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Economic Relief for Immigrant Victims

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Economic Relief for Immigrant Victims Powered By Docstoc
					Effective
Representation of
Immigrant Victims
ADVANCED FAMILY LAW
TRAINING
LEXINGTON, KENTUCKY
NOVEMBER, 2007
                      1
Immigration Status: The
Layers of Intersection


Kavitha Sreeharsha, Esq. and
Judge Lora Livingston

                               2
       Overview of Materials
 CD-Rom
 Manual




                               3
     Learning Objectives:

By the end of this segment, you will be better able
  to:
 Respond to issues abusers raise in custody cases
  involving immigrant survivors.
 Discuss the types and varied forms of relief that
  are available for and obtained from the courts to
  meet the needs of battered immigrants.


                                                  4
Remember to argue the following
issues to the Judge
 1. DISCOVERY:
 Responding to arguments that:
     (a) she is using this case to gain immigration status and
     (b) requests for copies of her immigration documents.

 2. JURISDICTIONAL ISSUES:
    JURISDICTION AND REPORTING TO DHS
     Whether I have jurisdiction to decide this case because of her immigration status and whether I
      should be reporting her to DHS (ICE)

 3. CHILDREN: BEST INTEREST OF THE CHILDREN
 ARGUMENTS
 What if anything immigration status have to do with the best interest determination for
 custody purposes.



                                                                                                        5
Instructions for Courtroom Skit
Exercise
   Your team will be paired up with another team to
    prepare arguments for one of the three identified issues
    that the Judge would like briefed
   You will be assigned as “counsel” for either the
    survivor or the abuser
   While in your breakout sessions, you will have 10 minutes
    to brainstorm, outline your argument, and select a group
    representative who will make the arguments to the Court.


                                                            6
Instructions for Courtroom Skit (cont’d)
   Please return to the room in 10 minutes;
   The group representatives are to report to the front of the room (see Laura
    Martinez if you are representing the Survivor or Sonia Parras if you are
    representing the Abuser)
   Each representative will have a maximum of 5 minutes to make their oral
    arguments
   After arguments the judge will issue a ruling.




                                                                                  7
Myth: No Jurisdiction for Non-Citizen
Victim To Bring Family Court Case
   Immigration status not relevant to establishing
    jurisdiction in family court cases. Basis for
    jurisdiction is:
               order case – domestic violence crime
     Protection
      committed in state or victim needs protection in
      state



                                                         8
Jurisdictional basis
    Protection Order
    Divorce case – residency of party in state
        Legalimmigration status not required to establish
        residency under state family laws
    Custody case – home state of children under
     (UCCJEA and Federal PKPA)
    Child support case – where child or non-
     custodial parent lives


                                                        9
Equal Protection and Due Process

 Denying access to the courts to immigrants on
  immigration status grounds violates equal
  protection and due process
 Under constitutional law immigrants can be
  sued and bring suit in U.S. courts




                                                  10
    Urging Courts to be Wary of Becoming
    a Tool of Immigration Related Abuse

 Courts should be wary any time a party raises
  the immigration status of the opposing party in a
  family case
 Parties may choose to raise issues regarding their
  own immigration status in a court case




                                                  11
Examples of when raising immigration
status may be part of pattern of abuse
   One party raises immigration status of the
    opposing party to
     Prevent the court from having jurisdiction
     Gain advantage in a custody case
     Undermine the opposing party’s credibility
     Exert power and control to gain advantage in
      settlement or mediation


                                                     12
Examples of when a party may raise
their own immigration status
    In a custody or divorce case to explain:
        How their inability to work is tied to their spouse’s immigration related
         abuse
        To explain the need for child support, alimony or maintenance
    In a custody or child abuse case to demonstrate why they may
     not have accessed public benefits
    To explain how threats of deportation prevented them from
     leaving an abuser who controlled her immigration status and
     that her actions should not be deemed failure to protect




                                                                               13
Myth: A State Court Ruling Will Confer An
Immigration Benefit On The Victim
  IIRAIRA 1996 ended the ability of state court
   judges’ decisions to determine outcomes in
   immigration cases
  State court findings of residency for family court
   purposes will not affect an immigration case in any
   way.
  Granting a protection order or other family or
   criminal court relief to an immigrant victim will not
   give her immigration status she would not otherwise
   qualify for.
  All forms of immigration status’ open to victim
   require proof of multiple issues of which abuse or
   the crime is only one
                                                      14
Why judges should not force immigrant
women to disclose immigration status
 Object   as to relevance.
  Her  status does not preclude her from
   accessing the court.
  Respondent already knows her
   immigration status, so how is it relevant?


