Bloomfield Hills Litigation Lawyer / Attorney

Litigation Attorney in Bloomfield Hills


What is “litigation?”

Litigation is the process of starting a lawsuit in a court which has jurisdiction over the issues involved in the lawsuit. Divorce, separation or other family and child-related issues are started by filing a lawsuit for divorce, separate maintenance, child custody, child support, or paternity against your spouse or the other parent of your child in the circuit court in the county where the parties or children reside. The lawsuit commences with a complaint. The person filing the complaint starting the lawsuit is the plaintiff and the person who is served with a complaint is the defendant.
Bloomfield Hills Litigation Lawyer / Attorney
Discovery

The litigation process involves the discovery of information from the other party suing or being sued. Discovery can consist of serving subpoenas on third parties or on a party to the lawsuit; interrogatories which are a series of written questions served on the other party which must be answered under oath; requests for admissions which are carefully drafted written questions requiring a party to admit or deny information under oath; the taking of depositions of the parties to the lawsuit or third party witnesses or experts which are recorded by a certified court reporter and answered under oath or video recorded under oath. The purpose of these discovery tools is to find out as much as possible about the parties’ financial affairs for property distribution in divorce and separate maintenance lawsuits, to find out the fitness or a parent in divorces with children, in custody and paternity cases and to discover income information in divorce, separate maintenance, spousal support, and child support cases. Michigan law allows for very broad discovery, meaning there is almost no limit as to what can be requested, if it is relevant to the issue being litigated, or is tailored to lead to other discoverable information.

Hiring Experts

Often litigation involves the hiring of third party experts, such as mental health professionals specializing in child custody evaluations and financial professionals who testify to valuation of businesses or the financial assets. Real estate appraisers can be hired as experts; sometimes accountants are hired as experts for tax related and financial issues or rehabilitation experts can be hired to testify to the job market and whether or not a party is underemployed or not earning income to his or her potential.

Downside of Litigation

Going through the litigation process is emotionally draining and an intrusive experience. The process automatically sets the former couple up as rivals and some attorneys actually encourage this animosity as part of the process. Heated litigation does not lend itself for the sharing and caring for the parties’ children after the lawsuit is finally settled. It is sometimes impossible to repair the damage to the relationship created by the process. Litigation fans the flames of distrust and a lawsuit can take on a life of its own before long and then it is difficult to create an environment where children feel they can freely relate to both of their parents equally.

The good news is that most cases are settled before any formal trial. In a divorce, when a trial is inevitable; people should expect to spend a small fortune on attorney fees cutting into whatever financial settlement they might have otherwise normally expected. Trials are expensive both financially and emotionally and after a judge has rendered a decision, most people are NOT happy with the outcome. “Having their day in court” is never what a person imagines it might be.

Disadvantages of Litigation, The Traditional Adversarial Process:

  • When issues arise during the litigation process stage before trial, the exchange of information is expensive and inefficient. This is because the process itself breaks down trust between the spouses, the two parties become very polarized. This polarization and distrust prevents any sort of communication between spouses. Thus, one spouse calls his or her attorney, that attorney then calls the other attorney, the other attorney then contacts the other spouse, then cycle continues, often leading to the necessity to get the judge to decide very simple issues.
  • The series of communications between attorneys and parties just compounds emotional and financial costs for parties, leaving less and less of the “marital pie,” to be divided.
  • The “discovery” process can be very elaborate involving hours of depositions, paying two attorneys, a court reporter, ordering transcripts.
  • If one or both parties fail or refuse to provide necessary documentation and information, motions to compel production must be heard by the judge, adding to the financial and emotional costs for both parties.
  • A party to a litigated divorce very often feels powerless because the attorneys have completely taken over the “fight.”
  • There is absolutely no privacy because all papers filed with the court are open to public scrutiny.
  • Furthermore, during a trial, the public may sit in the courtroom.
  • Because of backlog of court dockets, a trial may take months and months and may not be held on consecutive days or even in consecutive months. Judges schedule trials around their already full docket. Trials can be held one half day here, one half day there, until completed. Parties may then have to wait even longer for a final decision from the judge.
  • The intensity and polarization caused by the process leads many people to start involving their children to get them on their side.
  • If a case goes to trial, the costs are astronomical, both financially and emotionally.
  • Once trial is inevitable, the spouses are deadlocked into their own positions. One side feels like the victim accusing the other side of being the villain. At this point parties are scurrying to find friends and relatives to serve as witnesses to back their own view of the case.
  • There is no way to take back what each party must say about the other during testimony at trial.
  • After a trial, the family is left in shambles and may never be able to effectively co-parent children.
  • Most people are dissatisfied with the end result and may re-litigate issues into the future in an attempt to “undo” what a judge has done.
  • There is no “problem-solving” activity in litigation instead it is a win-lose/lose-win series of arguments made by the parties’ lawyers.
  • Any person believing that once he or she has had their “day in court,” they will be vindicated by a judge will be sorely disappointed. Judges are generally not as upset by one spouse’s behavior as the other spouse who views it as being so wrong. Thus, both parties are usually dissatisfied with the final outcome.
Early Intervention - Alternative Dispute in Place of Litigation

