Even though I carefully prepared all of these documents and gave it to them, they easily could claim (and they did) that I had never given them any of these things at all. And this presents a major problem that will thwart all of your efforts in trying to do the right thing.
to read the entire trial transcript - CLICK HERE
So just imagine that I give a big manila envelope full of bank statements and receipts to the other side, as is required by the rules of exchanging evidence. They get this envelope, look through it, and decide they don't like what they see, and then they claim that you never gave it to them at all!
Then, they can even tell the judge that you did not give them the documents as requested, and file a motion that your evidence be excluded “in limine" because you had not produced it as requested. This is something that Barbara Hammers attempted to do at the beginning of our trial. She filed a “motion in limne" to exclude all of our evidence. All of it.
Judge Mark A. Juhas would not allow it: here is an excerpt from the actual trial transcript to show the thrust of their argument:
17 THE COURT: "Respondent shall provide petitioner
18 with a full and complete accounting of all refinance
19 proceeds of any and all real properties owned by him or
20 standing in the name of any other personal entity,
21 whether currently owned or previously owned, from
22 December 25th, 1996 to the present."
23 Is that it?
24 MS. HAMMERS: Yes.
25 THE COURT: Okay. So what did he provide you?
26 MS. HAMMERS: He never provided us a complete
27 accounting of the refinances.
28 THE COURT: That wasn't my question. What did he
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1 provide you?
2 MS. HAMMERS: He provided us with --
3 THE COURT: No. Description is -- I need to know
4 what he provided you because you are asking me to look
5 at him and say "You didn't comply with this order. You
6 can't testify to this." And I am not going to do that
7 based on a broad description of what he did or didn't
8 do. You need to come up with what -- "This is what he
9 gave me. This -- this is what he gave me. He's now
10 testifying about something else that he should have
11 given pursuant to this order." I can't just say okay
12 and prevent evidence from coming in.
13 MS. HAMMERS: Okay. So when you ask me, "Well,
14 did he give me a full and complete accounting of the
15 refinance proceeds?" the answer is no.
16 THE COURT: Did he give you something?
17 MS. HAMMERS: He gave us some information, yes.
18 He gave us no information regarding the disposition of
19 the proceeds from the refinance of Treetops.
20 THE COURT: Let me stop you right there.
22 THE COURT: I need to know what he gave you. So
23 somewhere along the line, he's given you something. And
24 so that's what I need to have.
25 MS. HAMMERS: Okay. We were provided with a
26 schedule attached to a voluntary settlement conference
27 brief. We were provided with --
28 THE COURT: Where is that? I need -- I need to
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1 know what -- I need these documents. Whatever you are
2 going to say he -- to take this harsh of "You can't let
3 this evidence in," you need to show me he didn't comply
4 with this court order.
7 THE COURT: I need to know what he did provide
8 and then from there, you can say see it only goes to
9 here. "He was supposed to provide this and didn't."
Barbara Hammers goes on to describe the documents that we gave her:
21 MS. HAMMERS: Okay. So we received three
22 separate documents that -- multi-page documents. We
23 received this first document.
24 THE COURT: Okay.
25 MS. HAMMERS: We received Respondent's
26 Exhibit 763.
27 THE COURT: Sorry. Okay.
28 MS. HAMMERS: And then we received schedules
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1 attached to the respondent's voluntary settlement
2 conference brief, which I have a hard copy, but I only
3 have one. I pulled it out of my file.
4 THE COURT: Okay. Are any of these an accounting
5 of the refinance proceeds?
6 MS. HAMMERS: Well, I suppose if you -- I don't
7 believe it's an accounting. But there are some -- there
8 were some schedules that were attached that -- after
9 that that -- there were these particular schedules, and
10 then there were these schedules that were attached.
What was happening here was Barbara Hammers was trying to argue that because I had a court order to produce documents, even though I had produced documents that she is describing above, she's basically saying that these documents weren't sufficient in complying with court orders. And so what she is trying to do is have the judge exclude my ability to include any of my evidence at all.
The problem with this argument is that if the documents that I had produced were not particularly helpful to me, then that is what lawyers call a “weight of the evidence” argument. In other words, if all I have is really lousy evidence, then it's to my own peril. But it is certainly not in violation of a court order if my evidence isn't good enough to win me the case.
So what you are seeing is the frustration from the judge in trying to decipher Barbara Hammers' circular argument that the evidence that I produced pursuant to a court order wasn't good evidence, and therefore was in violation of the order. And what the judge is trying to convince her of is, if I evidences no good, then it's to my own peril.
17 THE COURT: Okay. What specifically do you not
18 think that you have that you need?
19 MS. HAMMERS: Well, part of it is we come here to
20 prepare for trial, and we're seeing things for the first
21 time that we didn't see ever -- ever seen before.
1 THE COURT: So what -- what do you think, if you
2 get these things, you are going to prove by getting
3 them? What are you missing? What is your prejudice I
4 guess is really the question?
5 MS. HAMMERS: Well, the ability to verify.
6 THE COURT: Verify what?
7 MS. HAMMERS: If what he says is true.
8 THE COURT: If he says what is true?
9 MS. HAMMERS: What he did with the proceeds.
10 THE COURT: What difference -- what difference
11 does it make what he did with the proceeds? That's my
12 question.
After a lot more arguing from Barbara Hammers, the judge still it appears to be really confused by what the point of this whole discussion is:
22 Maybe I am misunderstanding what your
23 issue is.
24 MS. HAMMERS: I -- I don't know. I can't
25 articulate it. I -- I just -- it's a situation where
26 I'm -- I guess without any way of being able to verify
27 it I suppose is the issue. You know --
23 THE COURT: What is his obligation under the law
24 to account for every penny of his money after the date
25 of separation? He has to account for how he uses the
26 community property.
27 MS. HAMMERS: Right.
28 THE COURT: No question about that. But other
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1 than that, he has no obligation to account to her for
2 money that he's made and all of that sort of stuff.
3 MS. HAMMERS: And we're not -- well, I disagree.
In the end, the judge denied Barbara Hammer's motion in limine in my estimation because after reading the section of the trial transcript many times, I still can't (for the life of me) understand what the purpose of that motion was other than to just simply argue over nothing. I was ordered to produce evidence, I produced evidence, this evidence probably wasn't particularly helpful to me (but nobody knew that early in the trial what direction that evidence would lead us) and Barbara Hammers is trying to argue that I should be excluded from including it.
I think sometimes honestly that she thought I was so clever and cunning that whatever I did - whether it was to her benefit or not, probably had some clever master plan behind it that had to be second guessed at every corner.
Undoubtedly this resulted in a lot of court time because unless I'm estimating this incorrectly, that entire argument over that situation alone lasted over an hour, or over $1,000 in attorney fees.
Can you imagine having a trial where every single piece of evidence was argued in exactly this particularity of detail? If the judge did not control the pace of this trial, it could've lasted easily over 100 years at this pace.
The true irony of this of course is that with all of the time that was spent worrying about the evidence that was in our pile (and complaining about it) Barbara Hammers missed something big on her pile: she did not produce the final declaration of disclosure as ordered, and wound up costing her client $200,000, and resulting in a published appeals decision for attempting to sanction a party while you yourself have "unclean hands".
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