                                            15
TAKE THE        5th


 Advocate should instruct client re: 5th
  amendment rights
 Determine whether to use lack of status to
  demonstrate another form of abuse.
 Cross-examine batterer as to why he did not
  petition for her to gain immigration status.


                                             16
       Nullity: Tool Used by Batterers

   Batterers can do any of the following:
    - Believe nullity will prevent victims from
    obtaining immigration status
    - Use nullity to prevent victims from economic
    relief
    - Attempt to connect marriage with victim
    obtaining immigration status

                                                     17
Child Custody




                18
Immigration Related Abuse and
Fear of Losing Custody
 1st and 3rd most reported reasons that immigrant
  victims stay with abusers
 Victims believe if they seek help the abuser will
  have them deported and cut them off from
  access to their children




                                                  19
ABA Center on Children and the
Law -- Position
   “Batterers whose victims are immigrant parents
    use threats of deportation to avoid criminal
    prosecution for battering and to shift the focus
    of family court proceedings away from their
    violent acts…When the judicial system
    condones these tactics, children suffer.”



                                                       20
ABA Center on Children and the
Law -- Position
   “Parties should not be able to raise, and courts
    should not consider, immigration status of
    domestic violence victims and their children in
    civil protection order, custody, divorce or child
    support proceedings.”




                                                        21
ABA Position Continued
   “This … will ensure that children of immigrant
    domestic violence victims will benefit from
    …laws (like presumptions against awarding
    custody or unsupervised visitation to batterers)
    in the same manner as all other children.”




                                                       22
Facts
  Safety of children is promoted by awarding
   custody to non-abusive parent without regard
   to the parent’s immigration status.
  Many immigrant victims who come to courts
   for help will today qualify for legal
   immigration status through VAWA or the U
   visa but they may not know it.


                                              23
Best Interest Arguments
 The desires of the child
 The emotional and physical need of the child
  now and in the future
 The emotional and physical danger of the child
  now and in the future
 The parental abilities of the individuals seeking
  custody
 The plans for the child by these individuals.

                                                 24
Best Interest Arguments Continued
       The programs available to assist these individuals
        to promote the best interest of the child.
       The stability of the home or proposed placement.
       The acts or omissions by the parent which may
        indicate that the existing parent-child relationship
        is not a proper one.
       Any excuse for the acts or omission by the
        parents.




                                                               25
Effective Responses: If Battered
Immigrant Client is VAWA Eligible
 Consider turning his raising immigration status
  around against him
 Demonstrate that she does not have legal
  immigration status because he never filed
  immigration papers for her




                                                    26
Effective Responses Continued:
 Her lack of status is part of his power and
  control
 Provide the court with data on immigration
  related abuse and its lethality




                                                27
Litigation Preparation
     Prior to litigating any custody case or protection order case
      in which the abuser is likely to contest custody or raise
      immigration issues.
     Determine if client is eligible for any immigration relief due
      to the domestic violence.
          VAWA Self-petition
          VAWA cancellation
          U Visa




                                                                       28
Cross-Examination of the Abuser
   Cross examine abuser regarding use of
    immigration status to control victim.

   Determine if safe to discuss VAWA immigration
    relief in court
     Clientneeds to decide to breach VAWA
      confidentiality


                                               29
Call An Immigration Lawyer as an
Expert Witness
   To explain to the court VAWA immigration relief
   Provide summary of facts of the case so that attorney
    can explain that client is VAWA or U visa eligible
   Have them explain the process of VAWA and U
    applications
   What immigration relief is provided




                                                            30
Myth: Immigration status is relevant to custody
case because immigrant victim will flee the
country with the children
   Lack of legal immigration status does not mean
    deportation is eminent
   Legal immigrants and naturalized citizens are more
    likely to flee with children when
     There have been threats
     They are dual nationals
     They have the ability to travel freely to and from the US




                                                                  31
Court Should Treat This As Any Other
Case In Which a Threat of Child
Kidnapping is Alleged
   Rather than allow evidence of immigration status
    require proof of potential flight with evidence of the
    victim’s:
     Connections   to the US
     Connections to the home country
     Plans to leave
     Whether she has purchased airline tickets
     Whether her deportation is imminent




