Coaching for Court and Why You Shouldn’t Throw in the Towel: Answering Listener Questions with NLG Family Law Attorney Paul Phipps
Seth is still away so we’re going to be inviting various people from NLG Family Law to sit in with Pete and take on some other listener questions about divorce. In today’s episode, attorney Paul Phipps joins Pete to answer a few questions. The questions they take on today:
I just want the quickest divorce possible and for my ex to just keep everything, why is this not a good idea? Don’t lawyers just want to drag out divorce cases as long as possible to make more money?
Coaching for court: is it all a performance?
Great information for those of you thinking about and going through divorce. Make sure you tune in to this information-packed episode.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster, a divorce Podcast about saving your relationships from TruStory FM. Today, we're continuing our summer of fun.
Seth Nelson is off getting married and he's playing out in the world and we have another able stand-in for Seth. You may know him from such hits as "Divorce in the Military" earlier on this podcast. It's Paul Phipps.
Hello, Paul.
Paul Phipps:
Hey, how are you? Glad to be back.
Pete Wright:
Doing so, so well. Thank you for being here. We come bearing questions for you and they may feel a little bit disjointed. I'm hoping we can tie them together. These are questions that have come up to the show and you are the most capable person we have right now to answer them. And so I'm just going to dig in. Are you ready?
Paul Phipps:
I'm ready, Pete. Go for it.
Pete Wright:
All right. "I just want the quickest divorce possible and I want for my ex to just keep everything. Why is this not a good idea?" And there's kind of a parenthetical here. "Don't lawyers just want to drag out divorce cases as long as possible to make more money?"
Paul Phipps:
Wow. Those are two interesting concepts. I think they may be intertwined a little bit. Let's go with the first one.
Pete Wright:
Right, there's sort of a Venn diagram that's not quite a circle.
Paul Phipps:
Yeah, I was thinking of the bell curve or something more of that effect. But as far as giving, if you're in the midst of a divorce, to just acquiescing, give the other party everything, I assume almost everybody works pretty hard for their money and even if they're not working, they're contributing and working hard in the home and to just say, "Look, I'm throwing my hands up. I just want to throw the towel in because I don't want to deal with this," you're really giving up all your hard-earned, the fruits of your labor, whether it being a homemaker or working on a job. And I just can't imagine that someone would go to a normal place where they're doing some sort of financial transaction and say, "You know what? Keep that extra $10,000. I don't really need it. I don't care. I just want to be done with the transaction."
So in general, I don't think it makes sense. I can understand why people might feel that way on an emotional level, right?
Pete Wright:
Right. Doesn't that get to the emotional weight and the exhaustion of the divorce process, particularly if it's contentious? You just want to give up stuff so that you can make it go away.
Paul Phipps:
Yeah, absolutely. Divorce is, it can be an emotionally draining process, can be financially draining, and some people get worn down.
I think the message is just to stay strong through the divorce. It's going to be over, hopefully sooner rather than later. Some take a little more time than others, but you have to stay the course. To give up all that you've worked so hard for and things that you are entitled to, if you're making that an emotionally based decision, you have to step back. I always encourage clients step back, think about this logically.
Pete Wright:
Well, that was my next question. How do you, as a divorce attorney, help to establish that as a norm? Establish that, just step back and relax. What are you going to say to me when I come to you and say, "Paul, I just want out"?
Paul Phipps:
Well, Pete, I can tell you to relax all day long but you're not going to relax.
Pete Wright:
So we've met, right?
Paul Phipps:
I choose my words carefully, but the long and the short of it is I try to explain the process to people so people can have their expectations managed. Divorce, in and of itself, 95% of the time, it's an emotional process. You're separating from someone who you loved at some point in time, maybe still do love. It's emotional by nature, so it's hard to just take that emotion out of it.
I try to point people to the logical side so they can balance that with their feelings and look at what you've put into this marriage. Look at all that you've done. Look at what you as a couple have acquired and why would you walk away from that? Tell me why. Help me understand why you would want to walk away from that. And I turn it back to the client.
