What’s Wrong with PA Voting Districts?– A Brief Introduction to Gerrymandering

Posted on by Barbara J. Shah

For those of us who live in Pennsylvania, are U. S. Citizens, and register and vote in elections, unless you are really savvy, you probably don’t know the numbers of the legislative and Congressional districts you live in, your state representative and state senator, or your Congressman or woman.  Even if you do know who these people are, it’s a safe bet you don’t know the outline of the district that person represents.  And if you’ve been around for a while, it’s also a safe bet that the size, shape, and number of these legislative districts have changed in the past 15-20 years.  Why do they change, and who is in charge of drawing these district lines?

 Let’s talk about U. S. Congressional Districts first.  About 100 years ago, although the Constitution itself doesn’t say how many Members of Congress there are supposed to be, the total number was set at 435.  There are always 2 senators from every state, so that does not change, unless a new state is admitted to the union.  The Constitution does require that all the 435 members of Congress should represent approximately the same number of people, uniformly across the country. Every 10 years, there is a census taken, and population shifts or population growth is determined.  For the most part, northern old industrial states have been losing population, while Western and Southern states have gained population.  That means that congressional seats must be “reapportioned” among the states.  After the 2000 Census, PA lost 2 representatives, and after the 2010 census, it lost 1 additional representative; these seats were shifted to states with a population growth.  PA now has 18 congressional representatives.

So, under the Constitution, it is the duty of Pennsylvania to “reapportion” the PA Congressional districts to reduce the number of Congressional districts in accordance with the census and redraw the lines.  However, the Census also illustrates shifts in population within PA.  Generally, Western PA has been losing more population than Eastern PA, so the 3 Congressional seats which have been eliminated over the past 17 years have all been from Western PA.  The U.S. Constitution is not specific as to how states reapportion or redraw their district lines, leaving it up to the states.  So, in PA our Constitution leaves it up to the state legislature.  Not surprisingly, they have become “creative” with drawing those boundary lines.  When the PA State legislature was dominated by Republicans after the 2000 Census, they created a wide-ranging and weird-shaped Congressional boundary line, for example, when they redrew the 19th Congressional district lines to pit two popular Democratic Congressmen against each other (Mascara and Murtha). Then after the 2010 Census (and Murtha’s death) they redrew the lines and put a large portion of his district into the 12th district, which was then won by a Republican Keith Ruthfuss.  Much of the rest of it was incorporated into a long, thin 18th district which is represented by Republican Tim Murphy.

The numbers of voters in the district are fairly uniform, but through “packing,” the legislators draw voting districts where, say, 90% of the voters are Democrats, and other districts where the Republican dominate, by, say, 53 or 55%.  Alternatively, they may pursue a tactic of “cracking,” that is, they split up heavily Democratic areas into smaller sections and combine each of them with rural Republican areas to dilute their voting effect.

As a result, although PA voters generally vote, say, 51% Democratic and 49% Republican (or in the reverse as in the last Presidential election), there are 5 Democrats and 13 Republicans in the PA Congressional delegation.  This is not to imply that this is only a Republican tendency – in places where Democrats dominate the state legislatures and the legislatures determine the Congressional district boundaries, they have done the same.

The term “gerrymander” (pronounced “Jerry-mander”) was introduced into the language more than 200 years ago, when this technique was used by former MA governor Elbridge Gerry to produce a district shaped like what news organizations compared to a salamander; they then began calling it a “gerrymander.” PA, having weak election and contribution disclosure laws, has been a prime example of gerrymandering for the country.  Should something be done about this?  What can be done about this?  Does it make a difference if you are a Republican or a Democrat?  More on that in the next article.