                                                       32
Proactive strategies
   Focus on the same factors as in any other
    custody case
     Client as primary caregiver
     Role of language and culture
     Child’s best interests
     Harm to child of awarding custody to an abuser




                                                       33
Proactive Strategies continued
     Request  from the court to include
      provisions for children to live abroad in
      case of mother being removed.
     Request from the court that abuser be
      ordered to not contact:
        immigration authorities
        other government officials

        about the petitioner

        absent permission of the court



                                                  34
Proactive strategies continued--Use of expert
witness-psychologist
   Explanations of:
     cultural   issues, customs, leaving children
      behind
     why there was a delay in bringing the children
      here
     why placement with non-abusive parent is in the
      best interest of the children


                                                     35
Race, Socioeconomics and
         Culture
  Kavitha Sreeharsha, Esq. and
        Dr. Giselle Hass



                                 36
The Puzzle is:
How, where, and when diversity
 considerations may apply?
How do we exactly identify the situations in
 which diversity factors make a difference?
Once such situation is identified, what are we
 supposed to do?
How do we actually incorporate this
 information and where?

                                                 37
Issues of diversity may require
accommodations
 - in usual procedures
 - in attitude
 - in case strategy
 - in the depth and extent of interventions
 - in the need for creativity in interventions



                                                 38
Issues of Diversity
       of diversity provide alternative
 Issues
 explanations that need to be
 considered and integrated
          immigration, expectations, values,
     i.e.:
      financial need, etc.



                                               39
DEVELOPMENT OF
CULTURAL COMPETENCE
   What do I need to have a culturally
    competent practice?

   Need of adequate knowledge, attitude, skills
    and the tools.




                                               40
Knowledge
 Specialized knowledge in the issues that matter
  to our clients: immigration, protection orders,
  etc.
 Specialized knowledge in the issues that affect
  them politically, socially, in their community.
 Specialized knowledge in the basic cultural
  values, traditions, interpersonal dynamics,
  priorities in life.
                                                    41
Attitude
   ESTABLISHING A POSITIVE CLIMATE

   NON- JUDGMENTAL ATTITUDE

   ALLOWING THE CLIENTS TO BE THE
    EXPERT OF THEIR OWN EXPERIENCE


                                      42
Skills
   Have the know how

   Use of a holistic model of work

   Work to learn and be updated regarding
    developments in your field


                                             43
Tools
 Language skills, translators, forms in the
  language of the client, language and culture
  competent team members
 Accessible settings, ability to refer to adjunct
  services,




                                                     44
The Person in Culture Interview

   Allows the professional to follow the flow of
    the client and describe their personal
    experience in their own words.



   [Handout]


                                                    45
Integration of Factors

   Integration of racial, cultural and socio economic factors
    proceeds by considering how these factors explain some
    or all of the client’s problems, coping strategies, attitudes,
    and behaviors. This data is weighed among competing
    hypothesis, and integrated into a meaningful, theoretically
    consistent understanding of the case and strategy
    development



                                                                 46
INTERVIEWING CLIENTS IN THEIR
NON-NATIVE LANGUAGE
[Handout]




                                47
 YOUR EXPERT: HOW TO
 FIND, WORK WITH AND
 PAY FOR THEM
NATIONAL NETWORK TO END
VIOLENCE AGAINST IMMIGRANT
WOMEN CONFERENCE
Lexington, Kentucky
November 14-16, 2007
                             48
Objectives

   Participants will learn to develop expertise in
    finding a suitable expert, learning from the
    expert and how the expert and the lawyer can
    prepare each other for trial




                        Network Conference 11/07      49
                                                           49
What kind of expert do you have?
   The dangerous expert
   The hired gun
   The professional expert
    The novice expert
   The expert of convenience
   The accidental expert

                    Network Conference 11/07   50
                                                    50
How to find your expert


 Where they are and how much they charge
 How to evaluate the relevance of the expert’s
  experience and credentials
 Resources in your community
 How to create and mentor your team of
  experts

                     Network Conference 11/07     51
                                                       51
How to work with your expert

   How to use questions to guide the report

   Ingredients of the best report/ what to look
    for
    Assessing the quality of a psychological
    testing report:
    www.ethicsresearch.com/forms
                       Network Conference 11/07    52
                                                        52
How to work with your expert


