Archive for Email

I am in a custody battle in California. My ex left an awful and damning voice mail message on my home answering machine. Can I use the recording in court as evidence?

By Shawn Weber, CLS-F*

In short, yes. While there are strict rules regarding the use of unlawful recordings of telephone conversations, there is no prohibition against recording a voice mail message. Ostensibly, the person who left the message knew that the message would be recorded, so you do not run afoul of the rules on unlawful wiretapping.

Some attorneys may attempt to object to the admission of the recording because it is hearsay. In other words, it is an out of court statement offered to prove the truth of the matter stated.  (See California Evidence Code section 1200.)  Normally, such statements are prohibited to be used in evidence.  However, in some cases, there are exceptions.  This is one such case.

Voice Mail Message

Statements made by a party to the action are excluded from the hearsay rule.  Because the statements made on the voice mail message are made by a party opponent (your ex) there is no concern about hearsay. It is admissible as an exception to the hearsay rule under California Evidence Code section 1220. See also People v. Horning (2004) 34 Cal.4th 871, 898 n5.

The only other concern you may have in getting the recording admitted is the issue of “authentication”. In other words, you have to show that the recording actually is what you purport it to be. You can probably take care of this by presenting your own testimony that you are familiar with your ex’s voice and that it was he or she who left the message. Also, you will want to indicate that you are familiar with the workings of your voice mail system and that this was left by your ex on your voice mail system. You can also get an admission from your ex by use of a document called a “Request for Admission” asking your ex to admit that it is an authentic recording of his or her voice left on your voice mail.

You should have an attorney work with you on how best to present the recording to the court as evidence. There are rules about how something must be presented. The rules are technical and a screw up could cause the evidence to be excluded.  However, getting something like a recording into evidence can be very effective.  A judge actually hearing the voice of the person can be very powerful and persuasive evidence.

The corollary to this post is that a person leaving a voice mail message, email or text message should be very careful.  A person should just assume that any communication made with his or her ex or child could end up in front of the judge.  Beware of social media posts as well.  Many custody battles are lost over stupid communications.  Just don’t give yourself the hassle.  In my own cases, I often recommend that my clients have me review their email messages BEFORE they are sent to make sure that they have the intended effect and to ensure that there are no unintended consequences.

Here’s an AWFUL voice mail message left by actor Alec Baldwin on his daughter’s phone.  This unfortunate message was a demonstration that Baldwin had SERIOUS anger management issues.  Needless to say, it caused him a lot of problems.  Now the recording is infamous.  Sadly, this kind of thing is not unusual.  Just follow my mother’s advice, “If you can’t say something nice, don’t say anything at all.”

(Just a warning, the language is strong.)

If you need help in preparing evidence for family court or with coparenting communication concerns, contact San Diego child custody attorney Shawn Weber at 858-345-1616 or see our website at www.bravewebermack.com.

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.

High Conflict Divorce Tip #2: Avoid Reactivity

As the next installment in my series of tips for surviving a high conflict divorce, I want to focus on the issue of reactivity—or perhaps better said, over-reactivity.

Here is an email exchange that is very typical:

Email #1: Susie, I was hoping to take little Johnny to visit my mother in Montana for a week during the summer. As you know, my mom has been ailing a lot lately. She is only expected to get worse and I was just hoping to take Johnny to get to know her before she gets worse.

Email #2: Jim, your mother has done nothing but ruin our lives. We moved to California to get away from her and I don’t know why you would want to take our son around her. Besides, your father drinks and you know how I feel about that. Will you please think about what is in the best interests of our son instead of involving him in your twisted relationship with your parents?

Email #3: Why are you trying to involve my folks in our divorce. You always hated them. You are so selfish, which is one of the reasons we are divorcing. My father doesn’t drink any more than anyone else—certainly less than your drug addicted sister. I already talked to Johnny and he wants to visit his grandparents. You should follow his wishes! Why are you trying to get between him and his grandmother?