By Barbara J. Shah, Esquire

Barbara

 

Understanding the Legal Challenges to President Trump’s Executive Orders

Posted on by Barbara J. Shah

          For most Americans, news reports regarding the lawsuits filed and legal challenges made to President Trump’s executive orders are confusing. Is a President permitted to make decisions on some matters and issue an executive order without Congressional approval? If so, what kinds of matters are they, and are there any rules a President must follow when issuing executive orders?
Let’s use the example of President Trump’s executive order banning travel from 7 middle eastern countries to the U.S. which has caused so much controversy and so many court battles. The government lawyer’s position is that this order concerns a question of foreign affairs, and that this is an area that Congress has already delegated the authority for the President to make determinations regarding foreign affairs. As a result, the government lawyer argues that the U.S. courts have no authority to look behind the President’s determinations. This is strictly within the President’s authority.
At the hearing in Seattle on the lawsuit brought by the States of Washington and Minnesota against this executive order, Federal Judge James Robart stated that the executive order has to be rationally based, i.e. grounded in facts as opposed to fiction? and that he did have the power to make the determination.
Jeffrey Rosen, the President and CEO of the National Constitution Center in Philadelphia, was recently interviewed by National Public Radio, where he was asked if this was correct, whether the President was constitutionally required to issue orders which must pass Judge Robart’s “fact or fiction” test. Rosen responded that this was correct, that the U. S. Constitution requires that all laws be rational, even when they are in response to the most dramatic challenges relation to national security. He pointed to the famous (many consider infamous) case of Korematsu v. the U.S., the law which required the internment of Japanese-Americans shortly after the beginning of World War II. Even in that case, the justices of the Supreme Court were required to consider the judgment of the U. S. military that Japanese-American citizens posed a threat to the U.S. They did uphold that judgment, despite a fiery dissenting opinion by Justice Murphy that the actual “evidence” presented by the government was “made-up justifications.” In the same case Justice Robert Jackson said that for a court to sustain unconstitutional orders under the guise of assuming that they’re reasonable is like a “loaded gun” which would legitimize racial discrimination.
In the Korematsu case, it turned out, the government failed to disclose a naval intelligence report which said that Japanese-Americans posed a minimal risk which could be handled individually, so all of the facts were not presented properly to the court. Looking back in American history, going back to the blowing up of the battleship Maine in Havana Harbor to the Gulf of Tonkin incident during the Vietnam War to the nuclear weapons that Saddam Hussein was supposedly developing, the NPR interviewer asked Rosen if the court second-guessed the government, would the court in effect be taking control of U.S. foreign policy? Rosen responded that that was a legitimate concern, but the executive order must still pass some constitutional test, and the key test of constitutionality is, is there some basis for them in fact? The government is required to show facts which explain the rational basis for the order. If the Supreme Court justices concluded that there was no rational reason for President Trump to choose these seven countries to exclude travelers from, Rosen said he could imagine both liberal and conservative justices of our Supreme Court might vote to strike the order down.

It’s going to be interesting to see what happens

To Sue or Not to Sue…..That is the Question

Posted on by Barbara J. Shah

In Pennsylvania, the civil court system is the system which Pennsylvanians use to sue another person, business, or groups of persons, to get an award of money damages for wrongful actions (as opposed to the criminal court system, in which the Commonwealth brings actions against members of the public for breaking its laws). The civil litigation system is divided into three sections, the local magistrate courts, Common Pleas Court arbitration, and Common Pleas Court. Magistrate complaints are generally filed by members of the public in person, by going to the magistrate office; in most cases, both plaintiffs and defendants represent themselves at these cases. The limit of jurisdiction is for money damages of $12,000 or less. The second level, Common Pleas arbitration, is for money damages up to $25,000 (or $40,000, depending upon the type of case). Common Pleas arbitration complaints may be filed by individuals, but the rules governing the filing, answers, and hearings on these cases are much stricter and must be followed. Lawyers are more often involved in filing and trying Common Pleas Court arbitration cases. Common Pleas Court cases above the arbitration limits are almost always filed by lawyers and defended by lawyers. There is no limit to the money damages which may be sought in Common Pleas Court cases.

 

When a civil case is filed and decided at the magistrate level, if either party is dissatisfied with the outcome, they have a right to file an appeal to Common Pleas arbitration within 30 days. If the Plaintiff (the party who filed the lawsuit) is unhappy with the magistrate decision, he or she must file a complaint in the proper form at the time they file their appeal. If the dissatisfied party is the Defendant (the party who was sued in the lawsuit), when their appeal is served on the Plaintiff, the Plaintiff must file a complaint in the proper form within 20 days. Failure to file an appeal from a magistrate’s decision you as unhappy with within 30 days is an absolute bar to filing another lawsuit on the same issue at a later time. The tricky issue is when both parties have claims against each other at the magistrate’s hearing, and there are two judgments entered, one relating to each separate claim. If you are dissatisfied with how the magistrate ruled on your claim, and the opposing party files an appeal of the magistrate’s ruling on their claim, you must also appeal the magistrate’s ruling on your claim; the cases will be consolidated, but if you don’t appeal, you lose your right to make that same claim in the Common Pleas case.