 How to protect your expert
 How experts prepare themselves to testify
 How you should prepare your expert to testify
  in direct and cross examination
 Evaluating and strategizing around your
  expert’s weaknesses

                     Network Conference 11/07     53
                                                       53
How to work with your expert

 How to handle your expert’s ego
 How to reign in an expert who is a loose
  cannon




                     Network Conference 11/07   54
                                                     54
Expert Testimony




   [Role-play of direct and cross examination
    with expert, audience participants and judge]
                        Network Conference 11/07    55
                                                         55
Feedback

   Q & A regarding previous exercise




                      Network Conference 11/07   56
                                                      56
The pros and cons of your expert
using visual aids and examples




               Network Conference 11/07   57
                                               57
The expert of the opposite party


 Evaluating the other expert’s experience and
  credentials
 Evaluating the other expert’s reports and
  opinions




                     Network Conference 11/07    58
                                                      58
Problem opinions

 Not favorable to your client
 Favorable to the other parent
 Use of test data for opinion
 Misperception of the DV
 Ignorance of the cultural and gender context
 Misconstruction of the immigration issue


                     Network Conference 11/07    59
                                                      59
PAYING FOR YOUR EXPERT

   GET A FULL ESTIMATE OF CHARGES -
    TRAVEL, HOTEL, FOOD, COST FOR
    CONDUCTING AND PREPARING
    PSYCHOLOGICAL, COST FOR TESTIFYING
   SUBMIT FOR APPROVAL
   LSC PROGRAMS HAVE LITIGATION
    BUDGETS



                                         60
                    Discovery, Evidence &
                    Preserving the Record
                    Judge Lora Livingston and
                    Ramona L. Natera, Esq.


November 12, 2007         Legal Momentum        61
Proving Your Case
   Discovery Techniques:
     Interrogatories
     Sworn Inventory
     Requests for production of documents
     Admissions
     Depositions
     Subpoenas/Duces Tecum




                                             62
Sworn Inventory

In Temporary Orders:
 Have parties agree to exchange by certain date:
   List all assets- community and separate; debts, real
    property, etc.
   List all other claims for reimbursement, economic
    contribution, etc



                                                           63
Interrogatories

   Check Rules of Civil Procedure for your State for the
    number allowed.
   Subparts count as one.
   Ask what you need to know:
     Who was their immigration attorney?
     When did they file immigration documents?
     What was filed?




                                                            64
Request for Production of
Documents
   Be specific but there is no limit on number.
   Analyze case:
     What   you are trying to prove?
   Request any and all immigration documents filed on
    behalf of client and any minor children.
     PetitionI-130 (Family-based immigration petition)
     K-Visa (Fiancé visa)
     I-864 Affidavit of Support




                                                          65
Request for Admissions

     Good way to determine what the disputed
  issues will be at trial
     Other party must either admit or deny or
  explain in detail why they cannot do either




                                                 66
Depositions

   Try to get discovery responses prior to deposition.
   Alternatively, you can depose early to lock them in to a
    specific case theory.
   Videotape or tape record to cut down on expenses.
      Also can try and demonstrate bad acts of opposing
       party
   Go into detail regarding history of abuse, immigration
    abuse, etc.


                                                           67
A protection order or discovery can
help a victim obtain needed
evidence:
                            Police, medical, and
 Marriage certificate       court documents about
                             the relationship
 Wedding/family
                            Copy of abuser’s green
  pictures
                             card or passport
 Birth certificates
 Love letters
 Copies of joint
  leases/utility bills
                                                      68
Protection order or discovery
continued

    School records              Children’s birth
    Medical records              certificates
                                 Letters and other mail
    Employment records           addressed to the victim
    Social security number       and to the abuser at the
     information                  same address
    Health insurance            Copy of I-130 petition


                                                        69
Presenting a case: Possible Sources
of Evidence and their Admission
   Judicial Findings of Domestic Violence
   Testimony of Lay Witnesses
   Testimony about Pattern of Abuse/Prior Bad Acts
   Expert Testimony
   Cross-Examining an Opposing (or “neutral”) Expert
   Photographs




                                                        70
Possible sources continued

   Tape Recordings of Phone Messages
   Writings Containing Threats
   Police Reports
   Receipt of Services from Domestic Violence Provider
   Medical Records
   Tangible Evidence
   Journal
   Demonstrations
   Bills and Receipts

