November 12, 2014
Last week’s installment covered how to counsel your clients when working with third-party evaluators such as custody evaluators or guardians ad litem. This week, we have practice tips specifically for attorneys working in these circumstances.
The first of these practice tips is to understand the role of the evaluator. That is, you must understand that this individual is expected to be neutral in the conflict, and will not “take sides.”
That being said, this doesn’t mean that you shouldn’t try to make your case to the evaluator. Indeed, in many situations, the evaluator effectively has as much influence in the case as the judge – sometimes more. As such, you would do well to attempt to exert some kind of influence. The rub is that, where a judge expects attorneys to baldly advocate for his or her client, the evaluator will, in all likelihood, react quite negatively to such efforts.
That doesn’t mean that you shouldn’t do it; it means that you have to do it in a very particular manner.
And the essence of “very particular manner” is presentation. This includes molding how you, your client, and the nature of your client’s case appear to the evaluator; but it also includes how facts and information are presented as well.
The first part – how you appear to the evaluator – is all about what the evaluator thinks about your client and his or her case. You want the evaluator to believe that your client is primarily motivated by serving the children’s best interests – and hopefully, s/he actually is. The evaluator is trained to detect ulterior motives on the part of the parents, so make sure that you have your case framed around the children’s best interests ahead of time.
On a more concrete level, there are some practical things that you can do to present the best possible face to the evaluator.
First, be prompt about getting back to the evaluator, be it with phone calls or emails, or with requests for documents or other information. Prompt communication tells the evaluator that you – and, by extension, your client – are taking the case seriously, which may be a reflection of your client’s dedication to being a good parent.
At the same time, though, be mindful of how often either you or your client contacts the evaluator. More specifically, do not contact him or her too often. Too many phone calls or emails from either you or your client could easily be construed as attempts to influence him or her; likewise, raising too many concerns may make you or your client appear frivolous and the concerns trivial.
Also, always be cooperative with the evaluator. Even if a request seems unreasonable to you, or if your client disagrees with it, you should still comply with it unless the request is so unreasonable that you believe that it should be brought to the court’s attention. However, exercise this option with caution, since a failure to convince the court of the request’s unreasonableness (or even a successful attempt) may sour relations with the evaluator that it may negatively influence the report’s outcome.
Now, as to the second part – how facts and information are presented – there is one thing to always keep in mind: do not lie to the evaluator, and make sure that your client does not lie, either. And this includes lies by omission. The evaluator’s investigation is typically very thorough, and any deception or omissions will likely be exposed during the course of the investigation – which won’t make your client look very good.
What you should do is emphasize those facts that are beneficial to your client’s case, while downplaying those adverse ones. The easiest way to do this is to put those detrimental facts into a context that may make them appear far less negative to your client’s case (or may even make them appear positively).
One other thing to keep in mind about what you present to the evaluator: there are no rules of evidence governing what can be shown to the evaluator. So in other words, you can show documents and provide testimony to the evaluator – who may then rely on this information in making the report for the court – that would never be able to get in front of a judge. Obviously, this is something of a sore point for many attorneys, since the presence of an evaluator allows the rules of evidence to be completely bypassed. At the same time, you can also use this aspect to your advantage, and provide testimony to support your client that may not stand up to the rigorous standards of the rules of evidence.
On a final note, there is one overarching principle to keep in mind when dealing with either custody evaluators or guardians ad litem: they are investigating into what’s in the children’s best interests. You and your client’s goals should be aligned to the same thing – and this should be apparent to the evaluator.