"The Family Law Evidence Handbook: Rules and Procedures for Effective Advocacy"

I am excited to announce the publication of my new book,"The Family Law Evidence Handbook: Rules and Procedures for Effective Advocacy," published by the ABA. 

I wrote this book as a true trial handbook: a quick counsel table reference for matrimonial trial lawyers. The goal of the book is "how to get it in and how to keep it out." While the book relies mainly on the Federal Rules of Evidence, many states (including Illinois) follow them closely if not exactly.

The topics I cover in the book include:

Chapter 1    Trial Process and Procedure
Chapter 2    The Fundamentals of Evidence
Chapter 3    Relevance
Chapter 4    Evidence of Character and Habit
Chapter 5    Other Miscellaneous Relevancy Issues
Chapter 6    Hearsay
Chapter 7    Hearsay Exceptions
Chapter 8    Judicial Notice and Presumptions
Chapter 9    Authentication of Writings and Other Tangible Evidence
Chapter 10  Original Writing Rule and Rule of Completeness
Chapter 11  Competency of Witnesses
Chapter 12  Evidentiary Privileges
Chapter 13  Expert Witnesses
Chapter 14  Examination of Witnesses
Chapter 15  Tendering Exhibits, Objections, and Offers of Proof
Chapter 16  Procedures for Streamlining Admission of Evidence

Helpful information includes the procedure to admit social media, such as Facebook pages, websites and other digital evidence. Oklahoma lawyer and  expert on electronic evidence, Joe Howie, noted about the book, "I've read countless articles and blog posts on e-discovery and sat through many a webinar and live presentation on electronic evidence but nobody has done as good a job of offering practical advice on how to authenticate and use electronic evidence...Peskind's handbook demystifies actually using electronic evidence at trial."   

As I state in my introduction, "Judges identify lawyers who can try cases well, and appreciate their skill. And good settlements come from superior trial skills. A lawyer who knows how to try a case can often secure a better settlement than the lawyer who is less comfortable in the courtroom. Lawyers who do not recognize their limitations will try cases unsuccessfully against opponents who know the rules and can apply them. It is axiomatic, but knowledge is power. This book is the starting point for lawyers pursuing excellence in family law trial advocacy."

 
Click here to purchase copies from the ABA store:

Why Family Law?

Clients often ask me, incredulously, how can you do what you do? My typical response is that I am not getting a divorce, so it doesn't affect me the same way it does them. Regardless, they still sometimes suspect that I may be a masochist for choosing to work in an area as emotional as family law.

Why do I do it? I marvel at the human condition: I am fascinated by the intersection of law and society, dwelling largely in family court. We live in an era that is redefining the nature of the family, parenthood, and people's rights of access to children. No other area of law allows you to see society literally recreating itself daily.

Through my work, I've observed heroes and scoundrels and have seen the response they each elicit from the legal system. I've seen the graciousness of some juxtaposed by the pettiness of others. I don't need to read Shakespeare to understand human drama; it is played out before me in every case I have. I thrive on helping people through the difficulties of divorce, focusing them on positive aspects of their life rather than dwelling on their temporary misery. There are few rewards as great as helping those in pain survive their ordeal and ultimately flourish.

Undoubtedly, I see sadness and loss, despair and frustration. But I also see healing and growth, hope and contentment. Family law gives me the opportunity not only to witness the multifaceted human experience, but to shape it as well. This is why I am a family lawyer.

10 Things a Divorce Lawyer Should Know About Appeals

Appeals are complex, and preparation starts far before the trial ends. On February 13, Peskind Law Firm is presenting a free lunchtime seminar addressing strategies and techniques that can make the process less confusing, more efficient, and ultimately more successful. "10 Things a Divorce Lawyer Needs to Know About Appeals" will discuss:

• Offers of proof
• Preserving the record- facts;
• Preserving the record- arguments;
• Post-trial motions;
• Final orders;
• Interlocutory appeals;
• Standards of review;
• Exhibit organization;
• Appellate fees; and,
• Overall strategies and rules

Issues in Transgender Family Law

A transgender person may find it difficult when it comes time to get married or divorced. Most laws do not take into account the identity of a transgender person.  A person’s identity can play a large role in the world of family law. 

Ultimately, the validity of a transgender’s marriage is viewed in relation to each state’s recognition of same sex marriage. While Illinois recognizes civil unions, the state does not recognize marriage between parties of the same sex. Those marriages are considered “prohibited” and thus invalid.

Therefore, for purposes of entering into a marriage, a transgender person must discover whether they are considered, legally, their pre-transition sex or post-transition sex.

In some states, courts have upheld post-transition marriages where a different-sex spouse legally changed his/her sex and then married his/her different-sex partner. In these cases, the courts acknowledged that the person is able to legally change their gender and therefore able to marry a person that would otherwise be of the same sex. In opposite, some states have concluded that a person’s birth sex is unchangeable and therefore a post-transition person cannot marry a person who originally was the same sex. Illinois edged closer to this second line of reasoning in 2005 with the Illinois Appellate Court’s decision in In re Marriage of Simmons.  In Simmons the court invalidated a marriage entered into between a transgender male and female. The court found the husband was legally female.  In its decision, the Court did mention that the husband had not undergone a “full” transition, leading to the conclusion that the court may have found the marriage valid had their been a full transition.

-Emily Rapp

If I Were King Part II

If I were king, I would change the law that prohibits a judge from granting time-limited maintenance. Under the current scheme, a trial judge may not order maintenance for a term certain; rather, all awards are subject to a review and/or modification.

Philosophically, I am a judicial discretionist. I generally believe that it is best to give judges flexibility in crafting fair solutions. And each case is unique. Many times it would make sense, for example in a short marriage, to grant one or two years of maintenance without keeping the door open for extensions down the road. Or, what about the situation where the husband has been paying for ten years and the judge really doesn’t want to end it outright but wants to give the ex-wife a lump sum payout instead? Theoretically, under the current scheme, the trial judge may not do this and must keep the maintenance open-ended.

For the most part we are blessed with smart and fair judges.  Don’t tie their hands. Give them the power to do the right thing, and they usually will. And when they don’t, that’s why we have appellate courts.

Lawyers

"True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures- unless as amateurs for our own amusement. There is little of all that we do that the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state."

- John W. Davis

Conflict Diagnostics and Improving Kane County Family Court

Ron Ramer (a trained mediator and educator) and I spent the past several years developing a program to help Kane County family court work more efficiently and concentrate resources where needed. We pitched the program to the Kane County Bar Association family law committee. Unfortunately the committee rejected this concept, largely because of a few vocal opponents to change; but it really is an idea worth exploring.

Here is how the program would work. The parties and their attorneys would meet with a facilitator early in the case and the facilitator would “diagnose” the level of conflict. The facilitator would categorize the conflict as follows:

 

•    Low conflict: the parties were amicable and could agree on the most of the issue
•    Medium conflict: the parties were reasonable and while no agreement was imminent, mediation or negotiation would likely conclude the case
•    High conflict: For any number of reasons, the case was   volatile, very contentious and would need ample court resources

The facilitator, after diagnosing the conflict, would report to the trial judge who could better allocate resources to those in the high conflict range. The added benefit of the program is that the court could insist that the low conflict cases conclude more quickly, freeing up resources to concentrate on the higher conflict families.   By freeing up space on the docket, the court could micromanage the high conflict cases and move those cases through the system more promptly. Children are victims of their parent’s conflict, and accelerating the process will help these children start healing sooner.

It is too bad that the KCBA family law committee did not recognize the importance of this worthy goal.  I am working on article that will discuss this concept in more detail.