                                                          71
Proof of Batterer’s Income
   Pay Stubs
   Bank statements
   Mortgage/rental documents
   Credit Card Statements
   Past employment records
   Income tax returns and W2’s
   Applications for lines of credit
   Credit Reports




                                       72
Proof of Batterer’s Income
 Proof of Assets – inventory, written or video
  and/or photographs of assets
 Testimony
 Affidavit of support filed with family-based
  immigration petition
 May need to use FOIA request




                                                  73
Dealing with Employers
   Employer’s Statement
   Employer’s Affidavit
   Obtain Withholding Order
   Obtain Medical Support Order
   Sanctions for noncompliance
     Casino   Magic Corp. v. King, 43 S.W.3d 14 (Tex.App.2001)




                                                                  74
What to do to protect your client
from Discovery
 File a motion to quash subpoena
 File motions for protection from discovery
 File motions to limit Discovery




                                               75
Preserving the Record
   OBJECT ON THE RECORD

   ARGUE BASIS OF OBJECTION

   HAVE JUDGE STATE LEGAL BASIS OF RULING

   OBJECT ON THE RECORD EVERY TIME A RULING
    IS MADE THAT YOU DISAGREE WITH



                                               76
Questions?




             77
                 Advanced Advocacy for Asset
                 and Property Division in
                 Family Law Cases Involving
                 Domestic Violence
Professor Margaret Drew, Esq.    Laura Martinez, Esq.
University of Cincinnati Law     Austin, TX
School
Cincinnati, OH
                   Lexington, Kentucky
                     November, 2007                     78
    The Importance of Pleadings

   In some jurisdictions, cannot be awarded unless
    pled for
   Can argue that award is “a just and right division” of
    the marital property
   Check rules to see when last date to amend is in your
    jurisdiction
   However- Remedies should be pursued ONLY if
    your client determines it is safe to do so!

                                                             79
       Checklist of Remedies

 Support: Child, Temp. Spousal, Alimony,
  Maintenance- Retro and Arrears
 Disproportionate Share of Property
 Reimbursement Claims
 Economic Contribution Claims
 Fraud on the Community


                                            80
                 Remedies

 Wasting of Assets
 Medical Insurance, Car Insurance, Life
  Insurance
 Support post divorce for beneficiaries of
  Petition I-130 (use of I-864 Affidavit of
  Support to demonstrate ability and intent to
  support long term).

                                                 81
                Pleadings

 Include request for finding of domestic
  violence
 Request disproportionate share of property
 Request award of marital home or
  disproportionate share of equity in home
 Request award of attorney’s fees



                                               82
           Pleadings (cont.)

 Make enhancement to Separate Property
  Claim and be able to trace funds if necessary
  (in community property states)
 Address property in home country
 Make constructive fraud claim (and join third
  parties) if necessary


                                                  83
Disproportionate Share Request

 Court may order an unequal division of the
  property
 Factors that the Court considers:
 Cruel treatment, adultery, fault in breakup, the
  spouse who gets custody, education and future
  employability of spouses, liabilities


                                                 84
 Disproportionate Share Factors

 Earning power and abilities of spouses
 Need for future support
 Wasting of community assets by the spouses
 Remedy for abuse suffered




                                               85
 Economic Contribution Claims

Is the dollar amount of:
1) the reduction of the principal amount of a
   debt secured by a lien on property owned
   before marriage
2) includes home equity loan incurred during
   marriage for capital improvements


                                                86
       Reimbursement Claims

1) payment by one marital estate of the
  unsecured liabilities of another marital estate
  (community property issue) and
2) inadequate compensation for the time, toil,
  talent, and effort of a spouse by a business
  entity under the control and direction of that
  spouse

                                                    87
     Nonreimbursable Claims

The Court may not recognize a party’s claim for
  reimbursement for:
1) payment of child support, alimony or spousal
  maintenance
2) living expenses of spouse or child of spouse
3) payment of liability of nominal amount
4) a student loan owed by spouse

                                                  88
Fraud on the Community/Marriage

Can involve a number of situations:
 Purchasing property during marriage but
  under another person’s name
 Join the third person as a party and as a co-
  conspirator to fraud on the marital estate
 Hiding assets



                                                  89
           Wasting of Assets

 Will often see this with addictive behavior
 Gambling
 Drinking and/or Drug Use
 Pornography
 Bad Investments
 Internet Matchmaking
 GET CREDIT CARD STATEMENTS!!

