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ORGANIZING A TEXAS TORNADOAND HERDING ARMADILLOS:

HEARING AND WITNESS PREPARATION

LARRY L. MARTINGeary, Porter & Donovan, PC

16475 Dallas Parkway, Suite 400Addison, Texas 75001

THE HONORABLE CHRISTINE C. COLLIEASSOCIATE JUDGE

302nd Judicial District CourtGeorge L. Allen, Sr. Courts Building

600 Commerce StreetDallas, Texas 75202

State Bar of TexasFAMILY LAW BOOT CAMP -

PRACTICE IN THE TRENCHESAugust 5, 2007

San Antonio

CHAPTER 3

CURRICULUM VITAE

LARRY L. MARTINGEARY, PORTER & DONOVAN

A Professional CorporationOne Bent Tree Tower

16475 Dallas Parkway, Suite 400Addison, Texas 75001-6837

972/931-9901FAX: 972/931-9208

EDUCATION

B.A., University of Texas at Arlington (1983)J.D., cum laude, Southern Methodist University (1986)

PROFESSIONAL ASSOCIATIONS AND AWARDS

Member - State Bar of Texas - Family Law SectionMember - Dallas Bar Association - Family Law SectionAnnette Stewart American Inn of Court (Program Chairman 2005-07)Member, Texas Academy of Family Law SpecialistsMember - College of the State Bar of TexasFellow, American Academy of Matrimonial LawyersTexas Monthly “Super Lawyer” 2003Texas Monthly “Super Lawyer” 2004Texas Monthly “Super Lawyer” 2005Texas Monthly “Super Lawyer” 2006Texas Monthly “Super Lawyer” 2007

ACADEMIC ACTIVITIES AND HONORS

Member, Board of Editors, Southwestern Law Journal (1985-86)Member, Order of the CoifMember, National Order of Barristers

PUBLICATIONS AND CONTINUING LEGAL EDUCATION ACTIVITIES:

Co-Author - Marriage Dissolution Seminar:"Asset Valuation", 1993, reprinted in, Texas Family LawService Newsalert, Vol. V, Nos.5-6, Oct.-Dec., 1993

Author/Speaker - Dallas Bar Family Law Night:"Selected Recent Developments in Procedure and Discovery", 1993

Co-Author - 19th Annual Advanced Family Law Course: "Sophisticated Means of Dividing a Family Business", 1993

Co-Author/Speaker - A Focus on Family and Criminal Law:"Asset Valuation", 1993

Co-Author - 3rd Annual Advanced Family Law Drafting Course:"Written Discovery in Property Cases -- What You Love toDish Out and Hate to Receive", 1993

Author/Speaker - Dallas Bar Civil Discovery Evening CLE:"Discovery Update", 1994

Co-Author/Speaker - Houston Law Center’s Family Law PracticeSeminar: "Characterization and Tracing", October, 2001

Speaker - Pro Bono Family Law: Domestic Violence SeminarWaco, Texas, “Enforcement by Contempt” April, 2002

Speaker/Co-Author - Annette Stewart American Inn of Court: “Daubert and the Dallas Family Courts”, November 2003

Co-Author - Annette Stewart American Inn of Court: “Commonly Encountered Family Law Evidence Issues”, February2004

Speaker/Co-Author - Dallas CPA Society CPE Day: “An Overviewof Marital Property Law in Texas”, February, 2005

Co-Author and Panelist- 31st Annual Advanced Family LawCourse: ”Evidence and Discovery”, August, 2005

Speaker - Pro Bono Family Law Seminar: “Enforcement by Contempt”Waco, Texas, March, 2006

Speaker - Pro Bono Family Law Seminar: “Relocation”Marshall, Texas, May, 2007

PROFESSIONAL ACTIVITIES

Licensed by the Texas Supreme Court in 1986

Board Certified, Family Law 1996; Re-certified 2001, 2006

Organizing a Texas Tornado and Herding Armadillos: Hearing and Witness Preparation Chapter 3