Email #4: You son of a $%#@! Why are you involving our son in this? You never cared about him. You are just using him as a pawn. I will go to court and do whatever I can do to stop you if you even think of taking him to see your abusive parents. I just told Johnny that he doesn’t have to go with you to Montana if he doesn’t want to go. He is already signed up for camp anyway and can’t go.

Email #5: F%&@ you! This is parental alienation and I am tired of it! I just retained a very tough attorney and she tells me that if you keep this up I will get sole custody and you will only be able to see Johnny with a supervisor. And don’t even think about keeping the house. My attorney tells me that you will have to pay my attorneys’ fees. Don’t even think of asking for support either. I will quit my job if you do!

I wish I could say that an email exchange like this is rare in my observations. Sadly, it’s quite common. Often times in high conflict cases, the parties have a tendency to feed off of each other. Negative energy has a way of creating more negative energy. We, as human beings, have a tendency to react strongly if we feel we are being attacked or if we are scared. Fear and anger are huge motivators. “Fight or flight” instincts kick in. Often these instincts lead us to involve the children inappropriately in adult business.

My advice is to resist the urge to pile on. We are not computers. This means that if our so-called “buttons are pushed,” we need not react in a prescribed fashion. For instance, my spouse speaking ill of my parents does not mean that I will then launch into a tirade of obscenities. Emails are an excellent way of measuring how high the conflict in situation can be because it is all there in print. However, most of the high conflict communications happen elsewhere. The same concepts apply though.

Here are some tips to be measured in your responses:

1. Court may not help. I can’t tell you how many times something bad happens in a case and the initial response of the wronged party is to file motions at court. I have to admit that early in my career, I was far more likely to have knee-jerk reactions to give ex parte notice and demand all sorts of remedies at court for every little perceived wrong. I learned quickly, though, that this rarely helps. Judges hate the tit-for-tat games being played out in their courtroom. If unchecked, dueling court motions can turn the courtroom into a forum for very bad and aggressive behavior. People write terrible, blistering affidavits full of he-said-she-said accusations that are rarely helpful to the court in making a decision. The judges become overwhelmed with the negativity and usually develop very bad opinions of both parties. I have also experienced that the most negative person at court is viewed the most negatively by the judge.

There are other options to resolve problems besides court. Mediators or mental health professionals can go a long way to diffuse problems and they can often do it faster. I just filed a motion in court the other day for a routine issue. It was set for four months away. You can often resolve problems with the help of ADR professionals and/or mental health professionals in a fraction of the time.

I am definitely not saying that Court should never be used. Sometimes, it’s the only way. But it should be used sparingly as a last resort. I generally don’t like to go to court unless I know I am going to win. Otherwise, my client should seriously consider keeping her powder dry.

2. First listen, carefully, THEN respond. Often times one party expresses a concern that causes them anxiety. Perhaps the person doesn’t say it carefully, especially if the person is upset. Often what the other party hears is only the portions that make him the most angry or fearful. In the email example above, Jim asked if he could take the kids to see his family. But all Susie heard was her own reaction relating to her bad experiences with Jim’s family. Jim, for his part, didn’t hear some of the legitimate concerns that Susie had about his parents and reacted only to what caused him anxiety. Rather than take the time to really ponder and think about addressing Susie’s concerns, he flew off the handle. Naturally, the conversation deteriorated because the couple was reacting instead of listening.

I frequently coach my clients to listen carefully first to what the other person is saying. I ask them to avoid getting caught up in the “background noise.” As in many divorces, communications can be accompanied by the emotions of hurt, fear and anger. Language can be unintentionally combative. Sometimes the language is quite deliberately combative. But if a person listens carefully and isolates the core concern that is driving the emotion and responds to the concern rather than the emotion, the communication can be less combative and thereby more effective. Here’s an example,

Jared: I am going to take the kids to see a ballgame with Linda and me.

