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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-12-2008, 08:34 AM
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Default Should We Correspond With Lawyer Against Us?

We received a letter from my stepson's mom's lawyer, asking for a response to the issues he listed, indicating what his client demands. (More money, as usual... She's the bright one that is willing to pay thousands for a lawyer to fight for a couple hundred.)

Specifically, the lawyer brought up issues that were address and resolved the last time we went to court. At the end of the correspondence, he wrote that if we do not respond, he will be forced to bring these issues up at our future court date (by filing their own motion for changes) so that they may be adjudicated on. Please note, that these were issues already adjudicated on and ordered by the judge at our last court date a year ago!

We feel that the lawyer is using intimidation tactics and threats against us knowing full well what he can get away with since we do not have a lawyer. They probably think that now that we are self-representing, they will be able to change the current order to how they would like it, not what was ordered as fair by the judge. (For more info, see thread titled "How Do You Split Child Care Costs?")

My question is this...

Do we have to correspond with the lawyer? We fear that if we do, he will continue to reply with more demands and threats. We fear that if we respond, we will clue him in to how we are going to proceed at the court date, putting us at a complete disadvantage. We fear that if we respond, anything we may unknowingly agree to may be used against us. However, we also fear the consequences if we don't respond.

We are at a total disadvantage here, and it seems her lawyer is trying to use that to his advantage.

Any thoughts? Advice?
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Old 12-12-2008, 10:03 AM
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Also, if we choose to reply (for fear that if we don't, it will be seen as an agreement on our part)... how long should we wait before sending a response. We'd like to wait as long as possible in order to postpone having to respond to yet another letter. But we also don't want to wait too long. What do you think is an adequate time to provide a response?
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Old 12-12-2008, 10:09 AM
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Is the letter marked "with prejudice" or "without prejudice"?

My ex's lawyer sometimes sent 5 letters in one day to me, all marked "with prejudice" "to be presented to court".

I usually answered in a non-answer way. Sometimes I outright ignored them as over the last four years(three with a lawyer) I learned that his tactics are not always thought through.

When we were in a motion last week, my exs lawyer was totally pushing to end our issues by way of a regular(turned long motion day as all other cases got solved first)motion day.

My situation is absolutely a trial issue, but the ex is trying to force a judge to make final decisions based solely on affidavit evidence. There are serious credibility issues in my situation that need to be addressed directly to a judge in a trial.

Anyway, my ex's lawyer was trying to get a judge to rule on a document that is invalid. It would take cross examination or a thorough reading of file, including lawyer correspondence to get the real picture.

I used the "dumb self-represented" card and asked if the judge would read without prejudice letters from the ex's lawyer that clearly indicate that I am correct. The ex asked to see my copies, read them, then flat out refused to allow the judge to read them! Well, that told the judge that I am not the one who is hiding anything.

These letters CAN be very important, whether they are with or without prejudice. My advice is if there appears to be an urgent issue(ie refusing access, harm to children, something you aren't doing but are obligated to do, financial disclosure as per family law rules) then write back. Don't say too much( I know it is easy to SAY that).

If the other side is requesting something they are likely to win if they went to court, then I think you should answer as you could be liable for costs if it went to court.
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Old 12-12-2008, 10:15 AM
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I don't recall anything being written on the letter as "with prejudice." Plus, the letter was fairly informal (except for the part asking for more daycare costs, see "How Do You Split Child Care Costs?").

I think either way, all letters would and should be admissible in court.

We drafted a response... one that responds but doesn't say too too much. Hopefully this will appease them... though I doubt it will.

We're just having a hard time deciding when to send it. A week from having received the lawyer's letter? Two weeks? Three weeks?
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Old 12-12-2008, 12:12 PM
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The time frame is pretty much a personal judgement call.
If there is a motion/court date in progress then you may want to look into the rules on deadlines. Via telephoning the court house.

In order for them to be permitted to have the issue reviewed is if there has been a material change in circumstances that directly affect the “child”.

I'd reply, quote the previous order and be done with it. If they choose to force it back to the court then you've covered your bases, and the courts hopefully see that the ex is just trying to stir things up, particularly if they have repeatedly been addressed with the same outcome.

I do not feel anything is going to change with respect to the judgement on this particular issue given the back ground you gave.
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Old 12-12-2008, 06:15 PM
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Whenever a lawyer writes a letter saying "Please do [ACTION X] or we will be forced to do [ACTION Y]", it usually means that either they want to goad you into doing [ACTION X] voluntarily, or they don't think [ACTION Y] will ultimately get them the outcome they want. After all, if they think [ACTION Y] will get them what they want, why don't they just do it?

They're probably bluffing. Don't underestimate the effectiveness of a non-response. You're not required to do anything a judge doesn't tell you to do, and that includes answering lawyers' letters.

Having said that, I've worked in professional situations with very seasoned, high-end litigators. They preferred to always answer letters because they loved getting stuff on the record. But they made sure they were setting the agenda instead of merely following the other lawyer's lead.

Finally, "without prejudice" letters are privileged communications that are not admissible in court; they are intended to protect offers to settle and such, so the other side can't rely on the communication to claim an agreement has been reached. But because the "without prejudice" privilege is intended to protect negotiations, courts sometimes allow portions of a "without prejudice" communications that were clearly not part of a negotiation.
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Old 12-13-2008, 10:25 AM
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Thanks NoahJenda.

We've decided to reply, primarily because the lawyer said (in legal terms) "This is how my client wishes you to act. I think the existing court order is fine the way it is. What do you think so that I may know whether this issue needs to be addressed in court." (See "How Do You Split Child Care Costs?" in Financial Issues)

We are happy with the order the way it is. We do not wish to change it. We are planning to reply with "As you, we too believe the order is fine the way it is." Hopefully if this issue comes up in court (should his client push it there) we will have ample proof that both us AND her lawyer think no change is necesssary.

This being said... should we write "With Prejudice" on the top of our letter, to ensure that it can be brought to court if necessary? The lawyer's letter we received does not say anything about "prejudice" on it but it indicates how and when it was delivered (i.e. in court).

Advice on how to make our response admissible would be great!
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