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. OBTAINING A FAIR ADVANTAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Impersonate a Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Commit Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1C. Bring the Right Size Wrench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1D. Kill Them - With Professionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1E. Doing It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. TEMPORARY RESTRAINING ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. TROs Involving Third-Party Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. Requests for Protective Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Requests Materially Outside of the Texas FamilyPractice Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Defending Against a TRO Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2D. Expiration of TRO and Extending the TRO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2E. Standing Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. TEMPORARY ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. Temporary Orders in Divorce Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Temporary Orders in Modification Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3C. Preparation Step One – Who Are the Players? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3D. Preparation Step Two – Summary of Requested Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E. Forms of Temporary Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Monetary Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. Child-Related Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Use of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45. Discovery and Pretrial Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46. Exceptional Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

F. Preparation Step Three - Point List - Proof Outline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

V. KEY ASPECTS OF SUCCESSFUL PREPARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. Financial Information Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. A Budget for the Monied Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. Temporary Spousal Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5D. Interim Attorney*s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5E. Interim Fees in Modification Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6F. Temporary Use and Possession of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6G. Children*s Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Representing the Primary Caretaker vs. the Non-Primary Caretaker . . . . . . . . . . . . . . . . . . . . . . . . . . 7a. Joint decision-making rights and duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7b. Time over and above a Standard Possession Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7c. Keep the Other Parent “In the Loop”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

H. Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8I. Inventory Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8J. Psychological Evaluation and Social Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8K. Drug/Alcohol Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8L. Additional Requests for Temporary Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Counseling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82. Children with Special Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83. Accounting and Periodic Records Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


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4. Appointment of Amicus Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95. Interview with Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI. OBTAINING DOCUMENTS NEEDED FOR TEMPORARY HEARINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9A. Document Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9B. Retrieving Medical/Mental Health Records in Compliance with HIPAA . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII. WITNESS PREPARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10A. Client Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11B. Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11C. Lay Witness Interviews and Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

VIII. TEN SILVER BULLETS FROM THE BENCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IX. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


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ORGANIZING A TEXAS TORNADOAND HERDING ARMADILLOS:H E A R I N G A N D W I T N E S SPREPARATION

I. INTRODUCTIONThis article focuses on practical tips for temporary

hearing preparation and witness preparation. The authorswish to express their appreciation to Patricia N. Carter ofShort • Jenkins • Kamin LLP, for permission to useportions of the article she co-authored with Joan F.Jenkins entitled “Practical Preparation for TROHearings, Temporary Orders Hearings and Trial” whichwas presented at the 31st Annual Advanced Family LawCourse in August of 2005. The authors also wish toexpress their appreciation to Gary Nicholson forpermissions to use excerpts from his article entitled“Effective Preparation and Presentation of the FinalSAPCR Hearing - Conservatorship, Support andPossession Issues” presented at the 32nd Annual AdvanceFamily Law Course in August of 2006.

This article addresses temporary hearings. Neverunderestimate the importance of temporary hearings. Along established saying in family law is that “temporaryorders have a habit of becoming final orders.”

A typical family law client enters the lawyer’soffice, angry, overwhelmed, confused and hurt. Theclient’s life is often in chaos. The lawyer must sort outthe many issues to be addressed at the temporary hearingand determine the “key” issues. Once the issues are“nailed down”, the attorney must marshal evidence andprepare multiple witnesses. All of this must be donewithin a time period that can be as short as a few days.Failure to present one’s best case on very short notice candramatically undermine a client’s chances of ultimatesuccess in the final trial.

II. OBTAINING A FAIR ADVANTAGEA. Impersonate a Judge

Lawyers present their cases to judges. We have allheard the saying “know your audience.” Rarely is alawyer able to fully understand what it is like to be on theother side of the bench. To see things from the judge’sperspective is truly an eye-opening experience. Highschool, college, and law school mock trials provide aninvaluable opportunity for a family law attorney toexperience what it is like to be a judge. Volunteer. Youwill never regret the decision.

As a mock trial judge you will receive a packagecontaining substantial information about the case. Donot read it. Just scan it. In the real world, judges seldomhave time to study the pleadings prior to a hearing.Therefore, simply scan the mock trial packet. One willthen learn how difficult it is to step into a dispute as a

judge, not even knowing the names of all the players andhow they relate to each other. The experience of beinga mock trial judge makes clear the necessity of presentinga motion for temporary orders in a clear and concisefashion.