 

When there is an appeal of the magistrate’s decision, the case is tried all over again in Common Pleas arbitration. The arbitration hearing is conducted in front of a panel of 3 lawyers; no judges are involved. Neither the testimony, the evidence, nor the result in the magistrate court has any effect at all on the Common Pleas court arbitration panel’s decision. In fact, you are not even allowed to mention what happened at the magistrate’s level in the Common Pleas case. The rules for the conduct of the Common Pleas case are much stricter; no hearsay testimony is permitted, and no documents may be submitted into evidence without the person who prepared the document there to testify about it. (There is an exception to bills and estimates of damage, but they MUST be submitted to the other side at least 3 weeks before the arbitration hearing.)

 

Finally, any party who is dissatisfied with their Common Pleas Court arbitration panel ruling may appeal to Common Pleas Court within 30 days and request that the case be heard by a judge or a jury. Again, if this happens, nothing that happened at the magistrate or arbitration level is relevant to the Common Pleas Court trial. It is a “de novo” (all over again) trial. After trial in Common Pleas Court, however, there are no more “de novo” trials. Anyone who is dissatisfied with a common Pleas Court judgment must file an appeal to the Superior Court, order the transcript of the hearing, and file a brief (legal argument) explaining the errors made by the court at the Common Pleas Court level which brought about a mistaken judgment. This is a very difficult burden to prove, and as a result most appeals are not granted.

 

We at Shah Law Group know that litigation is rarely the best, fastest, or most cost-efficient manner in which to resolve disputes, and we recommend that clients take the time to explore and discuss their options to in-court resolution of their disputes. We are always looking for creative solutions to client issues, to avoid litigation. When out-of-court resolution of issues cannot be accomplished, we work towards making the litigation process as cost-efficient as possible. However, our experience has taught us that the only way to achieve success in litigation is with thorough preparation; this is never cheap.

I WANT A DIVORCE! (OR DO I?)

Posted on by Barbara J. Shah

Most people have heard the old saw, “Marry in haste, repent at leisure.” Surprisingly enough, there are those who divorce in haste and repent it later. Pennsylvania is one of the last bastions of the long wait for a divorce, when one spouse resists it. In the absence of consent, the waiting period prescribed by PA law is 2 years from the date of “final separation,” which is defined by PA statute and caselaw. If both parties consent to the divorce, the waiting period is 90 days, pretty much in line with the rest of the country. When I started practicing law in the early 1980’s shortly after the passage of the PA Divorce Code of 1980, the waiting period was three years! That was reduced to 2 years by an amendment to the divorce code in 1987. There are numerous calls to reduce the 2-year waiting period, to 18 months, one year, or even 6 months, and bills to lessen the waiting period are introduced every session, but so far none of them has gained traction in PA’s bloated legislature. There is no question that the Catholic Church has had an influence on PA divorce legislation in the past; whether that will continue in the future is uncertain. However, the central part of PA is very conservative, so I wouldn’t bet that the law is going to change very soon. In fact, I hope it does not.

