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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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  #1  
Old 02-24-2018, 12:16 AM
kate331 kate331 is offline
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Default Applicant vs Respondent

I was at my lawyers today for a meeting and she told me the "Applicant" always has the advantage, or upper hand.

Her example was (I was there to respond to ex's Form 10 Answer) that the Applicant gets the last word.

Do you think this is true? Just curious. Because from what I have read here, it doesnt make a difference.
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Old 02-25-2018, 01:18 AM
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Tayken Tayken is offline
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Originally Posted by kate331 View Post
I was at my lawyers today for a meeting and she told me the "Applicant" always has the advantage, or upper hand.
I disagree. In fact, neither has the "advantage". In response, you get to listen to (read everything) the other party puts forward first. In rebuttal you can really do some creative stuff introducing evidence that can destroy an applicant's case.

I would rather be the respondent every time than the applicant. Respondent is not the agressor in court and goes second. Sure, the Applicant can reply to a response and you can't reply to a reply but... If you do it right... You can really nail the coffin shut. But, you need a very good lawyer.

Most barristers (trial lawyers) always want to be on the reply side. Most solicitors (lawyers who don't like court) like to be the applicant. It is a matter of style.

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Originally Posted by youngdad91 View Post
Her example was (I was there to respond to ex's Form 10 Answer) that the Applicant gets the last word.
But, you can feed them their words if they over-step on the evidence quite easily. Often, so well that their reply on digs them deeper. In reply you can really crush BS hard.

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Originally Posted by youngdad91 View Post
Do you think this is true? Just curious. Because from what I have read here, it doesn't make a difference.
I don't think it is true at all. I can introduce you to piles of VERY GOOD lawyers who would rather their clients be the respondent. When you are in Applicant you never know how the respondent will reply. You always have the reply upper hand.

So, if they say something happened on a date and you have solid evidence it didn't happen on that date or in the manner outlined you can simply attach the evidence and draw attention to the lies. You can also attach the undeniable evidence (like say a police report or a medical record) to crush them.

Case on point...

I was reviewing a file for someone and there was a lot of nonsense about the respondent doing something that was impossible. The Applicant had with vigor stated that the respondent was doing this activity and unable to care for the children as a result. They gave further evidence on specific dates (all made up) of the respondent participating in that activity.

Funny thing... It was impossible. The activity had not been invented until 3 years after the dates given. In fact, the inventor of this activity provided a letter stating the release dates of the activity and that it wasn't even known to the public at that time and was in pre-concept development!

JUDGE WENT BONKERS when the reply hit with the hard evidence that the entire section of the affidavit was fabricated. It was glorious.

"Lawyer X, can you explain how the respondent could have possibly been doing those activities, which did not exist as outlined by the inventer, that are detailed from paragraph XX to YY in your client's affidavit." -- The only proper response would be...

"Well, your Honour, my client admits they are fabricated and would like to retract them and appologize to the court."

But, what I was told by the lawyer I was assisting... Was that the lawyer fumbled through the question and the judge then yelled for 15 minutes in the court room at the Applicant and the lawyer.

Furthermore, the resulting order followed this litigant through the case... They were not trusted by any judge. Everything submitted was seen as fabrications. Elaborate, over detailed fabrications.

It happens all more than you can imagine.

Furthermore, in reply to your reply they cannot raise new evidence. Only respond directly to your materials. So they are nerfed somewhat.

The element of surprise lies in the response.

Last edited by Tayken; 02-25-2018 at 01:22 AM.
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Old 02-25-2018, 01:26 AM
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Finally, if you want to stop the affidavit wars... At any case conference where a judge is going to make an order for the matter to proceed to motion that the motion is PREEMPTIVE ON BOTH PARTIES with both parties filing an affidavit at the same time and both responding at the same time with no further filing of replies after the first response.

Motion shall proceed on date X.
The motion shall be preemptive on both parties.
The Applicant and Respondent shall file affidavits on Day X at 1:30pm sharp.
The Applicant and Respondent shall file replies on Day Y at 1:30pm sharp.
There shall be no replies by either the Applicant nor the Respondent filed on Day Y at 1:30pm.

Problem solved. (A lawyer can fix the wording of the above of what you should be requesting.)
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Old 02-25-2018, 03:09 PM
rockscan rockscan is offline
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My partner was the applicant in his divorce and the judge hammered the respondent. He is now the respondent and his lawyer said he is in a better position that way because his side is all facts. Hers is all “non” facts and things that arent legal.
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Old 02-25-2018, 03:14 PM
youngdad91 youngdad91 is offline
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in my experience, it has always been better to be the respondent. You get first dab at poking holes in their actions. This is why it's very important to have a very good lawyer and solid card when you are the applicant - so that all possible holes and follow up questions have been competently addressed in your application.

non the less, I am the respondent, but the moving party in my motion to change.
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Old 02-25-2018, 04:53 PM
vocalfather vocalfather is offline
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Default Not really...

I just went through our family law trial this past Spring as the applicant. While I can see how some might feel that way, the reality is that the evidence speaks for itself. All the rebuttals and ability to have the last word means nothing if you don't have the facts/etc to back it up. Don't get hung up in that at all. Stay the course. All the best.
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Old 02-25-2018, 11:26 PM
Tandem80 Tandem80 is offline
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Quote:
Originally Posted by Tayken View Post

Furthermore, in reply to your reply they cannot raise new evidence. Only respond directly to your materials. So they are nerfed somewhat.