B. Commit LarcenyThere is nothing illegal about stealing good ideas

from experienced lawyers. Go to the courthouse. Askthe judges for the names of lawyers who know how to trya temporary hearing. Watch an experienced experthandle a temporary hearing. Make notes of tacticsbelieved to be particularly effective. Steal the goodideas.

C. Bring the Right Size WrenchThe Family Law Section annually publishes a

family law "tool kit." The tool kit contains charts for theRules of Evidence, child support and a host of othercommonly needed reference sources. Bring it with you.

D. Kill Them - With ProfessionalismBe impeccably honest. Be candid. Maintain

professional detachment. Show respect to the court andopposing counsel. Study and follow the Texas LawyersCreed – Appendix 1 to this paper.

E. Doing ItNow that you know what it is like to be a judge, and

have stolen all the good ideas that you can steal, it is timeto do it yourself.

III. TEMPORARY RESTRAINING ORDERSA. Overview

Family law cases often begin with temporaryrestraining orders (“TROs”). TROs are far morecommon in family law cases than in general civillitigation. Courts generally grant TROs on an ex partebasis, without the necessity of a hearing. In largercounties, the Associate Judge normally approves TROs.Inappropriate or extraordinary requests for TROs areeither re-worded by the Court or stricken altogether. Solong as one seeks only the basic requests for TROs statedin TEX.FAM.CODE § 6.501 and § 105.001, as well asthe Texas Family Practice Manual, one should have noneed for an affidavit. The Court commonly waives thebond. Exceptions to this procedure arise in situationswhere parties seek extraordinary relief, such as:

1. TROs Involving Third-Party EntitiesCourts often, and some commentators suggest

should, require affidavits for relief against third-partyentities. Notice will often be required, offering the third-party entity an opportunity to be heard briefly before theTRO is issued. A bond will be required. Your order


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must set out the bond requirement. The requesting partymust post the bond with the clerk of the court before theclerk issues the writ for injunctive relief. SeeTEX.R.CIV.P. 684.

2. Requests for Protective OrdersApplications for protective orders barring further

family violence may include a request that the Courtexclude an abusive spouse, ex parte, from the maritalhome (a “kickout” order). The Family Code requires thepresence of the applicant at the initial presentation of theapplication for ex parte protective order seeking a“kickout” order. TEX. FAM. CODE § 83.006(a). Therespondent has the opportunity to be heard later in a fullevidentiary hearing. The Court will set a date for theevidentiary hearing at the conclusion of the ex parterequest.

3. Requests Materially Outside of the TexasFamilyPractice ManualIn almost any situation where a request for

temporary restraint is unusual or may lead to permanentand unwarranted damage or delay (such as postponingthe closing on a real estate transaction, prohibiting thetransfer of funds from one individual to another or anattempt to restrain a parent from taking a child on a trip),the court will apply much more scrutiny than a standardfamily law TRO. Most courts require an affidavit in suchcircumstances.

The Court will likely focus on two issues whenpresented with such a TRO: 1) Will the TRO do moreharm than good; and 2) Should the Court grant the TROnow or can it defer the requested relief until thetemporary orders hearing when both parties participate?Tailor your presentation to the court to address theseissues. Present admissible documentary evidence of pastbehavior and specific sworn affidavits about threatenedactions.

B. AffidavitsWhile an affidavit in support of a TRO is not

necessary when the requested relief conforms withTEX.FAM.C0DE § 6.503 and § 105.001(b), in specialinstances, such as those set out above, counsel seekingthe TRO should support the request with a strongaffidavit.

A question exists as to whether Family CodeSections 6.501-6.503 and 105.001(b) permit "non-standard” TROs of virtually any nature without anaffidavit and without compliance with TEX.R.CIV.P.680. The safer course of action is to prepare an affidavitand attempt to comply with Rule 680. Thus, an affidavitsupporting requests for extraordinary relief should statespecific facts showing that immediate and irreparableinjury, loss, or damage will result before notice can be

served and a hearing can be held. In cases involvingchildren, the Family Code specifically requires affidavitsfor the following relief:

• attaching the body of a child;• taking the child into the possession of the court or of

a person designated by the court; or• excluding a parent from possession of or access to

a child.

