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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34067
Experience:  Retired (mostly)
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introducing a recording as evidence, scope of a new trial

Customer Question

2 questions...


1) how do i introduce a voice mail as evidence?


2) the ex's argued for a new trial on the basis of improper treatment of stock-based compensation.  does the new trial open the scope for everything and anything, or just the stock-based compensation?

Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello again,

I'll take question #2 first, because I need to think about how you would introduce the tape without a witness (usually, the attorney is questioning a witness to introduce evidence).

Re the new trial, the scope of the new trial depends entirely on what the judge orders. Obviously, if there are custody issues, they have nothing to do with stock-based compensation. But, if the stock is subject to division as community property, and also subject to use in calculating child and/or spousal support, then the new trial order could cover all three subjects.

Back soon with #1.
Customer: replied 1 year ago.

this is actually a post-decree matter (divorce decree was in 2009). she is always coming back for more child support. She is arguing a whole bunch of issues, all of which were decided upon by the judge in august. her attorney is trying to reopen every issue, not just the stock-based compensation part of my total income.

Expert:  socrateaser replied 1 year ago.

There's no reason to argue with opposing counsel about what the judge is allowing to be retried. Request a case management conference and ask the judge to clarify exactly what issues are to be retried. Then, you'll know.

 

Re #1, here's the answer. This took a lot longer than I expected.

 

Terms: P = proponent; O = opponent; J = judge; C=clerk; W = witness.

 

Note: There are at least four different ways that I can think of offhand to introduce the recording into evidence. Some of the methods are quite complicated, and I’m picking one that I think will work for you (could be wrong).

 

P: Petitioner/Respondent calls [spouse's name] to testify.

P: [C administers oath to W; J may ask W to state her name for the record]

P: Ms. W, do you recall a message that you left me on my voicemail on January 1, 2013?

W: [getting worried, but thinks that the best answer under the circumstances is] No.

P: Would it help you to recall the message if I were to refresh your memory by playing the recording for you?

W: [who is now trapped, because it would be incredibly disingenuous to say that hearing the recording would not refresh her memory] I suppose so.

P: [plays the recording -- O may object on grounds that he has had no prior notice of this evidence. However, a witness' recollection can be refreshed with absolutely anything, so if the judge is impartial, the objection will be overruled. Assuming that you play the recording, the recording is not in the record. All you have done is to refresh the witnesses memory. You must still ask questions to get the testimony into the record.]

P: Do you now recall that you told me you had someone who was prepared to pay thousands of dollars in order to make sure you had adequate legal representation?

W: Um...yes. [game over]

Note: The above seems pretty simple and slick, but it suffers from some defects: If W says at the beginning of the questioning that she recalls the message, then you can't play the recording. You would have to ask her what she said, and if she lies or recalls incorrectly, then you will have to impeach her testimony with the recording. So, let’s try out the worst-case scenario (even though I think that your spouse will probably fall victim to the best-case version above).

P: Ms. W, do you recall a message that you left me on my voicemail on January 1, 2013?

W: Yes.

P: Do you recall that you told me you had someone who was prepared to pay thousands of dollars in order to make sure you had adequate legal representation?

W: No I do not.

P: Your honor, on January 1, 2013 at 10:34PM Mountain Standard Time, a voice message was left on my cell phone voicemail system. This message remains saved on the voicemail system, exactly as originally received.

P: Your honor, I have a document here which I ask that the clerk mark as Exhibit #1. I also have a true copy of the document for opposing counsel and for the court.

J: Clerk will mark the document as Exhibit #1.

P: Your honor, although I cannot provide the voice message as a physical exhibit for marking by the court, Exhibit #1 is a copy of the voice message that I made by listening to the voice message and faithfully transcribing into the word processor on my personal computer, each and every word that I heard reproduced. I then reviewed the recording twice while reading my copy to verify that the transcription is accurate, and I have found it to be a true and correct reproduction of the each and every statement which may be heard on the voice message.

P: Your honor, when listening to the voice message, I recognize the voice reproduced as that of W. I recognize her voice, because I have heard it many times on many similar voice messages during the course of our marriage. Also, the voice heard on the voice message identifies herself by W's first name. And, the voice states things that only W would know, such as [describe something on the message that only W would likely know].

P: Your honor, I ask that the court permit me to play the voice message directly from my cell phone with the speaker turned on, while the court reviews it to determine that the transcript and the voice message contain the identical statements.

J: You may play the message.

P: [plays message] Your honor, if the court is satisfied that the statements transcribed in Exhibit #1 are substantially identical to the statements made on the voice message, I ask that the court admit Exhibit #1 into the record.