The element of surprise lies in the response.
I have actually been wondering about this. I am the respondent and have just filed, so I will be receiving a reply that will be the last word. She likes to have the last word. Always. I hope my response and exhibits, which contradicts everything she stated, is strong enough.

Is the onus on her now to prove herself with documentation? Because I am positive she doesn’t have any to prove her lies.
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Old 02-27-2018, 04:03 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
Most barristers (trial lawyers) always want to be on the reply side. Most solicitors (lawyers who don't like court) like to be the applicant. It is a matter of style.
Commenting on this - there are advantages and disadvantages to being the Applicant (or moving party), or Respondent (or Respondent party). This will differ from case to case. Some (good) family lawyers prefer the Applicant side because they will use it to dictate the frame of the case. An effective advocate can do well as either Applicant or Respondent. Some (good) family lawyers prefer the Respondent side because they can incorporate the evidence already presented, including cross-examination, to advance their theory of the case.

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the resulting order followed this litigant through the case... They were not trusted by any judge
If a party swears a false affidavit with their lawyer, and they are found out, it is expected that the lawyer will immediately jettison the client since faith has been broken.

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the reality is that the evidence speaks for itself. All the rebuttals and ability to have the last word means nothing if you don't have the facts/etc to back it up. Don't get hung up in that at all.
These are wise words. Judges are interested in the facts, and will apply the law to them. As long as the facts get to the judge they will overlook the poor performance of an incompetent lawyer to make the right decision.
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Old 02-28-2018, 11:40 AM
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Originally Posted by OrleansLawyer View Post
Some (good) family lawyers prefer the Applicant side because they will use it to dictate the frame of the case.
But, the applicant has no control over what comes in a Reply. So, often, it is a false sense of security. A respondent always knows what the other party is trying to "dictate".

Furthermore, depending on the party, if they come in as the applicant too strong they will naturally be seen as the aggressor. In fact, if they come in on an emergency ex-parte motion a whole new level of expectations are put on the applicant by the court. Both in "truthfulness" and "accuracy". (Because you are asking a court to wave a respondent's charter right to be present.)

There are situations where you often have to be the applicant though and there is little option.

1. Mobility - The other parent is going to move with the children
2. Abuse - Other parent is physically abusing the other parent and/or children.
3. Contempt - Other parent is not following the order.

Quote:
Originally Posted by OrleansLawyer View Post
An effective advocate can do well as either Applicant or Respondent. Some (good) family lawyers prefer the Respondent side because they can incorporate the evidence already presented, including cross-examination, to advance their theory of the case.
I don't find many people rely upon the "theory of the case" these days. It is usually someone seeking sole custody with majority access and someone seeking joint custody and equal access.

Claiming "abuse" isn't much of a theory. I think no-fault caused this dumbing down of theories into a standard set of claims. Applications and replies are all starting to read the same to me these days.


Quote:
Originally Posted by OrleansLawyer View Post
If a party swears a false affidavit with their lawyer, and they are found out, it is expected that the lawyer will immediately jettison the client since faith has been broken.
Most skeevy Toronto lawyers will not drop their clients and prop up their lies or turn each appearance into a recital of the last.

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Originally Posted by OrleansLawyer View Post
These are wise words. Judges are interested in the facts, and will apply the law to them. As long as the facts get to the judge they will overlook the poor performance of an incompetent lawyer to make the right decision.
"Facts". Often absent from Family Law matters.

Family law litigants often confuse "facts" with "truth". Even lawyers too.
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Old 02-28-2018, 04:32 PM
OrleansLawyer OrleansLawyer is offline
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the applicant has no control over what comes in a Reply.
They should know, at least in general terms, the evidence that will come out. The parties should have exchanged draft Orders for what they are seeking, along with offers to settle. If the Respondent is seeking sole custody, primary residence, and spousal support based on an imputation, the Applicant should be able to predict the evidentiary foundations of the Respondent's positions on those issues.

By having a reasonable guess as to what the Respondent's evidence will be, you can address it first. Respondent wants sole custody because of abuse? Bring evidence about the circumstances, or whether it occurred, witnesses who can downplay the situation, et cetera.

Quote:
if they come in on an emergency ex-parte motion a whole new level of expectations are put on the applicant by the court.
I am speaking generally about the conduct of the trial. Ex parte motions should be rare and only occurring in special circumstances.

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I don't find many people rely upon the "theory of the case" these days.
If a lawyer cannot articulate a theory of the case on each issue in advance of the trial they are either not prepared or they are incompetent.

Quote:
Family law litigants often confuse "facts" with "truth". Even lawyers too.
The push for ADR has done a lot of good work in bringing families to resolutions outside of court. The downside has been that trials are rare in family cases. I call this a downside, because there is a significant proportion of family lawyers - including those with a decade or more of experience - who have never conducted a trial.

The backdrop to every negotiation needs to be "what happens if we do not settle". The answer is that everyone will spend a lot of money and a judge will make the decision. Instead of going the long route it is important to consider what that decision is likely to be, and allowing negotiations to be influenced by it when there is otherwise an impasse.

If the lawyers try to be social workers instead of barristers they risk getting caught up as cheerleaders rather than acting as counsels.
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