And I think for people listening to this podcast, ask that question of themself, why would I want to walk away from it? Let me list the reasons. And I think the reasons would be a very, very short list. And then if you really rationalize it, they may come to a different conclusion, hopefully.
Pete Wright:
Well, and also probably based on the emotional weight of a short time in the long arc of history. We're feeling this strongly right now because of the last two, five, 10 years of relationship that we've been struggling with. But we're also, we have a lot of life left before us.
Paul Phipps:
Yeah, absolutely. Absolutely. And there's a lot invested in relationships and you get to this flashpoint and emotions get super high all at once. It's overwhelming for a lot of people and that's no knock on anybody. It's an emotional process and overwhelming is a good description for what a lot of people feel.
Pete Wright:
So the second part of this question is a bit of a jab at your field, man. And I'm glad that you're here because I also happen to know that people adore you, Paul, and so let's talk about how you handle the money-grubbing lawyer angle of this question. "Don't lawyers just want to drag out divorce cases as long as possible to make more money?"
Paul Phipps:
First, I want to get the names of all the people that you polled to come up with the assertion that people adore me. It must have been a population of about four. So three out of the four adore me, it's like three out of four dentists approve this. Right?
And I'm going to be completely transparent here. There are lawyers out there that will extend cases and they'll make cases go on longer than they need to go because people get paid hourly. I don't do that. The people that practice at my firm don't do that. We pride ourselves on doing the best job we can for the client. If that means solving a case in just a couple of hours and giving people money back, that's great. The goal is to get people what they are entitled to and to let them move on with their lives.
The second part I think, Pete, you asked was how do I handle money-grubbing lawyers?
Pete Wright:
Or the stereotype of money-grubbing lawyers, if you have a client come to you and say this, "I think you're just dragging out my case so you can make more money on me because of billable hours."
Paul Phipps:
So, it's twofold. If I encounter another attorney that I feel like is extending the process, and I'm not going to besmirch someone and say they're doing it intentionally, it could be because maybe they're not aware of different tools or the different methods or maybe they've missed parts of the process, but one, I'll try to educate the other attorney on the process. I'll also try to bring the facts forth that suggest that maybe we don't need this step or maybe things should be moving a bit more quickly.
From the client side, I just want the client to understand what the process is, and if the other attorney is filing something, I do my best to explain to the client the what and the why. And often, the client looks at me and says, "Why would they do that? That makes no sense." And then I have to agree and we do what we can to mitigate and to manage waste by the other side if, in fact, we encounter that.
Pete Wright:
Because this was a two-part question, I feel like I'm remiss to move on to what I think is the bigger question of our session today and not ask the flip side. How do you handle clients and coach them toward being maybe a little bit more flexible when they come to you and they don't want to give up anything, that they're drawing out the case themselves?
Paul Phipps:
And that's a really good point. So I think when people hire an attorney, I tell clients when they come in for consultations, you really have to be comfortable with your legal counsel. You have to have a good feeling, do some research, learn about them. You're interviewing them, you're trusting this person with a very crucial and important part, a portion of your life.
I try to educate clients on the law, based on my experience, what I think a court will do. And then if a client says, "Well, I want X," and people listening can't see this, but Y is my right hand and X is my left hand and there's a big gap between there, we have to have a discussion and explain, "Look, this is likely what's going to happen. What you're asking for does not comport with what the law supports."
That's often a difficult conversation and people's perception is their reality, but I do my best to educate them because the worst thing I can do as a lawyer is to make someone a promise that I know really isn't realistic. So we want to advocate and get everything that someone's entitled to, but if the law doesn't support what someone's asking for, we have to have that conversation because the client in the end is much happier knowing what the likelihood of the end result is going to be.
Pete Wright:
Well, we were talking about this sort of Venn diagram. It seems like talking, and you've mentioned what the law supports on one hand and basic human nature on the other hand, the human need when we're feeling out of control to regain control, when we're feeling in the dark to reclaim understanding, all of those things seem to, more often than not, fly in the face of what the law supports when you're in the storm of a divorce.