Note: O may object here for numerous reasons, most likely that the transcript is hearsay. Your response is that the transcript is merely a copy of the original, which because of the method of its creation, cannot be physically introduced into the record, and therefore the transcript is the “best evidence” of the original, which is unavailable, and the original is not hearsay, but rather a “party admission.”

Assuming that you have the transcript in evidence, then…

P: Permission to approach the witness your honor?

J: Granted.

P: Ms. W, I am handing you Exhibit #1, which is a transcript of a voice message that has just been admitted into evidence. Would you please read it out loud from beginning to end.

W: [reads transcript]

P: Do you recall just a few minutes ago, hearing the voice message from which this transcript was made?

W: Yes.

P: Do you recall leaving this message for me?

W: Yes.

P: Thank you, XXXXX XXXXX questions at this time, your honor.

Note: There are still things that could go wrong here. W could claim that she doesn’t recall leaving the message, or she could claim that it’s not her voice on the voice message. If that occurs, you can testify after she excused from testifying, that you received the message on the specific date and time, that you saved the message, transcribed the message and recognized the voice on the message as that of W, because you have heard her voice on voice messages numerous times during your marriage, and because of the things that she said that only she would know, you are certain that it was W who left the message.

Hopefully, you won’t have to go through this entire scenario, but it could happen.

And, now you know why I said this is a complicated protocol.


Hope this helps.

Customer: replied 1 year ago.

yeah, wow! that is complicated


I posted the recording on youtube as an easy and generally accessible way of getting to it. Here is the link if you're interested:


http://youtu.be/U6mTZ_oUjYs


 


do you think that would work better or worse?


 


thank you man! you're awesome.


 


 

Expert:  socrateaser replied 1 year ago.
Video is marked private, so I can't review it. Regardless, making a copy of the recording on a website is not going to help you get it into evidence. There is a lot about the steps that I've provided which I am not explaining in detail because it would require too much writing. But, I have tried to eliminate all of the possible objections that could be made against you.

If you make a copy of the voice message, then you have to explain how the copy was made and the chain of events that gets it onto youtube. It still can't be physically admitted into the record, and even if it could, in a bench trial, a transcript is generally better than the actual recording, because it saves the judge time. In a jury trial, you might want to also make a physical copy of the recording so that the jury can actually listen to the recording. But, there's no jury here, and the judge doesn't need to remember the tone of the person on the recording. The words are all that are necessary.

Hope this helps.

Expert:  socrateaser replied 1 year ago.

Errata:

 

The following should be reordered, from:

 

P: Your honor, on January 1, 2013 at 10:34PM Mountain Standard Time, a voice message was left on my cell phone voicemail system. This message remains saved on the voicemail system, exactly as originally received.

P: Your honor, I have a document here which I ask that the clerk mark as Exhibit #1. I also have a true copy of the document for opposing counsel and for the court.

J: Clerk will mark the document as Exhibit #1.

 

To:

 

P: Your honor, I have a document here which I ask that the clerk mark as Exhibit #1. I also have a true copy of the document for opposing counsel and for the court.

J: Clerk will mark the document as Exhibit #1.

P: Your honor, on January 1, 2013 at 10:34PM Mountain Standard Time, a voice message was left on my cell phone voicemail system. This message remains saved on the voicemail system, exactly as originally received.

 

Note: this is the end of the month. If you could kindly give me a positive rating before 9:00PM MST, I'd greatly appreciate it. Otherwise, I'll have to wait a month to get paid.

 

Thanks for your understanding.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34067
Experience: Retired (mostly)
socrateaser and 7 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

done, i hope i got it in on time.


I can't ask the Court for a conference to determine the scope of the new trial because the hearing is on Tuesday.

Expert:  socrateaser replied 1 year ago.
Not following you. Do you mean that the new trial is Tues, or the new trial or ___?
Customer: replied 1 year ago.

I mean that the new trial is on Tuesday. Actually, there was a whole bunch of stuff jumbled up together on Tuesday.


There is the new trial regarding the child support


 


Also, I had filed a petition to modify custody and parenting time back in August and had asked for a custody evaluation to be performed. The custody evaluator came back with basically the same thing as we have now, so her attorney is asking for fees (around $25,000) by claiming that I was just being vindictive and that there is a massive disparity between my income and hers. That will be addressed on Tuesday, too.


 


wish me luck.