                                                90
                Tort Relief

 Legal Assistance to Victims (LAV) funds
  cannot be used for tort actions and advice
 Advise victim of statute of limitations to
  protect potential claims
 Refer to personal injury attorney if necessary




                                                   91
         Proving Your Case

 Interrogatories
 Request for Production of Documents
 Depositions
 Sworn Inventories
 Discovery Techniques
 Request for Admissions


                                        92
                        Pensions

   Valuing a Pension
   Drafting a QDRO
   Working with the Employer
   Special considerations regarding immigrant
    clients
     Request   a disproportionate share of interest accrued
   Some Types of Pension
     Defined Benefit
     Defined Contribution
     Government Pensions
                                                               93
               Pension Solutions
   Divide the pension equally between the parties
   Hire a pension evaluator
   Look for local pro bono assistance
   Submit the draft pension to the plan administrator
   Be aggressive in seeking all benefits possible under the
    plan
     E.g.  Inclusion for years before or after the marriage,
       survivor’s benefits and child support security



                                                                94
             Income Tax Issues
 Change of Address Notification
 Dependency Exemptions – Waiver Form
 Low Income Tax Credit
 Tax Losses
 Innocent Spouse
 Real Estate Transfers
 Alimony/Child Support
     Reportable and  Tax-Deductible
     Issues on Allocation of Support
                                        95
Immigrant Tax and Property Issues
Considerations

 Reporting Income
 Risks of Filing Jointly
 Including alimony as taxable income
 Income producing property liabilities
 Assets can come with liabilities -including tax
  consequences

                                                    96
       Most Cases Have Assets!

   Ability to Work/Good Health
   Vehicles
   Tax Withholding/Estimated Payments/Refunds
   Personal and Real Property
   Cash Surrender Value
   Frequent Flyer points
   Future Inheritance
   The Gift of Time

                                                 97
Economic Remedies for Contempt

 Reimburse Custodial Parent when visitation
  does not occur as agreed upon or ordered
 Financial Sanctions
 Attorney’s Fees
 Failure to pay timely support – request
  compensation for all of your client’s harm
 Appeal


                                               98
            THANK YOU

 Margaret Drew 513-556-0193
 mbdrew@socialaw.com;
  margaret.drew@uc.edu

 Laura Martinez 512-535-3322
 Lauramartinezlaw@gmail.com;
  www.lauramartinezlaw.com

                                99
Stretch Break
   4:15 p.m. - 4:20 p.m.




                            100
Negotiation and
Settlement
Prof. Margaret Drew
Leslye Orloff, Esq. and
Dr. Giselle Hass
November, 2007
                          101
There are always exceptions
 While the following cautions and suggestions
  apply in most cases, there are always exceptions.
 No advice is absolute. Nothing can substitute
  for your own good instincts.
 All negotiations must be conducted through the
  lens of safety.


                                                 102
Sometimes an Option?
   In theory, we like to think of settlement as an option for every
    case

   In most cases, the court and your client will want to know that
    negotiations were attempted

   Sometimes negotiations may not be realistic:
       Pro se litigants
       Language barriers- yours as well as a party’s
       Unavailable client
       Insufficient information with which to negotiate


                                                                       103
   A Parallel Process
In most cases negotiations and settlement drafting should take place along side
trial preparation.

Why?

 - Abuser behavior does not ordinarily lend itself to settlement, particularly in early
stages. Control over your client may be continued through the negotiations
process

-The attorney for the abuser may look to distract you from your trial preparation by
flooding you with settlement talks

-Often when you believe that you have reached an agreement, the abuser has “one”
more issue. Settlement may never come.


                                                                                   104
Cautions on Settlement Approaches

   Think about negotiating the agreement as an entire package.
    Agree to specific terms only with the caveat that you must reach
    agreement on all terms.

   Put the above caveat in writing, as well as the understanding that
    settlement negotiations are not admissible.




                                                                    105
More Cautions on Settlement Approaches

   You may want the settlement talks to be indirect in terms of your
    client. She should not be involved in direct communication with
    the abuser or his lawyer.
   Civil Protection Order considerations
   Separate out what is a valid settlement offer and what is the
    abuser’s attempt to communicate with your client in violation of
    a protective order.




                                                                  106
Boilerplate Can Hurt




   What may be accepted language in agreements
    between non-abusive couples could jeopardize the
    survivor of domestic violence.




