Uncivil Litigation: Protecting
Against Scurrilous Conduct

By Charles C. Abut

UNFORTUNATELY, there are too many instances of "dirty tricks" taking place in contested matrimonial cases.  All too often, the "dirt" is being dished out, not only by emotionally out-of control clients, but sometimes by the attorneys representing them. This article highlights some recurring areas of abuse in this age of uncivil litigation, and suggests ways of dealing with them.

False Allegations of Sexual Abuse.  Nothing is more serious than a false allegation against a parent of sexually abusing a child.  If your client is the accuser, you should insist on an immediate and thorough investigation, including interviews of physicians and psychiatrists, and document to the fullest extent possible the absence of a phony claim.  In addition, the sexual abuse of a child is a crime, and should be reported.  If your client is the accuser and is unwilling to report the crime as such, and further refuses to permit you to report the crime, an ethical problem arises, which may force you to move to be relieved as counsel.

If your client is the accused and denies the allegations credibly, you must marshal every available scrap of evidence to support the denial.  Lie detector tests are a possibility.

Ultimately, the testimony of the child may become an unavoidable necessity, unpleasant as it may seem.  Depending on local rules of court, the child’s testimony may or may not be transcribed, and may or may not be sealed.  In any event, it makes good sense to immediately move for the appointment of a guardian ad litem for the child.

Frivolous Custody Claims. Every experienced matrimonial attorney has encountered the litigant  who threatens to "go for custody," sometimes in a contrived effort to extract financial concessions from the other side.  If your client addresses such a tactic with you, your. recourse is simple: you will refuse to take part, and if the client insists, you will take the appropriate steps to resign as counsel.

If your client is the victim of this "tactic," aggressive and immediate discovery techniques must be implemented to expose the bogus nature of the claim.  These should include immediate depositions, as well as interviews of neutral witnesses, such as the child's pediatrician, the child's teachers and friends and neighbors who have direct knowledge of the facts and circumstances that would support or negate the custody claim.

Using Children as Messengers.  Matrimonial litigants often allow their anger and other emotions to infect their conduct as responsible parents.  Since communications with the other parent are often strained or non-extent, a parent may tell the child, "tell your father he's late with his support again!" or "tell your mother I want to switch weekends for visitation." While you will counsel your client that such  “messages" are inappropriate and that a child is not to be used for such improper communications, opposing counsel may not, and even if the other lawyer does, the litigant may not listen to the lawyer.  If so, and if written and telephone warnings are ineffective, you must immediately file a motion, seeking an  injunction against the offensive behavior.

The Dirty Deposition. The normal deposition should be unmarked by frequent objections. In those limited instances where objections are made, they should be limited to the form of the question, or to matters that are privileged, particularly in those jurisdictions which follow or closely track the federal rules.  However, be prepared for the adversary who "prompts" the deponent with a proposed answer, such as, "I object, but you may answer if you remember." Not surprisingly, the deponent may answer, "I do not remember." Similarly, the adversary attorney may say, "I object, but you may answer if you understand the question," to be followed by the predictable response, "I do not understand the question."

A related consideration is the too frequently tolerated "strategy” of the lawyer conferring with the client during the deposition.  In one recently reported decision, the court prohibited private conferences between the deponent and the attorney during the taking of a deposition, unless applicability of a privilege was involved.  Thus, private conferences during the deposition, at coffee breaks, lunch breaks or evening recesses were prohibited, unless a privilege was in issue. In another recent case, the court ruled that speaking objections were improper, as were attempts to color the witness' response with the "right" or "correct" answer.  Simply put, there is no reason why such rules should not apply during the taking of a matrimonial deposition, and you should not hesitate to seek the intervention of the court in order to prevent the abuse of your client.

Conflicting Out Top Attorneys.  Beware of the litigant who intentionally interviews (and pays consultation fees to) the top matrimonial attorneys in the area, with the express purpose of conflicting them out, and preventing the adversary spouse from retaining them.

The Phony Tax Return.  Unless you have received copies of the tax returns directly from the Internal Revenue Service, you can never be completely certain that the copy you have been given is genuine.  Some litigants have been known to produce doctored tax returns (or other documents) to suit their own purposes.

Lateness.  Intentional lateness can be another tactic: whether it is the late service of motion papers (or replies thereto), lateness for meetings or hearings or the late payment of support - all of these can be part of a carefully orchestrated scheme to extract concessions from your client.  They should not only be resisted, but opposed with applications for sanctions, or monetary penalties built in to agreements.

Untimely Service of Documents.  Some attorneys (with or without the active encouragement of the client) make it a practice to serve motion papers, deposition notices or major discovery requests on the eve of a major holiday, at 5 p.m. on a Friday, or immediately before a critical extended period of visitation. While these maneuvers may be within the rules, they are symptomatic of a "scorched earth" or "hardball" approach that your client needs to be warned about and protected against. Often, rather than responding in kind, it sometimes is enough to request relief from the court.  For example, most judges will not only be sympathetic to an application for additional time when you advise that you have been served with motion papers on Christmas Eve, but will also get the picture quite quickly regarding the motives and techniques of the moving party.

By avoiding dirty tactics yourself, and by knowing how to deal with them from opposing counsel, you strengthen your ability to be of the maximum service to your clients.