Expert:  socrateaser replied 1 year ago.
Before the trial begins, ask the court to order on the record, the precise scope of issues which are to be included. in this new trial. Argue that the previous new trial order, as issued by the court do not permit anything other than [whatever you believe was actually ordered]. If the court says that something is to be included which you believe is not reasonably found in the orders, then request a continuance on grounds that you are being unfairly surprised with an issue for which you did not receive reasonable notice.

Be ready to try everything, because the judge can control this issue. The reason for getting everything on the record is so that you have a record for an appeals court, should you decide to go that route.

Hope this helps.
Customer: replied 1 year ago.
Hey, is there any way I can continue to make sure I work with you? I've had better results from you than any of the other "experts" that I wound up with.
Expert:  socrateaser replied 1 year ago.
Hello,

1. If you put my userid at the beginning of any new question (e.g., "To socrateaser"), then generally speaking, most of the other "contributors" will not interfere (n.b., I don't like or use the term "expert" in this venue, because I believe it may tend to mislead customers into believing that a particular individual has expertise that he/she may not actually possess).

2. You can lock a question so that only I can answer for up to 24 hours (I think).

3. You can tell anyone else who tries to answer, that you will not rate their answer, and that you only want to correspond with me. If a contributor knows you won't rate their answer in advance, then they will opt out of the conversation, because no rating = no payment, and no payment = no incentive to answer.

4. If you believe that you were disserved by any answer received in this forum (including mine), you can contact customer service and request a refund. That sends an unmistakable message to the contributor and to the website operator that you are not happy with the contributor's answer.

Note: If you ever think that I've made an error, then please let me know immediately, so that I can reconsider and research the issue further. I'm certainly capable of error -- but, if I don't know that I've made an error, then I will continue making it, and that doesn't benefit me, or anyone else.

Thanks for your continued confidence.
Customer: replied 1 year ago.
I tried that, but it doesn't seem to work. I figured out a way to do it through the website, but it only works when you're online. Send me an email when you're online and I'll try again.

In the meanwhile, here is the question, or rather several questions--all associated with the same motion.

The Court has determined that a disparity of financial resources exists between me and my ex. I believe this was based on our relative incomes. However, when you factor in taxes and child support, our income is substantially the same. I filed a motion for reconsideration on that issue, and her attorney stated that I failed to support my position with case law. I want to find some case law to support it.

Her attorney is quoting Dyer v Dyer as case law to support the idea that all sorts of income (including the possible forced sale of my home, my 2nd wife's income and the sale of unvested stock options (which are unvested and cannot actually be sold)) should be included when determining "ability to pay" for her attorney fees. I read Dyer v. Dyer and it says nothing of the kind. How can I confront this?

Expert:  socrateaser replied 1 year ago.
I tried that, but it doesn't seem to work. I figured out a way to do it through the website, but it only works when you're online. Send me an email when you're online and I'll try again.

A: Then, the website has changed the rules without informing me, so all I can tell you is that if someone else jumps into a question, then you can "relist" the question, and in your explanation, state that you only want to work with "socrateaser." Eventually, I'll stumble on the question, or a moderator will tell me that the question is floating around waiting for me.

That said, you asked:

The Court has determined that a disparity of financial resources exists between me and my ex. I believe this was based on our relative incomes. However, when you factor in taxes and child support, our income is substantially the same. I filed a motion for reconsideration on that issue, and her attorney stated that I failed to support my position with case law. I want to find some case law to support it.

Her attorney is quoting Dyer v Dyer as case law to support the idea that all sorts of income (including the possible forced sale of my home, my 2nd wife's income and the sale of unvested stock options (which are unvested and cannot actually be sold)) should be included when determining "ability to pay" for her attorney fees. I read Dyer v. Dyer and it says nothing of the kind. How can I confront this?

A: Dyer is inapposite. The ruling was made in 1965 before enactment of A.R.S. 25-324 (1976) which is the current attorney's fees statute for dissolution actions. Better case law would be, Magee v. Magee, 206 Ariz. 589 (AZ App. Div. 1 1/8/2004) -- which makes an exhaustive analysis of the various factors involved in an attorney's fee award (and, which doesn't mention Dyer at all. The Magee court writes:

 

Given the above, I would try to show that the amount of fees awarded, if any, should be based upon the proportionate disparity of the parties' net worth, after the dissolution award, and that to the extent that you have not paid attorney's fees by representing yourself, the court should give you credit, because you are saving the community from expending assets to pay attorney's fees.

 

This latter consideration is entirely novel on my part. The court may claim that you are effectively asking for an award of attorney's fees to yourself. But, in fact you are not, because you are not suggesting that you are entitled to be paid for self representation, but rather that you have actually saved your spouse money which but for your self representation would have been expended on litigation expenses.