                                                       107
EXAMPLES
  Waiver of alimony: Before your client waives rights to
   alimony, be sure that she has a complete understanding of
   the possible medical consequences of the physical abuse.
   For example, what are the long term health consequences
   of strangulation. Will your client have disability income
   should she be unable to work in the future.
  Is she able to work now pending resolution of any visa
   complications?
  What happens if she or her husband moves or is removed
   to another country?


                                                          108
EXAMPLES

  Release of all claims: Before your client waives all claims
   to sue the former partner, consider losses that may be
   present in domestic violence cases that are not present in
   non-domestic violence cases. For example, might there be
   injuries that are undetected due to physical trauma? Is
   your client at risk for HIV infection or other sexually
   transmitted diseases?
  There are special considerations when one party or both
   are immigrants, particularly if one is undocumented.


                                                           109
How Detailed Should the Terms Be?

    Often the terms of a domestic violence settlement
     agreement need much more detail than other agreements.
     For example, visitation arrangements might need to
     anticipate not only times of child pick up and drop off, but
     also when the visiting parent will not be allowed to see the
     children due to lateness.




                                                              110
Detailed Agreements
   Example: Any time that the father is scheduled to pick up
    the children for visitation, he shall due so within twenty
    minutes after the specified time or he shall forfeit that visit.
    For example, if the father is scheduled to pick up the
    children at 9:00 a.m., the children will no longer be
    available for visitation should the father have not picked
    them up by 9:20 a.m.

   Why else might the following sentence be inadequate in a
    visitation agreement? “The father shall pick up the
    children for visitation each and every Saturday at 9:00 a.m.
    and return them at 5 p.m.”


                                                                  111
Can Partial Settlements Work?
   Some courts will allow the parties to settle some issues and try others.

   For example, you might reach agreement on property division and try the
    custody aspect.
   Risk: Have you anticipated all of your client’s needs. For example, if you
    agree to sale of the house, will your client be able to provide adequate housing
    should she be awarded custody? Have you given away any bargaining power?
   If your client is working illegally will she be able to rent an apartment without
    the cooperation of the spouse?
   Benefit: Cost saving in reduction of trial time. Your client may feel safer going
    into trial if the other party perceives some issues as having been resolved in his
    favor.
   Is partial settlement consistent with the theory of your case?
   Partial settlements work best when you have anticipated a partial settlement
    well in advance of negotiations beginning.



                                                                                   112
Who Drafts?
   Does it matter?

   If you are reviewing a settlement agreement the morning trial is to start, then
    you are at an advantage if you have drafted the agreement. You will know the
    terms by heart and be less likely to overlook inept language or missing terms.

   If you are reviewing an agreement with an abundance of time to analyze the
    use of language, then it may be cost effective to have opposing counsel draft
    the agreement.

   Practice Tip: Develop a checklist of terms that you want in an agreement and
    a list of terms to avoid. Keep a copy in your briefcase.


                                                                                113
Drafting Tips

   Ask someone unfamiliar with the case to read the
    agreement. (Confidentiality issues will need to be
    considered.)

   Ask that reader to explain to you what each term means.

   Consider using examples in the body of the agreement.




                                                              114
Drafting Tips Continued
   Consider “speaking agreements” that explain why the
    parties agreed to certain terms. For example: “Because
    the father is solely responsible for the cost of the child’s
    health care and all uninsured medical expenses, the parties
    have decided that he may select the health insurance plan
    in which the child shall be enrolled.”

   Read the agreement out loud with your client. Not only
    will you pick up grammatical errors, but you will have the
    opportunity for your client to explain her understanding of
    the agreement. Often the lawyer will have time to change
    the language for greater precision and clarity.


                                                              115
Drafting Tips Continued
   Do not assume that what worked in one agreement will work in another.
    There are dangers in using a “form” agreement.

   Ask other lawyers to provide you with sample agreements.

   Be clear as to which parts of the agreement may be modified and what
    standard will be employed if a modification is sought.
   Have more than one translator read the agreement to verify the interpretation
    of the language. Consider executing a copy in the client’s native language.




                                                                              116
Drafting Tips Continued
   Be sure not to include any information that would subject your client to
    identity theft. For example, taxpayer identification numbers and bank
    account numbers should not be included in the agreement.