Why should people be forced to wait such a long time if they want to move on with their lives? The answer is elusive, but here is my point of view on the subject: People enter into marriage with the implicit and explicit understanding that this union of two people is forever; two bodies, one soul, one family unit. Many stresses occur which may cause the union to falter, but are or should these stresses be fatal to the marriage? Mind you, I am not one of those people who would have supported the continuance of PA’s fault-only divorce which existed before 1980. That led to all kinds of perversion of the law which weren’t good for anyone. However, what is wrong with a 2-year wait for a “no-fault” divorce? It is a great cooling-off period which gives the parties time to reflect and make sure that a divorce is really what they wanted. Does he or she have a hot-and-heavy relationship with another that may cool during this 2-year wait? Well, then, that relationship is not one for the ages. Well, what if your spouse is a real louse, abusive, etc.? There are several answers. First of all, just separate. Move out. If your spouse makes more money than you, file for support. If you make more money than your spouse, you have a defense to spousal support – abuse! Getting a divorce cuts you off from your spouse’s health insurance; in the past, before the ACA, that was extremely important, sometimes crucial, if you had a pre-existing condition. Second, PA still has fault divorces; if you really want a divorce and you have grounds for a fault divorce, (and a divorce makes economic sense to you), go for it! However, let me suggest that you use at least some of the 2-year “cooling off” period thoughtfully provided for PA citizens by its legislature. I won’t say that a high percentage of our cases reconcile during this period, but we’ve seen some amazing turn-arounds, some from sobriety, others from counseling, and others from the parties living apart realizing that the grass may really not be greener on the other side. Even infidelity sometimes turns out to be forgivable, under the appropriate circumstances.

Divorce may end up being the best option, but other options should at least be considered. Don’t rush into a divorce blindly in a fit of anger; it may lead to a lifetime of regret.

My Attorney Isn’t Doing What I Tell Her to Do – Isn’t She Supposed to be Working for Me?

Posted on by Barbara J. Shah

The question of how an attorney goes about representing a client is not a simple one. On the issue of loyalty, there is no question; if the attorney cannot be trusted to look out for his or her client’s best interests, that is an attorney-client relationship that should no longer continue. The attorney owes the client the duty of absolute loyalty, and if there is a question of who the attorney owes loyalty to, the attorney should step aside. This includes situations where someone else other than the client is paying the bill; the attorney can and must focus on what is good for the actual client and cannot share information with or take instructions from anyone else, without the client’s express permission.

The issue generally presents itself in a different way, that is, the client lays out a course of action that they want to be followed or a legal position they want to take, to the attorney, and the attorney disagrees with the client’s request. Is an attorney required to do whatever the client instructs them to do? The simple and easy answer to the question is “no,” because the Rules of Professional Conduct adopted by the PA Supreme Court are binding on all attorneys licensed to practice law in PA, and these rules prohibit certain actions by an attorney which are considered to be prejudicial to the system of justice. We are not permitted to (individually or through others) present perjured testimony, file lawsuits which have no justification, or intimidate witnesses, to name just a few.

But beyond that easy answer regarding not taking actions prohibited by rules of conduct, is another answer which is much more difficult, and one which distills the essence of the attorney-client relationship. What are attorneys really supposed to do for their clients? One clue can be found in the rarely-used synonym for lawyer, “counselor.”

What a lawyer should be doing for his or her client is listening closely to all aspects of the problem which brought the client to the lawyer in the first place, and then giving a reasoned analysis of that client’s situation and the options available to the client for resolving the problem.  These options must include an analysis of personal factors, including costs, which limit the options available to the client. If there are children involved, the lawyer must consider and discuss with the client the effect on the children of the exercise of each option available to the client. It means that the lawyer must have an extensive “toolbox.” There is no one-size-fits-all solution to every problem. Each client situation or problem has its own unique issues.

Then the lawyer must counsel the client on his or her recommendations for solutions of the client’s problem. Most people have heard the old saying, “a good lawyer knows the law; a great lawyer knows the judge.” I finally came to peace with that saying; for years I thought it meant that a lawyer should develop some sort of “buddy” relationship with a judge to seek to influence his or her decisions because of their personal relationship, and I thought it was a repugnant idea. However, I finally came to understand what the saying means. It doesn’t mean that there should be a personal relationship between the lawyer and the judge; it means that the lawyer needs to take time to understand how the judge thinks about a particular kind of case by being attentive in that judge’s courtroom, talking to the lawyer’s colleagues, and studying the judge’s decisions, to be able to predict, with some degree of certainty, how a judge will rule on a particular type of case or in a particular situation.