 

That will give everyone something really new to think about, and it could give you some negotiating leverage.

 

Hope this helps.

 

Customer: replied 1 year ago.
Are you in the Phoenix area? I really like your style. I'd be happy to buy you a cup of coffee, pint of beer, or whatever is your thing.
Expert:  socrateaser replied 1 year ago.
I'm flattered -- seriously. However, in order for me to successfully do what I do here, I really need to remain anonymous.

PS. Just out of curiosity, were you able to get the recording into evidence?
Customer: replied 1 year ago.
They actually introduced my transcript of the recording into evidence as part of an email I had sent to the custody evaluator, so I didn't have to do any of that business.

As I'm sure you can guess since i'm now trying to fight these legal fees, the Court didn't seem to care.
Expert:  socrateaser replied 1 year ago.
That's interesting. Not sure how the rules of evidence would permit that, but in any case, we've moved onto new territory.

Thanks again.
Customer: replied 1 year ago.
yep. i introduced a question to the system, we'll see if it makes its way to you.
how about i uplevel my offer to dinner at Donovan's?
Expert:  socrateaser replied 1 year ago.
Tempting -- but, I'll have to pass.
Customer: replied 1 year ago.
FYI, i tried to put a question in the system that basically said "This is just for Socrateaser" but it bounced back as unanswered.

Any other tips/tricks you can recommend to help me beat this legal fee thing? I'm really in a rough spot... I'm actually having trouble making my mortgage this month and a 5-figure legal bill on top of the retro-active child support calculation is going to kill me.
Expert:  socrateaser replied 1 year ago.
I can see the other question that you posted, and I responded to it about an hour afterwards, on 7/26 at 3:46PM PDT. However, the system indicates you never read my response.

Re your question, I completely understand the circumstances you're in. In fact, I've been in the same circumstances.

Short of having a physician determine that you are clinically depressed and that you need complete rest -- such that you must take 12 weeks of FMLA leave -- all of which would require that the court grant you a downward modification of child support, because you cannot work -- I don't know what else to tell you.

The point is that if you can work and you have assets, then the court will extract the maximum economic benefits from you. The system is broken, and it has been this way now, since about 1986. The only things that you can really do is to downsize your life dramatically, tighten your belt and wait out the years until the kids are no longer on the "payroll." And, if you happen to get sick along the way, and/or you lose your job, etc., then that will put more pressure on the other parent to get off her *** and try to contribute to her own support, rather than to try to use the system to get support from you.

Hope this helps.
Customer: replied 1 year ago.
in case you're curious, the court answered none of my objections or arguments and simply said "the Court has reviewed Petitioner's China Doll Affidavit of Attorney's Fees and Costs, Respondent's objection, and Petitioner's reply. Based on this Court's previous findings and good cause appearing. It Is ORDERED entering judgment against Respondent and in favor of Petitioner and her attorney in the amount of $12,000, plus interest at the legal rate of 4.25% as of this date for Respondent's contributions to Petitioner's reasonable attorney fees and costs as ordered in the Court's order dated June 11, 2013 and filed June 13, 2013."

Some more stuff about signing as an entry, etc. No explanation, no findings of fact or law. Just that.

Part of me wants to appeal, most of me realizes I should accept my losses and cut and run.
Expert:  socrateaser replied 1 year ago.
Thanks for the update. Your prior posts suggests that the original request was for $25,000, so $12,000 seems to be in line with a 50/50 split.

I'm not sure I understand the "china doll" reference, but if it was meant as an insult to the fragile quality of your argument, that's the kind of thing that gets judges sanctioned by the disciplinary committee.

Nievertheless, if the court cut the attorney's request in half, then that's probably the best you can hope for, because if you appeal and you lose, the appellate court will tax you with your spouse's attorney's fees, and that will be a lot more than $12,000.

Hope this helps.
Customer: replied 1 year ago.
That's my feeling too.

"China Doll" is the common term for an affidavit of this kind. I had to google it.
Expert:  socrateaser replied 1 year ago.
Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (Ariz. App., 1969).

Well, molybederned. I lernt sompin' new teday!

Actually, the judge is full of s***, in my opinion, because the issue is not whether the amount of info is sufficient for the purposes of a typical attorney's fee memo in a civil case. The issue is whether or not the amount of information satisfies the requirements for attorney's fee reimbursement in a family law matter, and that is an entirely different standard.

As is also typical, the judge in family court, makes up the law to suit the circumstances.

Ces't la vie.

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