“Get it in writing.”
How many times have you heard that warning?
Whether it is a warranty for a car or an appliance, or a receipt confirming your return of merchandise to a store, the rule is the same. Get hard proof.
Court is no different, whether it is trial court or appeals court. Hence, the truism, “If you cannot prove it in court, it is as if it never happened.” Without documentary evidence trials would be nothing more than battlegrounds for “he said/she said” claims, resembling the set of a Jerry Springer Show more than a courtroom. To avoid wasting your time arguing the unprovable, here are three tips for “setting the record straight” and gathering the evidence you need to put on your best case:
- Take Screenshots, Videos, and Pictures. Cellphones today are equipped with recording devices and cameras. Chances are you are reading this article on your smartphone. (If you cannot retrieve this article because you have only a flip phone, consider tossing your phone into the same box holding your pager and your eight track tapes.) For those who own a smartphone, use that “handheld computer” to your advantage in your family law case. Take screenshots of harassing messages, custody/visitation problems, community property issues, asset transfers, etc. Take photos and/or recordings of anything you think may be pertinent to your case. It is always easier to delete something not needed than it is to retrieve something that is gone. Keep a copy of all voicemails. The more information you provide to your attorney, the more they can help you. (Note: You need to print out the information that you have saved via screenshot. If you plan to just “show the judge your phone” in court, you run the risk of the judge seizing your phone as evidence.)
- Follow up Phone or In-Person Conversations with Documents. Send a quick text or email summarizing or recapping a conversation you just had, so your ex cannot try to wiggle out of it in the future. (Hopefully, your ex will acknowledge the email and its contents, but there is no guarantee.)
- Remember That if it is in Writing, it Can (and Probably Will) be Used as Evidence. Your ex is probably taking screenshots and pictures of everything just as you are. Being polite and civil to your ex (even when he/she is being hostile) can go a long way with the court. Remember this: since everything in writing will most likely be used as evidence, any text or email written to your ex is akin to writing it directly to the judge. Keeping this in mind will prevent you from allowing your ex to trigger you into saying things that can (and will) be used against you later. (Note: Make sure that your communications with your ex are consistent with what you are saying in court and with the positions you are taking in legal papers being filed. If necessary, run texts or emails by your attorney before sending them to your ex to make sure there is nothing in it that will later be used against you.)
Many clients have wanted to kick themselves for not properly documenting harassments, promises, or even evidence. It is not an exaggeration to say that winnable cases have been lost because of the failure to do something as simple as saving an email or getting a promise printed and signed.
Don’t allow this to happen to you.
In Part II of “Setting the Record Straight,” I will offer three more tips for gathering evidence.