Many times clients will ask what resources we are going to utilize in the course of the case. For instance, it’s often helpful to have the services of a forensic accountant in high income support cases.
As another example, early in the process of a contested custody case, you should consider hiring a forensic psychological expert to help prepare for the eventual forensic interview by the court-appointed neutral. Caution should be given however that you don’t want to overly prepare a client for such an interview. This is simply because a standard question the neutral court-assigned forensic psychological expert will ask is “who prepared you for this interview?” If they say “my attorney had me sit with an independent forensic psychological expert and they prepared me extensively for this interview,” the neutral court-assigned expert may think the interview is at least to some degree compromised by that.
So you do want to have your client prepared but not in a detailed, scripted format. I wouldn’t generally advise to do a mock interview with them but more that the independent forensic expert would talk with them in more detail about general things which are going to be discussed and how to go about answering certain questions and what to say – and what not to say.
Again, if you’re going to hire an independent forensic accountant, it’s better to hire one early on. If you do it that way, your expert is ready to go the minute the other side starts producing their disclosure to the attorney. You can then just scan those documents & e-mail them right over to the independent forensic accountant – who will then be able to go through them with a fine-toothed comb.
They’re going to let you know whether there are holes in the person’s accounts that are otherwise unexplained. They’ll be able to trace certain deposits and withdrawals. For instance, many times people transfer money between accounts, either from their bank account to their credit card or from one bank account to another bank account. The forensic accountants will trace those transfers between the accounts and make sure they’re all showing up – and more efficiently and more cheaply than the attorney would be able to do. Certainly if somebody is withdrawing from a bank account in the amount of $10,000 and that doesn’t show up in one of the accounts, then this is certainly a question that you will need to ask them either in the interrogatories or at the depositions – but you’ll want to know this well in advance of setting forth those interrogatories or conducting the deposition.
Is it True That People in High Income or High Asset Divorces Are Choosing Mediation Over Trial?
I wouldn’t necessarily say more people than in the past – mediation itself is a concept that’s largely only come about in the last 10 or 20 years. Thus, it depends on how far back you’re setting that initial date. If you’re saying as compared to divorce cases in the 70s, 80s and even into the 90s then I might agree with that, but if you’re saying over the last 10 or 15 years I wouldn’t necessarily agree. Statistically, especially in divorce cases, about 90% to 95% percent of all such cases will be settled at some point along the road. The courts & lawyers have a variety of methods for settling, including mediation. In the cases that I’ve handled – and I’ve been doing this 21 years now – the vast majority of them do not settle by going to mediation.
It’s actually extremely rare that parties opt for mediation once they hire their own attorneys. Usually it’s more efficient to simply have the two attorneys for the husband and wife negotiate, possibly with the aid of a four-way settlement conference. I’d say probably less than 5% of the cases that I’ve done have been referred to mediation. That’s not to say mediation doesn’t work. It certainly does work when the parties go in with open minds and avail themselves of that process. It’s just that usually when the parties have chosen to hire independent counsel right from the very beginning (which is again the overwhelming majority of the time), they usually just stick with their independent attorneys to negotiate a settlement.
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