Thankfully, many domestic relations attorneys have seen the devastation litigation has on families. A good family law attorney will discourage harsh litigation and try to resolve the issues in a more effective and dignified manner at the onset. These attorneys recognize the damage to children if they fan the flames of the distrust which normally arises during divorce or contested issues involving children. More and more of the established group of attorneys handling families advocate alternative dispute resolution to solve problems between parents of children and during divorce. The attorneys in this firm provide clients with information on the alternative approaches when a divorce or other lawsuit seems inevitable.

This firm is specially trained in domestic relations mediation and in Collaborative Practice. Both processes assist people through with their disputes by encouraging effective communication, problem solving and creative resolution. Our clients learn to make their own agreements which affect their family. They are assisted with effective restructuring of their families making for a long term successful future outcome. The attorneys at this firm recognize that the final divorce is not the end. Rather than having a judge dictate or a lawyer push parties into settlement on the courtroom steps, people are far more committed to the settlement when it is their own agreement.

Mediation and Collaborative Practice are non-adversarial. We recognize, however, sometimes the alternative dispute process cannot work in every situation. During our initial consultation we get information from our clients to help them determine the best way to proceed. Every client is given information to make an informed decision on how to handle their specific needs. Therefore, when and if necessary, we will work within the court system to zealously represent our clients in an effort to achieve their goals.

When Litigation is Inevitable

The attorneys in this firm are experienced litigators; we know the laws; we know the court process; we know the rules of court; we have conducted numerous trials. We utilize research resources to provide legal support for the issues brought to the court for decision. Our clients are guided through the court system with full knowledge of what is happening at every turn. We require our clients to be in court so they are full participants. We recognize that, if at all possible, judges want to see the litigants during each and every court appearance. Furthermore, it is important to us that our clients witness first hand just how we perform in the court setting. Our clients review each and every document prepared for court prior to its submission. All questions are answered and various possible outcomes are discussed. Clients are thoroughly apprised through an extensive cost-benefit analysis of each issue to be presented.

Advantages of Traditional Adversarial Litigation:

  • Some people need the security and protection of an attorney who actively negotiates with their spouse’s attorney.
  • In some situations, there may be no alternatives.
  • Each person has the option of appealing the decisions of the trial court judge.
  • Some people want their “day in court."
  • A party who does not want a divorce can extend the conflict as part of a strategy to obtain the best result.
Starting a Lawsuit for Divorce

When a spouse has already filed, then the other party has to file an answer to the complaint within either 21 days (if personally served with the complaint) or 28 days (if the complaint was received by certified mail). It is often the case that at the time a divorce case is filed, the plaintiff will request the judge to grant temporary orders. These order are termed “ex parte” orders because they are granted without a hearing before the other party is represented by counsel and does not get the usual required notice. The orders are primarily to maintain the financial status quo, meaning the parties are ordered to pay their bills and expenses as they have been doing prior to the filing of a complaint for divorce, or the order may require temporary support for children or the spouse if the parties are living apart and the filing spouse requires support during the pending divorce from the other spouse. The plaintiff may also request a “mutual restraining order” which applies to both parties and prevents them from transferring, hiding or disposing of any assets, or changing beneficiaries on insurance policies or unreasonably increasing the debts of the parties. These ex parte orders will remain in effect unless and until the defendant files a written objection and requests a hearing within 14 days after being served with the complaint and these court order(s). If a hearing is requested, the judge may make changes to these orders which then become temporary orders pending the final settlement or trial. Defendants have only 14 days to object to such orders, so it is imperative that once served, the defendant seek legal counsel immediately. This is especially critical if child custody is at issue because it could affect the outcome in a contested child custody matter.