TEX.FAM.CODE § 105.001(c). The Family Code alsorequires an affidavit when a party seeks an ex parteprotective order. TEX.FAM.C0DE § 83.006. Such anaffidavit must provide a detailed description of the factsand circumstances.

C. Defending Against a TRO RequestIn defending against a request for a temporary

restraining order seeking non-standard relief, one shouldseek to demonstrate that no restraint is necessary. Thisis a difficult burden, especially where the welfare of achild is at issue, family violence is alleged or therequested relief bars patently inappropriate behavior(such as the transfer of funds from a children*s trust forimproper purposes or the purchase of a home withpresumed community funds for a girlfriend).

Defending against the imposition of a TRO can beparticularly difficult because the first notice may be thejudge calling you to drop everything and come to courtinstanter. Contact your client. If your client isunavailable, seek permission to delay the relief or toallow your client to testify by phone.

Whether requesting a TRO or defending against arequest for TRO, the object is to “buy time” by blocking,at least temporarily, the bad action your client fears or,conversely, blocking the imposition of a restraint on yourclient*s presumed or intended actions. Remember, these‘hearings* will often be impromptu, with little notice andvery limited in scope. Clearly outline the potential harmthat may result from the granting (or denial) of such arequest, depending on whom you represent.

D. Expiration of TRO and Extending the TROPursuant to TEX.R.CIV.P. 680, a TRO “shall expire”

within a period of time not to exceed fourteen days. Id.A court may grant one extension for “good cause” shownfor an additional fourteen days, or for a longer period oftime, if agreed. No more than one extension is proper,unless the subsequent extensions are unopposed. Id.

E. Standing OrdersIn the past few years, several Texas counties have

adopted family law “Standing Orders.” These “StandingOrders” may state that the order becomes effective uponthe parties, ipso facto, upon the filing of the action. The


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“Standing Orders” contain standard injunctive relief inthe form of a temporary restraining order that purports toautomatically morph into a temporary injunction. Thelaudable concept is to place a stabilizing order in effectin virtually every case without the cost of obtaining aTRO for each case. Caution, however, is appropriate.Nothing in the Texas Civil Practice and Remedies Code,in the Texas Family Code, or in the Texas Rules of CivilProcedure explicitly endorses such an order. Thus, untilan appellate court rules on the enforceability of these“Standing Orders”, be careful. It is wise to explain theseconcerns to a client and to extend to the client the optionof obtaining a conventional temporary restraining order.1

IV. TEMPORARY ORDERSTemporary orders stabilize the litigants’ lives and

specify the rules under which the parties will live untilthe final orders. The temporary orders hearing is one ofthe most critical aspects of a family law case. Onceagain, temporary orders have a habit of becoming finalorders.

A. Temporary Orders in Divorce CasesWhile a suit for divorce is pending, the court may

render an appropriate order for the preservation of theproperty and protection of the parties as deemednecessary and equitable. TEX.FAM.CODE § 6.502. In aSAPCR suit, the court may make temporary orders forconservatorship and possession of a child and for supportof the child. TEX.FAM.CODE § 105.001

B. Temporary Orders in Modification CasesIn a modification suit, the ability to obtain

temporary orders is more limited than in original suits.For example, a request to modify the right to establish achild*s primary residence must meet certain requirementsbefore a court may grant such relief on a temporary basis.TEX.FAM.CODE § 156.006 states the requirements fortemporary orders changing a child*s primary residence ina modification case. A court may grant such relief onlyupon a showing:

1. that the child*s present living environment mayendanger the child*s physical health or significantlyimpair the child*s emotional development;

2. of the voluntary relinquishment of the primary careand possession of the child for more than 6 months,and the temporary order is in the best interest of thechild; or

3. that the child has filed with the court in writing thename of the child*s preference to have the exclusive

right to designate his or her primary residence, andthe order is in the child*s best interest.

Id.