Paul Phipps:
And often, again going back to someone's perception is their reality, Pete, what someone believes or has been led to believe as a societal norm or something that their friends have told them or family has experienced, that's reality to them. Often, it doesn't align with what the law is. The law doesn't always make common sense. It doesn't always make sense to somebody based on their history and what they know.
And I often tell people, look, if you're a mechanic, I would fail miserably at your job because I don't know the first thing about that. So it's no knock on somebody not to know about the law, but once they get educated, my hope is that they can understand and their perception will adjust a little bit and they can understand the whys and what would be reasonable to ask for.
One other thing, Pete, I think that it's also, we started with the emotion in the beginning. This is emotional. Sometimes we're talking about a jilted lover or someone who's been scorned. And the natural, a lot of human reaction is revenge. They want to take exact revenge. The law is not a set up to exact revenge against somebody, and that's a very natural feeling. If someone hurts you, especially someone you love, you want to get back at them. That's a primal urge and the law does not account for getting back at somebody in divorce court. There's no punishment in divorce court for someone saying, "I don't want to be married to you anymore," and I think that's often counterintuitive to our emotional feelings as a human being. Right?
Pete Wright:
Yeah. I stand unsated at the end of a divorce trial. Nobody got a comeuppance. Where is the comeuppance?
Paul Phipps:
Yeah, where's my pound of flesh?
Pete Wright:
Yes, right.
Paul Phipps:
He or she should be hurting and crying like I was when they did this to me, and that's not what the court is for. The court is to make things equitable and help you move on with your life. As far as punishment, that's just not what divorce court's for. That's what criminal court's for.
Pete Wright:
Well, that is a fantastic segue I think to the next topic for us on the docket today, and that is about getting ready for court.
The specific question was, "Okay, coaching for court, is this all a performance?" My hunch is there's more to it than that, and recognizing that not all cases go "to court." There isn't a Perry Mason ending at the end of divorce cases in large part. I'd like you to walk through as if you're preparing me for court. What are the things I need to consider when I'm going to court and you're representing me? Can you tell us a story that gets me into that headspace?
Paul Phipps:
Yeah, so I wouldn't call it coaching. I'd call it preparing.
So first and foremost, I tell my clients, "You have to tell the truth." So you're going to court, you're under oath, you're swearing that you're going to tell the truth and you have to tell the truth. And quite frankly, it's not really that difficult to tell the truth. If you are a storyteller and you want to make things up, that becomes more difficult because you have to remember the lies and it becomes that spiderweb of lies and you can get confused and tripped up. And the attorney who is representing the opposing party is certainly going to take advantage of any liberties someone may take with the truth.
So I tell my clients, first and foremost, "Let's talk about the truth. I want you to be honest. I want you to tell your story."
The second thing that is super important, and I think this, if I could leave people listening with one thing, if they're going to testify in court, answer the questions and get to the topic and the point that your attorneys ask you to get to. Often people have really good things to say, but they talk about a whole bunch of other things that are not related to it and that gets lost. And if I'm getting lost by it, the judge may get lost by it, and then you've lost the opportunity because you've shared a very crucial part or piece of information that may align with the law and support your case, but it got lost in a whole bunch of other stuff that you didn't need to say.
That's why preparation is really, really important. If you're working with an attorney and you have to go to court, you should at least have a brief conversation in advance about what the expectation is, what the topics you're going to be talking about, and if time permits, even do a dry run. So the attorney can tell you, "Hey, that's a little bit off-base, stay on topic. We want to be focused and get the right message to the judge."
Pete Wright:
I feel like these two points, the awareness of how easy it is to tell the truth and the awareness of getting to the point, they kind of go hand in hand with addressing this concern that truth, for a lot of people, is sort of abused by subjectivity, that our memories are fallible and what we may believe is the truth may not be the truth. I guess that's what you're talking about when you get toward preparation, like figuring really, by the time you get to court, you should all have a shared understanding of what the truth was?
Paul Phipps:
Yes. So all my clients and I, I strive for us to be 100% lockstep, in step, and in sync about what the truth is. I want to know the answers to the question before I ask them, and that way, I can craft what questions to ask, comport them with the law, and get the best outcome for my clients.
