be open to doing what is in the best interest of the client, even if that means helping them reconcile their marriage and keep their family together. That is called integrity.

I have read a lot of books on leadership and have always tried to exercise the principles I’ve learned not only in my personal and family life but also in my professional life as a family law attorney.

What Kind of Family Law Attorney Are You Looking For?

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By Family Law Attorney Tom Marks

Some people want an experienced, more expensive Family Law Attorney and some people want a newer, less expensive Family Law Attorney. Some people want their attorney to be a “bulldog” and some people want someone who cares about them and their future.  Is it possible to get all of these in one Family Law firm? Let’s explore this question.

The Marks Law Firm has several attorneys, with professional rates ranging from $275 to $450 per hour. We also have attorneys with experience levels from 3 to 44 years. The Firm has an experienced team of paralegals with rates of $125 per hour.

So how do you put all of those fees and costs together in the most cost effective, efficient and strategic way? The answer is that we work as a team. The paralegals support the attorneys and do whatever they can under the supervision of the attorneys to keep costs down.

For those looking for a more cost effective source of representation, we pair the paralegals with the more entry-level attorney(s). On bigger more complex cases we utilize the more experienced attorneys along with the paralegals and if necessary the more cost effective younger lawyers.

Of course we have administrative support staff including our Receptionist, Office Manager and Marketing Director.  This provides administrative support that includes having non-legal client questions answered without charging the client. In addition, we bring the client on as part of the team with the paralegals, attorneys and support staff.

The client knows the facts as to what has occurred in the marriage and leading up to the Dissolution of the Marriage, Paternity action or any other family law matter we might be handling for them. I like to say we “row the boat together” or we “plow the field together”. That way the client, as part of the team, works in unison with the paralegals and attorneys in a very collaborative and synergistic way. I have found this team effort to be a great way to be on the same page with the client in presenting our case in Mediation, to Opposing Counsel or to the Court.

We make every effort to resolve each client’s case in an amicable and an uncontested fashion. However, when we find the other side being completely unreasonable and unwilling to resolve the family law matter in a positive realistic way, we are experienced enough and ready to litigate our clients case to the fullest.

You might call that, “being a bulldog,” we would call that “representing our clients zealously”. So we are able to provide the whole range of family law services and competencies to the Client, bringing the Client on to the team of Attorneys, Paralegals, Legal Assistants, and Administrative support staff. Simply put, we care deeply about our Clients. We want to see them better off for having been represented by The Marks Law Firm. We strive to represent our clients with integrity, excellence and devotion. Our clients are our mission.

Collaborative Law: An Orlando Divorce Alternative

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by Family Law Attorney Tom Marks

Divorce is not always possible to avoid and that we don’t live in a perfect world. It is our goal at The Marks Law Firm to help our clients through what is probably the worst time in their whole lives. We do this so our clients are clearly better off for having been our Client than they would have otherwise been, and they are better off leaving our office than when they came in to see us.So what are some of the options if you and/or your spouse are not able to reconcile or work out your differences?

Of course there is the traditional litigation model which can be very expensive in terms of money, time, emotions and family devastation. This option is sometimes unavoidable because of the issues and perhaps personalities involved. It however, should never be the first choice. If the case goes all the way to Trial it can take months if not more than a year and it can cost tens of thousands of dollars.

I have always practiced law in a collaborative way with what we call a small “c”. By that I mean that I do everything I can to help the parties and counsel work together collaboratively or amicably to save time, money and emotional/psychological trauma. I have been trained now for a number of years in Collaborative Law with what we call a capital “C”.

The difference is in the Collaborative Law with a capital “C”, the Parties sign a Collaborative Agreement that basically says they are willing to pursue a resolution of the case without the expense and trauma of litigation and the Collaboratively trained Attorneys in the case also sign the Collaborative Agreement committing to the Collaborative Process.

The Collaborative Attorneys also commit not to take the matter to Court and through the Litigation Process if the Collaborative Process fails. This removes any and all interest an Attorney might have in the Collaborative Process failing because, 1. They lose a client and 2. They do not get the work to take the case through the Litigation Process.

Essentially the Parties and their Attorneys are all committed to seeing the Collaborative Process be successful because all of them have a vested interest in seeing it succeed. In order to further the prospect of seeing the process succeed, the Collaborative Process also includes a Mental Health Collaborative Professional and a Financial Collaborative Professional. These two “Neutrals” help the team move the process forward within their spheres of expertise.

The Mental Health Collaborative Professional leads the team, insures that the Parties appropriately express their goals and expectations, and moves everyone toward a successful resolution of all issues. The Mental Health Collaborative Professional also meets with the Parties to develop the Parenting Plan if there are minor children.

The Financial Collaborative Professional compiles all of the financial data, drafts Child Support Guideline Worksheets, Equitable Distribution Work Sheets and perhaps Alimony Analyzer Worksheets as options for the Parties and their counsel to consider. Both the Mental Health Collaborative Professional and the Financial Collaborative Professional are “Neutral” and so they do not take sides.

Finally, because the Attorneys are not involved in drafting the Parenting Plan, Child Support Guideline Worksheets, Equitable Distribution Work Sheets, or Alimony Analyzer Worksheets typically, the Attorney Fees in Collaborative Cases can be substantially less than in a traditional Litigation Case.

The Attorney Collaborative Professionals are still actively involved in Providing Legal Input and Advice to their Clients and the Clients still enjoy an Attorney Client privilege with their respective Attorney.

Probably the best thing about the Collaborative Process is that the Husband and Wife are able to express their respective goals in a safe, open and professional environment while receiving both neutral input and legal advice.

They can reach an informed and very personal and specific resolution that meets their overall expectations and family needs. They can walk out of the process knowing they have each been fully heard and their goals have been met. They can move forward without the devastation which so often occurs in standard family law litigation.