Motions

When disputes arise between the parties before the divorce is final such as custody issues, parenting time issues, support issues or any other problems which surface and the parties cannot come to an agreement, sometimes it is necessary to let a judge decide. The issue is brought before the court by “filing a motion.” It is called a “motion” because a party is “moving the court” for some form of relief from the current problem. The motion will schedule a hearing before the court where the attorneys state each of their client’s position to the court. Each county court has what is called a “motion day.” This is usually the only day when such motions are heard by the court.

The “hearing” on a motion is usually very short because all of the motions are scheduled on the same day at the same time. Thus it is necessary to wait while other cases are called before having a motion heard by the judge. At these hearings, only the attorneys are allowed to speak to the judge, unless the judge swears in the parties and specifically request that they speak.

Trial

In Michigan, less than 2% of all divorce cases go to trial. Judges are loath to schedule a trial on a divorce. They do not like to hear divorce trials because they present difficult and highly emotional issues; some judges also recognize the advantages to a negotiated or mediated settlement. Because of this, the judge may order mediation prior to trial or attempt to pressure parties anxious to end the marriage into a settlement through what is called “late stage” mediation. This is after the parties and their attorneys have attempted settlement, but were unable to reach settlement of all of the issues. If divorcing couples are unable to reach a final settlement through negotiations or mediation, the case will go to trial. The Supreme Court of Michigan has required family court judges to bring all of their cases to conclusion within one year, if there are children and within 90 days for divorces without children. Unfortunately, courts are crowded with many different litigants, so several scheduled trial dates may come and go without any trial taking place. These delays sometimes create opportunity to reach a settlement.

Usually the cases that go to trial are a result of highly contested issues and contentious differences between the parties. Very often these cases involve substantial income and assets and/or custody of the children.

Trial Preparation

A divorce trial requires diligent preparation by attorneys to the exclusion of all other cases at the time. This firm spends a considerable amount of time on preparation of a trial brief, the witnesses’ direct and cross examination questions, the exhibits, the statutory and case laws, the Michigan Rules of Court and of Evidence, the preparation of expert witnesses, including the client, deposing the other spouse’s expert witnesses and utilizing every possible resource to support the client’s case. Experts may be hired by both sides as witnesses depending on the issues at hand. For example, in a case involving the custody of a child, a forensic psychologist might be heard by the judge regarding parental custodial fitness and what is believed to be in the child’s best interest. This psychologist would have already met with both parents and the child prior to the trial to provide the court with his or her insights and opinions. Other experts may be called as witnesses to assist in valuing businesses, real estate, or any other investments.

It is important that an attorney present the judge with as much information about the family and the specific circumstances of the case and this must be done through strategizing, use of testimony and the presentation of documentary evidence, legal support, all accomplished in an extremely organized fashion. At conclusion of the trial, the judge will decide all of the issues involved in the contested divorce case after listening to the testimony of the various witnesses, weighing the evidence, determining the facts and the fairness to each party, and applying the law as he or she interprets its intersection with the facts of that particular case.

As previously stated, litigation is high drama and extremely emotionally charged. The litigants often feel anger, fear and profound sadness. When a client is placed on the witness stand by the opposing attorney, angry or fearful testimony may not ever be forgotten by the opposing party. When children are involved, a contentious divorce trial causes harm and animosity between two parents who must later share in decisions about and co-parent their children. When the trial is over, the future is bleak for these children because the former spouses cannot get over the damage caused to any future relationship.

In family law matters, trials should always be discouraged and conducted only as a last resort.
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DANIELLE A. SMITH PLLC
MICHIGAN DIVORCE OPTIONS
Attorney and Counselor
Mediator and Collaborative Practice
33 Bloomfield Hills Parkway, Suite 230
Bloomfield Hills, Michigan 48304

Phone: 248.519.2323
Facsimile: 248.282.0326; 248.792.5094
 
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