As far as fallible memories, I have a fallible memory all the time, especially with my wife. She points that out consistently. But I think it's important for preparation because if you go into court and you say something and it's off-base or it's incorrect, there's a big word in court called credibility. Even if it's an honest mistake, if you haven't prepped and you said something that maybe is not consistent with a document that's been submitted or with something else that you've said in prior testimony, your credibility can take a big hit.
And in family law, the judge is the trier of fact. So if the judge finds my client not to be credible, that's a big loss. That means the judge doesn't necessarily believe what my client is saying.
Pete Wright:
But Paul, I tell you, I'm coming to you with some facts of the case that don't make me look great. How can we possibly have a conversation when I'm going to doom myself in court?
Paul Phipps:
There's an old adage in the legal field that we don't build the plane; we just fly it. So you come to me with a plane, it's made already. If you've got a faulty engine, it's my job to do my best to mitigate that faulty engine. So I need to know your bad facts, I need to know your good facts, and I will do what I can to either rehabilitate the bad facts, there are actions people can take, there are things people can do to change, to explain, but if we don't know about those and we don't address them, and they come out in court later on, wow, go back to credibility. The judge is going to look and say, "Whoa, Mr. Phipps, you and your client, it's funny you didn't mention this." So it's very, very important.
I think it's almost more important to know the bad facts or maybe not the most favorable ones, so Pete, we can help you stay out of hot water with the judge and we can mitigate it.
Pete Wright:
Yeah, well, and that's what I'm getting at. I feel like, as somebody who is going to court and not an attorney, coming to terms with the fact that all facts are the facts that need to come out, all of the facts, good facts, bad facts, whatever color they may paint me, I need to have them out on the table or else you don't know what you're working with. And I imagine that's a thing that, when you get surprised like that, that's a thing you're going to have words with your client about.
Paul Phipps:
Yeah. And let me just qualify that because I don't want anyone listening to this to run into court and say, "I did all these bad things. This is all the bad stuff I did." You need to go talk to your attorney and all the bad facts need to be explained to your attorney.
Pete Wright:
To your attorney, yes. Yeah, right.
Paul Phipps:
And then the attorney decides what's relevant because there can be, again, with perception, you may think, Pete, that you spit on the sidewalk last week, it was super offensive and it's very relevant to the court case. But you're going to tell that to me, and I'm going to say, "Pete, you can spit on the sidewalk 10 times a day. It doesn't matter. Not going to impact your case."
So that's why it's important to talk to your attorney and let them discern what's important, what needs to be mitigated, if any steps need to be to correct the behaviors. So I think preparation is really important, and if you have an attorney that's not preparing with you, I think reach out to them and say, "Hey, we need to prepare. I don't want to walk into court flying blind."
Pete Wright:
Yeah, right. How do I assess my relationship with the judge? Do I get to have a relationship with a judge? Are they going to talk to me? What are the kinds of things they're going to ask me?
Paul Phipps:
Every judge is different. So judges are human beings, they're human beings just like you and I, just like every other person walking the face of the earth. So each judge is different, and again, if you have an experienced attorney, an experienced attorney has been in front of many of the judges. I certainly prepare my clients for the type of judge we're going to hear. Some judges are a little more aggressive, and curt, some really want to hear more facts. So I tailor our presentation to the type of judge that we have.
In general, I tell clients, when you go to court, you dress as if, I almost say going to a funeral. I used to say if you're going to a family dinner, but sometimes people would show up in a questionable outfits so I say look like you're going to church, you're going to a funeral, something like that. Look presentable. Make your face look like you cared today when you got out of bed. You're going for an important thing and the person sitting up at the front is making the decision. Show him or her that you are taking this seriously, be respectful, don't interrupt, don't speak when not spoken to. And just if you could follow all the rules you learned in kindergarten, I think that'll go a long way with the judge.
Pete Wright:
Let's say I get that. I know how to present myself, but I get to court, and Paul, I'm terrified. I'm shaking like a leaf. I just can't get a handle on my own anxiety.