   If your client’s whereabouts is impounded, be sure that your agreement
    provides for alternative methods of communication in the event of an
    emergency and alternative methods for service of process or written notice.

   Financial disclosures should not be attached to the agreement.




                                                                               117
What happens if you discover a drafting error
after the agreement has been approved by the
Court?
   Notify all interested parties right away. This includes your client
    as well as opposing counsel.

   File with the Court whatever pleading is appropriate in order to
    correct the error.

   If possible, order tapes or transcripts of any prior hearings that
    might explain the original intent of the parties



                                                                      118
Protective Suggestions

   Keep careful notes of your settlement discussion both with
    opposing counsel and with your client.

   Your client or opposing counsel may later believe that a term
    was incorrectly drafted.

   It is helpful to be able to provide the context as to why a term
    reads the way it does.



                                                                       119
Protective Suggestions Continued
   Include clauses that indicate that the client had sufficient time to
    read and understand the agreement. If an interpreter is used, say
    so in the agreement.

   If the other party is pro se, be sure to include language as to
    which party that you represent. Include language that you
    specifically do not represent the other party.




                                                                      120
The Standard for Change
 Have you addressed what will be the standard
  for modification?
 Will different clauses have different standards?
 Should certain events that trigger a lower or
  higher standard?




                                                     121
Additional Cultural Considerations

   Have you addressed culturally significant events and
    dates in the agreement?
   Do you want to address alternative responsibilities
    depending upon whether or not your client obtains
    documentation?
   Have you addressed realistic penalties or remedies if the
    other party does not assist with your client’s visa or
    green card process?
   What are other significant immigration or cultural
    considerations important to your client-or the other
    party?
                                                          122
Thank You!


 MBDREW@SOCIALAW.COM
 MARGARET.DREW@UC.EDU
 LORLOFF@LEGALMOMENTUM.ORG




                             123
Your Client’s
Psychological State in
Strategy and
Negotiation
Dr. Giselle Hass



                     124
How to tell where your client is
psychologically:
   Objective: Lawyers will learn to understand
    where the client is psychologically in order to
    use this information to strategize successfully.




                                                       125
How to tell where your client is
psychologically:
  You   need to know your client better
          than she knows herself

 You   need to walk a half step ahead of
                your client

                                        126
Knowing Your Client
 Listen to your client
 Ask questions, ask the difficult questions
 Get descriptions
 Get a detailed history
 Obtain collateral information
 Carefully review records



                                               127
Identify the big issues

 Alcohol  or drug use
 Mental illness
 Mental retardation
 Prostitution




                          128
Identifying the Big Issues, cont.

         thoughts or actions
 Suicidal
 Homicidal thoughts or actions
 Criminal history
 Anger control
 Impulse control


                                    129
Personality Disorders

   History of interpersonal conflict

   History of having dealt poorly with problems

   Unwillingness to take responsibility for such
    issues
                                                    130
Identify where your client is on the
issues that matter to you
Custody:
  Acceptance   of children
  Parenting satisfaction
  Practical ability to care
                                       131
Risk assessment protocol
(National Center on Child Abuse and Neglect standards
of risk) [Handout]
   Caretaker influence:                      Intervention Influence:
      drug or alcohol use, previous             caregiver’s motivation and
        history of abuse, expectations             cooperation
        of child, acceptance of child,        Abuse/Maltreatment Influence:
        physical capacity to care,               perpetrator’s access, sense of
        mental capacity                            responsibility, severity of
   Child Influence:                               maltreatment, history of other
      Vulnerability, response to                  maltreatment
        caretaker, child’s behavior,
        mental health, physical health
   Family Influence:
      domestic violence, ability to
        cope with stress, social
        supports, living conditions,
        family identity and interactions

                                                                               132
Risk Assessment Protocol, cont.
   Domestic Violence:
     Exactly what the client has done to the offender
     First, worst and last episode
     Children involvement
     Use of weapons
     Maladaptive ways of dealing with the abuse




                                                         133
Identify vulnerabilities
 Find out exactly how much the client wants to
  correct the weak factors
 Help her find the resources to correct those
  issues
 Identify the issues that cannot be changed




                                                  134
Put it on the table
 Emphasize the strengths and educate your client
  about it
 Acknowledge the vulnerabilities and make a plan
  to work them in or work around them (directly or
    indirectly)
 Coach and use practice, observe gains
 Adjust your expectations
 Have a difficult conversation with your client
                                                   135
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