When counseling a client, if rulings of the judge of the case (or the general attitude of the local bench on a particular kind of case) are known to the lawyer, the lawyer must make it clear to the client that certain types of actions will not be tolerated by the court, or that certain actions are much more likely to achieve the result the client desires to attain. No lawyer should simply be a “mouthpiece” for the client without undertaking such an analysis of the potential outcomes for a course of action. If in the lawyer’s learned analysis a course of action the client is proposing would not achieve the desired result, it is the lawyer’s job to say “No.”

If the client doesn’t like what the lawyer says, he or she can move on and look for a lawyer who tells them what they want to hear. However, in the end the results will most likely leave the client unhappy. Lawyers, have courage! Clients, be smart! There is a difference between lawyers, and the truth is, if the lawyer is telling the client something they don’t want to hear, then that is very likely a great lawyer.

Staying Together for the Sake of the Kids is Usually a Terrible Idea

Posted on by Barbara J. Shah

No two families are alike, and everyone’s marriage and marital problems are unique, to a point.  However, after many years of divorce practice, there are some things that have become clear.  First of all, for the purposes of this article, I am not going to discuss religious beliefs and practices.   I can safely assume that no one’s religion or religious practices countenances the torture of children.  If yours does, stop reading; this article is not for you.

People who carry on marital battles in an “intact household,” that is, where no one moves out and the parties remain residing in the same residence while fighting with each other (or maintaining a stony silence), seem to be to be like people who are beating their heads against the wall.  Why are they doing this?  If they are just two adults living together, some just work it out and go and come like ships in the night.  Everyone has their own reason, and if it is not emotionally exhausting to carry on such a lifestyle, well, who am I to stop them?  Except that how can they be truly happy?  How can they carry on socially, have friends over for drinks or dinner, etc?  How can they develop a new love life?  Why are they hanging on to this empty husk of a marriage?

The real rub comes in when there are children of any age in the household.  What is the purpose of family life?  To form an economic and emotional unit where each supports the other and the children learn love (and independence, hopefully) under the loving guidance of their parents (or parent, in the case of a single-parent family)?  Well, that is the plan.  The children observe and learn how to behave in a family, and they are able to take risks, because they are secure in the love and guidance of their parents.  If they fail at an enterprise, they have the confidence that they will still be loved at home, and most parents will encourage them to keep trying until they succeed.

What happens when children live in a household where their parents are at war?  At the very top of the terrible scale, if they observe domestic violence perpetrated on one parent by the other, it will form a permanent impression on them.  There is plenty of solid research available which tracks the effect on children’s later lives of witnessing parent-on-parent violence, and it is pretty depressing.  A parent who stays with an abusive parent is doing no favor at all to the children.  I realize that it is not easy to separate from a violent parent, but ignoring the effect on the children of witnessing parent-on-parent violence is not a wise option either.

Although domestic violence is a serious and under-reported marital problem, living in an unhappy household where there is no actual physical violence is not very healthy for children either. Let’s assume this is a household where the parents argue regularly, whether over money or any other major issue.  First of all, those who believe that their children do not know they are fighting are kidding themselves. Children ALWAYS know when their parents are fighting.  We know that even in the most stable of marriages parents fight.  The difference is:  do they make up?  Do they apologize to each other?  Do they figure out ways to work out the issue their fight was about?  When children see their parents working out their differences in a constructive way, it is an important learning experience for them. They learn how to cope with different ideas and opinions of their partners and work out their differences in a civilized manner.

The problem in a household where the parents are always at war or always angry with each other is that children don’t observe a healthy pattern of behavior to pattern themselves after. Studies clearly reveal that these children are at risk, and that they will experience problems in forming healthy adult relationships later in life.  So, if you are one of those parents who is “staying together for the sake of the children” with an abusive/angry spouse, but in doing so are exposing them to ongoing marital strife, think again.

Father’s Day: Some advice for separated or divorced dads (and moms) from a child custody lawyer

Posted on by Barbara J. Shah

Not every father has a happy Father’s Day.  Often dads who are divorced or separated from their children have a sad or lonely Father’s Day.  This need not be.  For the purposes of this article, I’m going to assume that the Dads I’m referring to are not drunks, mentally ill, or abusive brutes, that they are just regular guys, not perfect but that they love their children and want to spend time with them.  If the dad reading this article falls into those “bad” categories, I advise counseling and soul-searching; you will never be able to form a normal relationship with your children if they are afraid of you.

