THE RIGHT TO BE PRESENT

Some of you who have been out there doing a divorce will immediately understand what I am talking about here.  

Have you ever been in court for a motion or for a pretrial and your lawyer goes off for a while with a bunch of papers and then comes back and says, "Ok, well, the deal is this.  They have agreed to do fill in the blank, if you do fill in the blank, then you will have the advantage of fill in the blank and they will have fill in the blank, so just sign here on this document and we can all go home."  

Hey, wait a minute!   

How did that happen?  Weren't we supposed to go before the judge and present our case?  Didn't we come in today with substantial evidence to support our position?  Then you want to ask, "Did you mention this important point?  Did you mention that important point?"  

Of course, you will never know the answers to these last questions because, guess what!!!!! You weren't there in the meeting!  The lawyers decided all this without you being present!  

Pay attention to what is going on around you.  As you stand in line waiting to go through security, have you ever seen two lawyers quietly arguing over their legal positions?  Well, that was when your lawyer and the other lawyer decided how to pursue their actions in your case, and all without you to chime in with your ideas.  And have you seen two lawyers standing together in the corridor chatting while their clients' haven't yet arrived because they are still driving to the courthouse because were told to come an hour later than their lawyers.  Why did that happen?  Because the lawyers wanted to make up their minds how to handle matters before their clients' showed up so that they could hammer out an agreement and be on the same page so they could present a united front.  

"No fair?" you say!  Well, sorry about that.  The lawyers sat and listened to you in a kind of therapy session the day before, and now they have decided what is best for you for your own good.  So You're done.  You can argue and argue and argue with them, but they have made up their minds and too bad for you.  

Where this becomes particularly crucial is in The Status Conference.  Periodically during the time when your case remains before the court, the clerk will schedule a Status Conference, which is a meeting held before a judge to update him or her regarding the status of your case.  

When you go to your lawyer and say, "Oh, I see there is a status conference on such and such a date.  How do I need to prepare for it?" your lawyer will say to you, "Oh, you don't need to be there."  Oh, baloney!  Of course, you need to be there.  Baby, baby, baby, listen to me, believe me, believe me before you believe your nincompoop attorney, you need to be present at each and every status conference held in your case.  

First off, without you present, such a status conference will be held off the record and so at a crucial meeting where the judge, the opposing attorney, and your attorney are present together discussing your case, all of it will be done off the record.  You never want to have any aspect of your case discussed off the record.  The reason why the status conference is off the record when you are not present is that such conferences are ordinarily held in the judge's chambers, i.e. office.  However, if you insist upon being present, they will conduct the status conference in the court room with a clerk present to write up a transcript. 

 Second, a status conference is an informal reporting in conference.  It is the forum at which you can talk about what kind of case this is, what are the barriers to resolution in the case, what still needs to be done in the case in regard to discovery and any other matters.  Is there a problem with the ex husband not paying child support, is the mother at risk of losing her apartment?  

In this less structured conversation with the judge about what is going on with the case, many of the themes of your case will emerge, themes that will dominate the case.  You want to play a hands on role in terms of shaping those themes.  Otherwise, you will become their victim, particularly in regard to how the judge perceives your character and the motivations behind your actions in the case.  

Being there.  Being present.  Nothing is more vital.  

So, never allow your lawyer to josh you and say, you don't have to go, you don't have to be present.  You have to be present at all meetings, at all negotiations, at all court hearings, at all mediation sessions, at everything.  

And don't let anyone tell you no you can't go.  You have the legal right to be present at all meetings regarding your case and at all court conferences relating to your case that are held with judges and attorneys and you have the right to bring a family member or a friend to all court proceedings, unless a judge orders otherwise. 

Take advantage of that right.