Dean Tong -- Legal Blackmail in the Courtroom

LEGAL BLACKMAIL IN THE COURTROOM

by Dean Tong, MSc.
July 14, 2007
NewsWithViews.com

It's the new wave in family court and it consists of attorneys coaxing their clients into accepting out-of-court settlement agreements. For example, you've been accused of sexually abusing your four year-old daughter but you have neither the resources nor dream team to extinguish the fire. So, to "scratch your own back," as well as that of adverse counsel, the Guardin-Ad-Litem, and the Court (to preserve precious judicial economy), your "best damn lawyer in this city" attorney cajoles you into signing away your rights, your day in court, and your ability to create a record for which you could appeal should you lose a protracted trial, so that you can establish immediate supervised contact with the alleged child victim. Of course, you're inking your john hancock because you haven't seen your kid in five months and you know of no legal way to clear your good name.

The caveat is, as soon as you "sign on the dotted line and consent to this form of legal blackmail" you cannot visit with said child unsupervised until the kid's therapist says you can do so. Oh, and one other thing; The Judge who is signing off and conforming his signature to this settlement agreement thereby making it a court order, will not in writing make a finding of fact and conclusion of law the sexual child abuse allegations are unfounded or false. Thus, in agreeing to this lunacy, you, the accused, are still open season to victimization (to be falsely accused, again) in the future.

Here's another example and it happens to be a current client's case of mine from Alaska. My client's wife is divorcing him in Anchorage and within the contentious litigation she's accused him of being nefarious and abusive because he owns a bevy of guns and has verbally abused her. Of course, there's no physical proof or evidence to support her claims but a judge, ex parte, signed off on a restraining order against my client, which has since been vacated. The court appointed custody evaluator has bought mother's story hook, line and sinker and thinks my client is still abusive and has recommended my client receive no more than disneyland dad visitation rights upon final court order.

Within his report to the court the evaluating psychologist labelled my client narcissistic because he informed the shrink during the clinical interview he was going to report the judge for biases against him and lead a father's rights crusade in Alaska. My client's attorney thinks he is getting a good deal and should immediately bypass an acrimonious trial by agreeing de novo to the psychologist's recommendations. In essence, father would be foregoing his right to clear his name and impeach the evaluator at trial. I've told him that not all experts are created equal, but it's up to him to make the financial investment if he wants to garner normal parenting time rights with his son. To do so, he would first need to take and pass a bevy of abuse profile-related tests from one expert and then retain another to impugn the custody evaluator's methodologies and shortcomings in his evaluation report.

And this leads me to my assessment of many (not all) family court attorneys who profess to be pit bull litigators in bitter child custody cases. I work with family court lawyers all the time who are lazy, naive, unwitting, and unwilling to litigate. They hate doing depositions, filing requests for admissions and propounded interrogatories, and especially loathe working with experts at pre-trial and at trial.

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Attorneys have a sworn legal obligation to litigate (not mediate) in their client's best interest. Yes, I know the rules of family law procedure require first that mediation be 'attempted' in these custody cases. Yet, in many of these cases the adverse litigant suffers from an undiagnosed and untreated Borderline Personality Disorder - BPD and because she doesn't see gray is incapable of smoking the peace pipe. Of course, if you (and your attorney) give her what she desires at pre-trial via settlement and allow for a fatherectomy to happen, then perhaps you deserve what is coming to you.

One gets as much justice as one can afford. Custody court is no fun and it is expensive. It's bloody and oftentimes comes down to a battle of the experts. But you only get one bite at the legal apple. So make the most of it for you and your kids and do your homework beforehand, and well before your attorney decides to throw in the towel on your rights and the rights to your children.

Dean Tong, forensic trial consultant, is author of the critically acclaimed book Elusive Innocence: Survival Guide for the Falsely Accused. Retained by parents and attorneys in contested divorces, child custody and abuse cases from 45 states and Canada, Tong has most recently appeared on CBS 48 Hours, CNN, Court-TV, MSNBC, and Dr. Phil.