A good relationship can be maintained with children of divorce and separation, but it’s not easy.  It’s important for both Mom and Dad to recognize the role the other parent has in the life of a child.  We know that prior to separation, most couples have assumed some sort of pattern, often the traditional pattern that Dad works full-time (sometimes 2 jobs) and Mom works part-time (or not at all) and manages the household and child-rearing.  Sometimes it’s the reverse.  Without reference to the reason for the separation, we expect that the parties’ prior pattern of family responsibilities is going to change when they separate.  If Dad (or Mom) has had little responsibility for child-rearing while the parties were together, we expect that that parent will want to step and take more responsibility for arranging the children’s lives.  Since the parties will be not living together, it means that both parents will need to accept changes in routine, that is, that there will be periods when the children are not with them at all, that they will be in the other parent’s custody, and the other parent will need to step up and work out bedtimes, clothing, schoolwork, and discipline for the children.  Often the parent who will be seeing the children less due to this change has a hard time accepting it, and the person who will be having more time with the children feels overwhelmed by the new responsibilities.  These feelings are normal; they can be alleviated by the parents by learning to work together or cooperate.  What’s that you say?? If we could cooperate we’d still be together!!!  Well, it’s time to grow up and be an adult.  For the “abandoned” parent (who is seeing the kids less), get a hobby.  Learn to enjoy time away from the children.  Despite what you may think, your children are not your life.  If they are, you are too involved in their lives.  Accept that things will be different at the other parent’s home, and assume that he or she loves them too.  Children do not have to have mirror-image lives in the other parent’s home.  So long as they are safe and appropriately nourished and rested, you should not try to control what happens when they are with the other parent. Don’t turn your child into a “buddy” and unload your troubles on them.  If you need to talk to someone about your angry feelings about the other parent, talk to your mother or get a dog.  Leave the children out of it.

For the parent who is having more time with the children, it’s time to grow up and be an adult too.  Don’t be the “Disneyland” parent.  Make sure that the children have regular bedtimes and a routine at your house too.  Make sure they eat appropriate meals.  Speak respectfully about the other parent, even if the children tell you that the other parent is bashing you to the children.  Just smile sadly and say, “That must make you feel sad,” when you hear a report such as that, and dismiss it.  Resist the impulse to badmouth the other parent, even if you believe they are badmouthing you.  Think of the children’s feelings and let your home be the place where they feel safe and comfortable, where they don’t hear negative talk about the other parent.

Cooperation between parents is the best present you can give your children.  You don’t have to like the other parent to respect them as a parent, and when you start putting the children’s feeling ahead of yours, you will realize that that is what they need, to grow up in an atmosphere of acceptance and understanding, one where they will not be able to manipulate either parent, because the parents communicate with each other.

All this is hard to do, I understand.  However, co-parenting counseling is available almost everywhere.  Take a deep breath and vow to be the parent who cooperates; avoid fighting.  Avoid calling the police.  Remember, each child knows that they are made up of half of each parent, so if one parent is really bad, part of them is really bad too.  Enjoy your time with your children.  Happy Father’s Day.

Should I Make Child Support Payments Directly If No Wage Attachment Has Been Ordered?

Posted on by Barbara J. Shah

By Kristen Anders Bojarski

Last week I wrote about what to do when a child support payor (obligor) finds himself (we’ll use the masculine pronoun for now, but you female support obligors, this applies to you too!) subject to contempt proceedings for failing to pay child support due to an unexpected loss of income, and how to avoid this by filing a petition for modification.  But what can you do to avoid even the possibility of being swept into the nightmare that is contempt proceedings?  The answer is obvious: pay your child support as ordered.  Yeah, you think, easy for you to say, but what if I can’t afford it?

In some cases when a payor has lost his job, he has some savings to fall back on or friends or family willing to help out financially until he gets back on his feet.  If you are one of these people, you should still immediately file for modification of your child support order, but you should continue to pay the full support amount as ordered until your support modification hearing.  If you do that, you will avoid contempt charges being filed against you, and if the order is modified, and through a temporary reduction in your obligation, you will likely eventually get back any money you might have overpaid.