Nancy: I can’t believe you’re taking the kids out with your girlfriend! She is why we are getting divorced! You are so selfish and disrespectful. She shouldn’t even be around our kids let alone taking them to a ballgame!

Now, at this point, Jared has a choice to make. First, he could fly off the handle and react to a perceived attack on his new love interest by his ex as follows:

Jared: I can’t believe you are so petty! The kids like Linda! You are just jealous. I wish you could get over that we are divorced and move on! You just want to ruin things for me and Linda!

If this were his reaction, I am sure you can see how unproductive the discussion will be. Perhaps what Jared should do in this situation is stop a minute and think hard about what Linda is telling him. Perhaps, after some careful thought and reflection, his response could be more like this:

Jared: Oh, I didn’t realize that you were uncomfortable with the kids being around Linda. Linda is really a nice person. But, I want you to know that she can never replace you as the kids’ mother. It is important to me that the kids eventually have a relationship with Linda because she is an important part of my life. Do you think there is anything that you and I can do to help the kids with the transition of my having a new relationship? This could help us in the future as well if you should ever start dating again.

Perhaps the second more careful reaction could be more effective. Jared recognized the concern that Nancy was having about introducing the children to his new love interest. Instead of attacking her back, he moved the discussion away from conflict towards a search for productive solutions.

3. Be careful about emails. The same concept applies to emails. A good friend and colleague, Bill Eddy, J.D., LCSW and co-founder of The High Conflict Institute, wrote a great article about Responding to Hostile Emails using the “B.I.F.F.” method. “B.I.F.F.” is short for “Brief, Informative, Firm and Friendly.” Rather than simply reacting to hostile email with a tirade of your own, Mr. Eddy suggests writing a carefully crafted response (if a response is even needed) to the angry email. You reduce the chances of a prolonged and angry dialogue by keeping the response brief and to the point. By focusing on providing the facts in a clear and concise way the email can be informative and thereby less inflammatory, you can make an effective communication without escalating the conflict further. By maintaining a friendly and courteous tone even when tempted to respond with anger, you deprive the other person of a reason to get defensive and keep responding. Finally, by clearly stating your position in a firm but non-threatening way you can effectively communicate your position. Again the goal here is to shut down the back and forth with clear and effective communication devoid of threatening and angry language. (For more information, see Bill Eddy’s book, BIFF: Quick Responses to High Conflict People.)

In summary, avoid reacting emotionally and reactively. Listen carefully to what is being said and try to discover the concern being expressed. Then, rather than attack back, turn the conversation towards possible solutions. This doesn’t work every time, but with patience, it can help. Remember, while sometimes necessary, court is rarely the best answer to resolve a problem. Try to work it out and when in need of help, seek professional assistance from a mediator or mental health professional.

Humans are an emotional species and much of divorce litigation is driven purely by emotion. Take time to review your own thought processes and reactions to challenges during your divorce. Ask yourself, often, if you are reacting out of emotion or out of thought. While emotions are a part of who you are, if left unchecked, they can block out reason and lead to sad and terrible outcomes. Don’t hesitate to seek out a mental health professional for coaching. It can be the difference between an expensive, high-conflict divorce or a financially and emotionally less costly, amicable divorce.

For more information and guidance on dealing with your high conflict divorce, contact Shawn Weber at 858-345-1616 for a free telephone consulation or visit www.BraveWeberMack.com .

Email: One of the most useful (and dangerous) tools in a family law case.

Email can be great for co-parents because it is instant, convenient and leaves a record, but its strengths become its weaknesses if not used smartly. Most family law attorneys have some horror story about a client’s own words from an ill-conceived email being placed into the court record. I hate watching my client squirm with regret as his or her own words are used against him. While the modern age has made communication instantaneous, there are some pitfalls to avoid. Here are my email rules:

  1. Assume that anything you write will be read by the judge. Avoid sarcasm or angry expressions. The reader can’t see your facial expressions or hear the tone of your voice. Something written in jest or sarcastically can be misinterpreted.