Paul Phipps:
So the anxiety, and we're really beating this dead horse as far as preparation, then you're going to have to do some run throughs. Run through with your attorney, go through the questions, ask your attorney. A good attorney will also give you the questions that he or she anticipates from the opposing attorney. Those are going to be more difficult than what I ask you. You're going to know what I'm going to ask you, Pete. I can anticipate what the opposing party is going to ask you, but you should be prepared for both.
And as far as anxiety, I think if you run through it, you do a couple test runs, I think that gives most people a better comfort level. I'm not going to tell you going to court for the first time or any time, your anxiety is just going to vanish. The judge is up there with the robe and they're staring at you. And often, they try to remain expressionless because they're a non-biased party and they have to play that role. It can be intimidating. I think preparation and if you need to do five walkthroughs, do five walkthroughs.
Pete Wright:
Apart from your need to, say, put me on the stand, what should I expect in terms of my level of participation in court?
Paul Phipps:
As far as litigants' participation in court, it really is just being prepared to testify. When my client is not testifying, I always give them a very big, thick legal pad with a pen and paper. The courts do not appreciate me talking to my client or my client talking to me during the presentation of the other attorney or of the judge, so I instruct the client to write me notes, and I'll write you notes back.
The client should pay attention if there's a witness on the stand and that witness says something that is completely untrue or doesn't make any sense at all. I tell my clients in advance, "Write that down for me. Write it." Because guess what? I get a chance to cross-examine that person. The client has lived all these facts, so the client is the person that is best positioned to provide those finite details. Without living that person's life, there's no way I can know every possible thing. So pay attention, write notes to your attorney about things that are going on, and again, remain engaged so that the judge sees this person's a serious person, they're engaged, they're here, and they're serious about this.
Pete Wright:
The pandemic brought about a brave new world of court and I'm curious how all of the rules of presentation and "performance" apply for online court. You're going to Zoom.
Paul Phipps:
So online court, we use Zoom, just like you and I are using right now, Pete. It's tricky. It's tricky. I think you have to be more patient on Zoom. I tell my clients to give a one or two-second buffer before they answer a question to make sure that it came through, to make sure there's no objections because there sometimes can be a lag. You still have to dress as if you were in court. Just because you are not in court and you're on Zoom, you can't sit in your pajamas on your bed and take the hearing there just as if you're in court.
The other tricky part, which I, again, prepare people, if you have kids at home, if you have family members, if you have pets, you got to find a place that's quiet. This is a court proceeding. You can't have a dog busting in barking. You can't have a five-year-old coming in screaming. You really need to find a place where it's secure so other people can't hear it, quiet, and this seems like it should go unspoken, but where you have enough power on your phone, tablet, or computer so it does not shut off in the middle of the Zoom hearing.
Pete Wright:
Oh. So you are saying that as if that's happened for you. That's a regular thing?
Paul Phipps:
I wouldn't say regular, but it has happened.
Pete Wright:
Regular enough.
Paul Phipps:
It's happened enough that I'm mentioning it to you, Pete, so yes.
Pete Wright:
Yeah, right.
Paul Phipps:
"Hold on a second. I've got to log off for just two minutes. I got to get a new... I don't know where my charger is and I only have 2% battery."
Pete Wright:
Oh my goodness.
Paul Phipps:
Yeah, not very impressive to the court when your client has to vanish for 10 minutes to recharge their computer or find a plug.
Pete Wright:
Yeah. I almost wonder, it sounds like there's just even more to think about when you're doing this remotely, that not only do you have to make your appearance as if you care, but also you're set. You need to probably have a location that looks like the case you're trying to make, you and your attorney are trying to make.
Paul Phipps:
Yes, and just you said something else, other things to prepare. You have a name on your Zoom box, so do I. I'm a grandfather. If my screen name is "Big Papa," that is not appropriate for court. Make your name your name. Don't put your nickname or what your boyfriend or girlfriend calls you or what your childhood nickname was. It may be cute and funny, but again, not appropriate from court. I'm not going to call you by a pet name in court.