Child support is normally wage attached, that is, your employer deducts it right out of your paycheck and sends it to Pennsylvania State Collection and Disbursement Unit, or PASCDU, who then distributes it to the support obligee. When you have no employer, the responsibility is yours. (However, if you qualify for unemployment benefits, the wage attachment is normally transferred to that benefit).

Sometimes support obigors decide to pay the obligee directly by cash or check.  BAD IDEA!  DO NOT DO THIS!  Not only will you not get credit against your support obligation for the support you paid directly, Domestic Relations will likely begin contempt proceedings against you if their system shows that you are behind more than 30 days.  You MUST send ALL child support payments, even partial payments, to PASCDU.

I am aware of a recent case in which the obligor, for several reasons which seemed logical, paid his child support directly to the obligee; the modification hearing did not take place for several months.  At the hearing, the obligee denied receiving some of the payments and/or said that certain payments were not actually for support. As a result, after the hearing, the obligor’s wages were attached and arrears were set for many of those months he made direct payments to the obligee.  Ultimately, after several months and spending a lot of money on attorney fees and expenses for copies of money orders, most of the payments were credited.  (Hint:  If the obligee had been receiving welfare, the obligor would have gotten NO CREDIT FOR HIS PAYMENTS AT ALL, as the support payments would have been owed to welfare.)

So, if your child support obligation is not wage attached, you must send your payments directly to PASCDU, not to the obligor.  Below is the direct link to the PASCDU website with instructions on how to make payments and where to send them:

https://www.humanservices.state.pa.us/csws/CSWS_controller.aspx?pageId=Member/payor_payment_options.ascx

The Key to Success in any Divorce is Preparation

Posted on by Barbara J. Shah

If worst comes to worst and you cannot settle your case with what seems like a reasonable compromise, your lawyer should be calling and scheduling a meeting with you well before trial to prepare for the trial itself.  First of all, for most cases I am scheduled to try, a pretrial statement must be filed.   When the trial was originally scheduled, it is likely that trial judge entered what is called a “pretrial order” setting forth discovery deadlines and due dates for the parties’ pretrial statements to be filed with the judge or the court clerk.  Some jurisdictions have rules that set forth the due dates and contents of pretrial statements, so there are not individual orders for each case.  However, before the pretrial statement can be filed, the lawyer and the client should meet to discuss strategy and the identities of witnesses that they may want to call to testify, and to identify the documents which will need to be offered into evidence, to prove their case at the trial.

There are numerous rules that govern what evidence can be offered at trial; evidence cannot be “hearsay,” that is, the person who offers testimony or authenticates documents that they want to put into evidence must have FIRST HAND KNOWLEDGE of the events or issues they want to testify about.  With limited exceptions, witnesses will not be allowed to testify to anything someone told them. I wish I had a dollar for every time a client offered to bring a letter from a proposed witness, (notarized or not), that lays out that person’s testimony.  Sorry, hearsay.  Not permitted.  Testimony must be given in person.

This is probably an appropriate time to explain what notarization of a document means.  Most people seem to think that if a document is notarized, that it has some official recognition as being true, or accurate.  Actually, all that a notary seal means is that the notary public is guaranteeing that the person whose name is signed to the document is that actual person; normally the notary is going to require that the person whose signature they are notarizing SIGN THE DOCUMENT IN FRONT OF THEM and that they produce I.D. to prove who they are.  Don’t bring a signed document to the notary and ask them to notarize it; it is against the law.

Unfortunately many lawyers don’t involve the client in the trial preparation process; if they did, the client would have a better understanding of the strengths and weaknesses of his or her case, and what evidence or witnesses the lawyer intends to call at trial to prove their case, or in the event they are the defendants in the case, what evidence they can put on to disprove the plaintiff’s case.  I have found that involving the client in the pretrial process is extremely valuable,   both to me and to the client, in preparing for trial.

