New Year’s Resolution #3: I Will Think Before I Speak

divorce questions to askBy Jennifer Paine

Attorney, Cordell & Cordell

My third and final New Year’s Resolution for you is an important one. The first two resolutions were to keep a parenting time journal and to make copies of all important records.

New Year’s Resolution #3: I Will Think Before I Speak

One slip of the tongue can be the death knell for your case.

But isn’t an out-of-court statement hearsay? Not if the statement is yours and your wife or ex offers it against your case. This is an admission.

An “admission” is a party’s out-of-court statement or assertive conduct used against him or her. For example, a defendant wife’s e-mail to her husband that she under-reported profits from her resale shop is an admission if plaintiff husband offers that statement against her (e.g., to prove that she earns more than she claims and thus is not entitled to alimony).

All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the offering party need not find one of those hearsay exceptions to apply before offering it into evidence.

The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-driven plaintiff wife’s lawyer could admit an e-mail of remorseful defendant husband apologizing for “gambling away our savings” or “taking that trip with my secretary because I didn’t care what you and the kids did at Christmas.”

The attorney could use his sincere apology, which the husband thought the wife would appreciate, to prove that husband gambled the parties to debt or cares more about his new girlfriend than his children.

Or the lawyer might have the wife testify that the husband often bragged about the cash he received under-the-table for cash sales at his family business to prove that he earns more than he says he does. Or the lawyer might print the husband’s Facebook status updates and tweets, in which he ranted about “having to go to court with that b****” to prove that husband disparages his children’s mother.

Even if they are inaccurate, untrue, heat-of-the-moment and poorly-thought-out comments, these admissions will do considerable damage to your case. Once the judge or jury hears them, that is it.

Although your lawyer may request a limiting instruction so that the statements apply for some things (e.g., the speaker’s credibility) and not others (e.g., the truth), it is impossible to forget a damaging statement. As the saying goes, “You can’t un-ring a bell.” Once they’re heard, they will not be forgotten.

Once your wife or ex hears them, you can bet she will not let you forget, either. Better to bite your tongue than exhaust your resources with letters between attorneys’ offices clarifying “what you really meant” or time in court explaining yourself away.

Always think before you speak, “Will this sound good in court?”

As the year begins, resolve yourself to make these changes – keep a journal, make copies of your records, and think before you speak — and you could very well save yourself time, money and stress enough to afford that new car and become a brand new you in 2011.

Other New Year’s Resolutions for you:

Resolution #1: I Will Keep a Parenting Time Journal

Resolution #2: I Will Copy Work, Medical and Other Important Records

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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