And then finally, we have exhibits. So if you're the client, I make sure my client's prepared. Have all the exhibits with you, in front of you, they're marked, they're ready. We can't, "Oh, I got to go to the other room."
So you're right, Pete. Tons of extra preparation with this COVID-born internet court.
Pete Wright:
Yeah. Sure, sure. And the way you handle exhibits, you scan them and share them? Is it screen shared? What should I be aware of?
Paul Phipps:
Again, all judges are different. All courtrooms are different. A lot of the judges require hard copies to be delivered to the court and they don't want exhibits shared on the screen. I always make sure my clients have a hard copy book with them wherever they're going to take the hearing. Optimally, I like my clients to be sitting in my office with me during the hearing. That way, I can control the situation. Not that they're not capable, but I'm the lawyer, it gives them some solace to know that I've prepared everything. We've got everything here. They just need to show up. If they can't, I give them a hard copy. They have it at their house. I go over all the things I just talked to you about and we go from there.
Some judges will say, "I don't want paper." We'll put it on the screen. So it runs the gambit, but your lawyer has to be adept at navigating which judges require what and accommodating.
Pete Wright:
That's fascinating, Paul. Okay. Any last, really quick rapid-fire question, any trigger phrases you feel like you would coach me not to say in court?
Paul Phipps:
Oh, the worst one is if you are in a divorce or a paternity case where it's involving children, those children are not "my children"; they are "our children." Most judges do not like, and if you think about it, if you go into court and you say, "My daughter, my son, my children," it just breeds the sense of, "That's my child," and almost minimizing the other parent. So whether you feel that way or not, a key phrase would be to say, "Our children." That is a big one in family law.
Pete Wright:
Our children. I would not have expected that because for me, as soon as you start speaking legalese, I'll start speaking legalese too. And I'll be saying, "May it please the court" all day long. I'm a real danger to myself and others.
Paul, you're fantastic and patient to be coaching me on my first appearance in court. Now, you're also a fascinating human being. Can you just, in the spirit of getting to know you a little bit, Paul, tell us a little bit about what Big Papa does on the weekends?
Paul Phipps:
Oh, well, I love to travel. I'm married and my wife and I love to travel. We go to really, what people would say, weird places. I've been to Chernobyl.
Pete Wright:
Oh.
Paul Phipps:
Yeah. Back when it was before all this mess that we're having now with the world and it really wasn't a thing, we went on a tour of Chernobyl and there were a total of five people on the tour. We were the only people there. It was incredibly fascinating.
Pete Wright:
No kidding.
Paul Phipps:
But I've been to most of Eastern Europe. But really, my love is my grandchildren. I love my children as well in case they're listening to this, but being a little older and being able to return the grandchildren, not having 100% obligation for the care and control and feeding of them, just love and enjoy spending time with the grandchildren, enjoy spending time with friends, like doing things outdoor. I just try to live life. It's a gift that we get and that I think people should really enjoy it.
Pete Wright:
Well, you're a huge gift, certainly to this podcast, a fascinating individual. Everybody listening to this, go listen to the other episode, "Divorce in the Military." We learn even more about Paul and his history, which is again, extraordinary. So thank you, Paul, for your time today. It's always a treat to sit down with you.
Paul Phipps:
Yeah, and thank you for the kind words and remember to give me the names of the four people that you polled to find out that they adore me, okay?
Pete Wright:
Yeah, I sure will. I just changed your name in my contact list to Big Papa too, so I'll tell them Big Papa was asking.
Thank you everybody for hanging out with us as our summer of fun continues. Don't forget, you can head over to howtosplitatoaster.com to ask us a question and we'll throw it to whoever's here. If Seth isn't here, might be Paul, might be Tia, might be Sterling. You never know who you're going to get, so it's a real roulette over here. But we're just glad you're here any way you show up. Thank you.
On behalf of the wonderful Paul Phipps, and I'm Pete Wright, and we'll see you next week right here on How to Split A Toaster, a divorce podcast about saving your relationships.
Outro:
Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction.
Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