    Don’t allow email to become a forum for argument. Just use it as a way to impart information. Be aware that emotions are not easily transmitted in an email. For example, you can write “Mary stayed home from school today with a fever,” instead of “Since you forgot to put a coat on Mary, she now has a cold and will miss school. Thanks a lot! I guess it is yet another reason why I have nominated you for father of the year.” In other words, it should be “just the facts ma’am.” Also, be aware that emotions are not easily transmitted in an email.

  2. Never send an email when you are angry. In the old days, you could write a letter and never actually send it. If you were angry, the tedious and lengthy process of writing the letter could give you time to cool down. Even if you put the letter in an envelope and stamped it, you could stop yourself before dropping it in the mail. But with email, you can hammer out all of your angry ranting and then press “send”. POOF it is gone and there is nothing you can do about it. I have personally experienced that horrible sinking sense of regret a person feels when after returning from a blind rage, a person realizes that the email he just sent was over the top or even inappropriate.

    The best tip is to simply never write an email when you are angry. If you insist on typing something while you are angry, do not send it. Wait 24 hours to cool down and then read the email again. You will be glad you waited 9 times out of 10. It’s amazing how much more rational we become when we have calmed down and are no longer blinded by rage.

  3. Use B.I.F.F. A good friend and colleague of mine, Bill Eddy, LCSW, Esq., founded the High Conflict Institute and authored such books as High Conflict People in Legal Disputes and SPLITTING: Protecting Yourself While Divorcing A Borderline or Narcissist. He wrote an excellent article about how to deal with hostile emails. (For the full article from which I am liberally quoting, go to: http://www.highconflictinstitute.com/index.php?option=com_content&view=article&id=30&Itemid=101) Bill suggests using a “B.I.F.F.” response. In other words: Brief, Informative, Firm and Friendly.
    1. Brief,” in that you don’t want your email to turn into a rambling tirade that can be used against you. Don’t give the other side more ammunition to attack you.
    2. Informative,” in that you only want to communicate facts rather than unhelpful emotions. Focus on the information you want to communicate rather than on the disinformation coming from the other person. Certainly avoid personal attacks, sarcasm, name-calling, ranting and raving, etc. You want concise information that isn’t confused by emotional outbursts.
    3. Friendly,” in that you aren’t simply responding in anger. You are much more likely to end the conflict by not escalating but rather maintaining a friendly tone, even if you are tempted to respond in anger. Don’t overdo it. Just keep the tone relaxed and non-antagonistic.
    4. Firm,” in that you stand your ground in a non-confrontational way. Simply state your position clearly and don’t leave the door open for more negotiation (unless of course that is what you want).
  4. Beware of social networking sites. While not necessarily the same as email, comments on social networking sites can be dangerous. I represented a client once who had a MySpace account that she used for dating after her divorce. Later, in a post judgment custody battle, the silly and not necessarily flattering comments she made about herself and her sexual exploits were the subject of live testimony. While I fought hard to keep her MySpace account out of evidence, I was overruled. It was terribly embarrassing for her and worse, it cost her custody of her daughter because it colored the Court’s opinion of her. The moral of the story is that when posting something on the internet, a person should assume it will be available for opposing counsel to display in large font for the court and the whole world to see.

In summary, remember that while electronic communication is a wonderful tool that can streamline your correspondence, there are hidden dangers that can expose you to unwanted conflict. Just be careful with what you write or post.

Shawn Weber, Attorney & Mediator

Links to additional articles about emails:

Responding to Hostile Email, William Eddy, LCSW, Esq., High Conflict Institute

8 e-mail mistakes that make you look bad, Kim Komando, Microsoft Small Business Center

Doh! The Most Disastrous E-Mail Mistakes, Robert Luhn, About.com: Computing Center

Getting a divorce? Be aware of what’s in your e-mail, Janet Kornblum, USA TODAY, 2/14/2008

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