Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

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shutterstock_72927181A Bucket Full of Snakes– Spousal Privilege in Family Law Cases

Spousal privilege confuses a lot of smart people.  One form of legal privilege is the testimonial privilege which prevents certain witnesses from testifying about things they know.  Familiar examples are the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. The privilege can only be asserted by the client, patient or penitent, and never by the attorney, doctor or priest.  The law does not favor privilege because it excludes evidence; as such, courts “narrowly construe” privilege, which means its technicalities are strictly followed.  Spousal privilege only applies to testimony in court.

Section 2945.42 of the Ohio Revised Code provides that a witness may not testify against his spouse unless the case involves personal injury by either spouse against the other.  So, unless the spouses are suing each other for bodily injury, or have “waived’ (given up) the privilege, spouses may not testify against one another if the non-testifying person properly asserts the privilege.

Spousal privilege has far-reaching implications.  Spouses routinely testify against each other in family law cases; by filing claims against each other, they are deemed to have waived (given up) the spousal privilege because they have filed court actions against each other.  Nevertheless, spousal privilege can still be critical in family law cases.

Successful Assertion of Spousal Privilege in a Custody Case

Recently, I represented the mother in a custody case and I called her husband as a witness.  The father’s attorney asked him what his wife (the mother/my client) had told him about how long she left the child alone after school.  I objected and asserted the spousal privilege.  The father’s attorney rolled his eyes and laughed.  The Magistrate adjourned, researched the issue and found that I was right.  The mother was married to the witness and what she told him is protected by the spousal privilege.

The father’s attorney then lost his momentum on cross-examination and never recovered.  Had he read the statute since the bar exam, he would have attempted to prove that the mother had given up the spousal privilege by making her statements in the known presence or hearing of another person.  Had he asked the witness in his earlier deposition before trial whether he had told anyone else what his wife had told him, he may have been able to introduce the statements by a third-party.  The spousal privilege only stops a spouse from testifying, not from running his mouth outside of court in a way that could be admissible.  As a result of all this wrangling, everything my client told her husband about the case was excluded.

Future Applications

Most family law cases have cross claims that kill spousal privilege.  Perhaps when I represent the next Defendant I could withdraw our counterclaim at the last minute and then assert the privilege when the Plaintiff attempts to introduce anything the Defendant said.  With the right case and the consent of the client, fun times could be had by all.

Copyright 2014.  All Rights Reserved.  Anne Catherine Harvey LLC

Why I Love Family Law Depositions at the Dayton Law Library

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In addition to the usual trappings of a regular public library, a law library offers services to its members such as free internet, heavy law books for the technological hold-outs, and meeting rooms.  The Dayton Law Library, located on the 5th Floor of the Dayton-Montgomery County Courthouse, 41 North Perry Street, Dayton, Ohio, (just beyond the Second District Court of Appeals) provides a conference room that I have come to appreciate for reasons other than as a pit stop between cases or a place for leisurely research and writing tasks.

Depositions are a part of many civil cases.  In a divorce matter, a deposition requires an estranged husband and wife, each of their attorneys, a court reporter, and possibly an outside witness, to sit together, often for hours, in the same room.  The opposing attorney questions the other side’s witness under oath about the facts of the case.

Suffice it to say that tensions can escalate.  Suffice it to say that attorneys are control freaks.  Further suffice it to say that who ever owns the office containing the conference room where these joyous activities takes place starts with a very real, or at least perceived, advantage.

In my salad days, back when I worked for the Air Force, I would routinely travel cross-country or beyond to conduct depositions.  I learned how to walk into the “hostile territory” of the contractor’s office for the simple reason that the contractor was never required to travel to the Air Force offices in Fairborn Ohio.  Sometimes things got argumentative, but for the most part everyone behaved well.  Of course, the fact that nobody had any of their own money, or the future of their family, at stake may have helped keep the peace.

Litigation is War

Litigation is War

Domestic relations depositions can be wild.  When I was first starting out on my own, I made a convenient young female target.  Opposing counsel would call me names, disrupt my questions, instruct their clients not to answer questions, and sigh, moan and sputter loudly to distract me.  I had a couple of nose-to-nose shouting matches.  I had a lawyer refuse to produce his client after he agreed to because I had not filed a “formal” notice of deposition.  Overall, it reminded me of roller-derby.

As I got older and more experienced, things got a little easier.  Certain attorneys, though, are chronic offenders and the drama they create in depositions is a lifestyle choice they’ve consciously made.  The state bar has recognized this reality and sends us all off to school every two years to study “professionalism.” Of course the hard-core offenders are unfazed.  Working under these conditions takes its toll.  I sometimes refuse cases based only upon who represents the other side.

One day this year my brain made a startling connection.  I routinely tell my clients to meet with their spouses at Panera Bread  or Bob Evan’s or some such place for two reasons.  First, people behave better in public places.  They could be arrested for disorderly conduct if they behaved in public the same as some of them behave at home.  Second, there is no time limit at those restaurants.  They can sit for hours and quietly conduct their business.

Voila!  Depositions are not limited to either lawyers’ office.  Neutral territory would put everyone on an equal playing field.  Lawyers are going to act better in public for the same reason as everyone else–it’s more daunting to make an ass of yourself where people can judge you than inside your privately owned property.  Bullies love secrecy.

The choice of place was a little more difficult, because restaurants charge money to guarantee any level of privacy.  The law library offers all that we need:  neutral territory, a public yet private place, and no cover charge.  There is a gigantic conference table, picture windows showing the sprawling metro view of Dayton, and plenty of spiffy oak chairs with arm rests.

Dayton Law Library

Dayton Law Library

The resistance I have met from other lawyers to this simple arrangement been astounding.  I have been accused of being the perpetrator of confrontations in depositions.  I have been accused of “dragging” a down-town attorney all the way to the court building where he has walked to from his office every day for the past twenty years.  I had one lawyer actually pull the books to research the issue–not surprisingly, he found no controlling precedent on the burning societal issue of where lawyers should conduct depositions.

I remember a funny story.  A federal judge on a particular case had pages of motions and legal memoranda from two sets of lawyers about who got to host the depositions.  This genius of a man ordered the lawyers to conduct a rousing game of “rock scissors paper” in the courtroom, on the record, in the presence of their clients, the winner to decide.  Those lawyers reportedly complied, went home and then promptly settled the case.  Word got around, and that judge never had to order another pair of legal combatants to play that game.

Asking for neutral public territory gives me credibility (at least in my own mind) against the accusations of the legal bullies in southwest Ohio.  While reflecting on this whole topic, I realized something obvious: it’s not about control of the conference room.  It’s actually about some lawyers simply being too good for the Dayton law library.

Not me!

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC

Happy Library Patron

Happy Library Patron

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