Before the trial, the lawyer should plan to meet with everyone whom they intend to call as a witness in their case.  If they have expert witnesses, such as a real estate appraiser, a physician, pension expert, or whatever, it is unlikely that they will meet to review their testimony personally.  However, most expert witnesses are used to testifying, and usually the lawyer can go over their testimony with them by telephone.   In the case of lay witnesses, I have an ironclad rule.  If they cannot meet with me to go over their testimony so that I can know what questions I should be asking them and also to  prepare them for cross-examination by opposing counsel, I will not put them on the witness stand.  That doesn’t mean that I have to meet with everyone individually; many times I hold group witness preparation sessions with numbers of witnesses.  However, the key is preparation.  If I don’t know exactly what the witness will be testifying about, I would be foolish to call them to testify, and if they are not prepared for tough cross-examination by opposing counsel, all of their good intentions can come to naught.

In trials, as in most things in life, proper preparation is required to reach the desired result.  Thorough trial preparation doesn’t always mean you are going to win your case, but it sure as heck makes it more likely.  And frankly, it often intimidates the opposing counsel, who may not have his or her case as well prepared.  Many times I have settled cases on terms satisfactory to my client, on the way into the courtroom when my client and I are better prepared for trial, and opposing counsel is aware of the disparity in preparedness.

Why is My Divorce Lawyer So Friendly With my Ex’s Lawyer?

Posted on by Barbara J. Shah

 

Sometimes it is hard for clients to understand when I joke with or make small talk with opposing counsel.    Clients don’t really want to be in court anyway, and they are usually very stressed just to be there.  Something very important to them is in the process of being settled or litigated, and they may be filled with dread.  The last thing they want to do is laugh or joke, and often they see their lawyer doing just that, and often with the hated opposing counsel.

First of all, it seems to be pretty universal that since clients are in a battle with a hated enemy – the person on the other side of their case- they expect me to hate the opposing party too.  However, it is important that I do not adopt my client’s attitude towards their adversary.  If I did, it would rob me of my ability to make an independent analysis of the case.  This is what they trained us to do in law school.  If we can’t maintain our independence and independent thought about a case, we are of little value to our client.

In order to serve my clients’ actual best interests, I can’t get “invested” in their views of their case.  I have to coldly analyze it, coldly analyze the opposing party’s case, and make a learned prediction of the likely range of outcomes.   This gives me the ability of determine a range of settlement options and make recommendations to my client which are reasonable, given the situation and set of facts which look provable to me.  There are many factors to analyze, including my client’s ability to testify, negative factors which may affect the case, the skill of opposing counsel, and what I know about a judge’s predilections from past experience.  This is why I get paid the “big bucks.”  My analysis pulls no punches and takes no prisoners.  I have to look at everything with a cold, independent eye.   Would you prefer a lawyer who gives you an honest analysis of your chances or one who tells you what you want to hear?  If you choose the latter, might as well stop reading this article.

In most jurisdictions, there is a relatively small circle of attorneys who are experienced in a particular area of law.  Pennsylvania does not allow lawyers to advertise “specialties” in law; we are all general practitioners in the eyes of the PA Supreme Court.  However, most lawyers, especially those in or near larger urban areas, have developed an area of concentration within the law.  Hopefully if your case is in such an urban area, you have been referred to a lawyer who mainly practices in the area of law your case relates to.  In any case, these lawyers get to know each other pretty well.  We belong to the same organizations, attend court on a regular basis, and attend meetings (and parties) which pretty much this same group of lawyers also do.

We have usually developed healthy professional relationships with these lawyers we see on a regular basis.  We may know about their family, health issues, and other information.  For the most part, they are just like us, struggling to maintain their professional independence while trying to advance their client’s interests, observing the rules of ethics which govern our profession, and making a living.  When you consider this, wouldn’t it be odd if we didn’t act cordially to one another?  It’s true that during court appearances, some attorneys act like bullies or make disparaging remarks about the opposing party or their case, but  generally this is just part of the “persona” that they adopt in public.  Sometimes they do it to impress their clients who are nearby and don’t understand that lawyers really don’t hate each other, or that they don’t really hate the opposing party. (Unfortunately, sometimes lawyers have lost their independence from a case, but that’s another story.)

So as a client you should feel good if your lawyer banters with opposing counsel in the hallway or outside of court; it is a good sign that their independence is intact, and that they are not uptight or worried about your case.  Smile and trust your lawyer!