C. Preparation Step One – Who Are the Players?From presiding over the mock trial, one has learned

that it is a challenge for the court to keep in mind thenames and relationships of the parties, children,grandparents, friends, teachers, and miscellaneous thirdparty witnesses. Simplify the judge’s job by preparing alist of the “persons involved” stating their names, agesand relationships.

D. Preparation Step Two – Summary of RequestedReliefIf you don’t ask for it -- you probably won’t get it.

A host of relief is available at a family law temporaryorders hearing. Attached as Appendix “2" is a scheduleof temporary relief commonly at issue in a family lawtemporary orders hearing. This list provides a startingplace to consider the potential contested issues at atemporary orders hearing.

From your experience as a mock trial judge, youhave learned that keeping track of who is asking for whatis challenging. Make the judge’s job as easy as possible.Prepare a “Summary of Requested Relief.” In thissummary, state precisely in shorthand terms the reliefthat you wish for the court to grant. If the other side doesnot prepare such a list, often the judge will use yourrequested relief as a checklist for the ruling.

E. Forms of Temporary ReliefBegin preparation for a temporary orders hearing by

clearly defining with the client the relief sought. Usually,this includes requests for monetary relief, use ofproperty, and children*s issues, and additional injunctiverelief, as follows:

1. Monetary Relief The divorcing parties must continue to manage their

assets, income and payment of expenses during divorce.Requests for monetary relief can include the following:

a. Interim attorney feesb. Temporary spousal supportc. Payment of mortgage or rentd. Payment of utilities e. Payment of taxesf. Payment of credit card debtg. Payment of other debth. Homeowner’s insurancei. Vehicle insurancej. Medical insurance for partiesk. Budget for the monied spouse

1 The Honorable Christine C. Collie did notparticipate in writing this paragraph.


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2. Child-Related Relief The divorce court must also stabilize matters

relating to the children, and provide for the needs of thechildren during the divorce. Child-related issues mayinclude the following:

a. Conservatorshipb. Primary parentc. Residence restrictiond. School decisionse. Medical decisionsf. Miscellaneous rightsg. Standard in possession rights (TFC § 153.074)h. Standard all at all time rights (TFC § 153.073)i. Possessionj. Public place exchange of childrenk. Supervisionl. Child Supportm. Medical insurancen. Unpaid medical billso. Psychological evaluationp. Social studyq. Contact with boyfriends and girlfriendsr. Consumption of alcohol or drugss. Discussion of case with childt. Disparaging other parent to childu. Drug testsv. Parenting classesw. Divorcing parents classx. Interviewing a child in chambersy. Parent coordinators

3. Use of PropertyTemporary orders also allocate the use of particular

assets during the pendency of the case. The followingissues may arise in connection with the use of property:

a. Use of houseb. Use of car 1c. Use of car 2d. Use of personal property in housee. Use of lake housef. Use of accounts

4. Injunctive ReliefMost temporary orders include injunctive relief.

Injunctive relief can include the following:

a. Temporary injunction relating to propertyb. Temporary injunction relating to childrenc. Temporary injunction regarding electronic datad. Communication by email only

5. Discovery and Pretrial OrdersAttempt to look ahead into the discovery phase of

the litigation and address as many discovery issues asone can reasonably anticipate, including the following:

a. Inventory and appraisementb. Exchange of account statementsc. Electronic access to accountsd. Exchange of credit card statementse. Mediationf. Pleading deadlinesg. Discovery deadlines (120 day expert trap)h. Stipulations as to admissible documents

6. Exceptional ReliefCertain cases involve exceptional issues such as the

all-too-common problems with family violence andprotective orders. Exceptional matters in a temporaryorder can include the following:

a. Protective ordersb. Public place exchange of childrenc. Lock up passports of childrend. Receiverse. Parent coordinatorsf. Anger managementg. Battering classh. Children excluded from access to certain

personsi. Control of family businessj. Drug/alcohol screeningk. Evaluations for drug/alcohol addiction,

evaluations for child abuse/molestation

F. Preparation Step Three - Point List - ProofOutlineThe summary of requested relief becomes a starting

point outline for the needed proof. For each item ofrelief requested, prepare a list of evidentiary facts or“points” that support each such request. This point list,broken down by the relief to which it applies, can later beplugged into the witness outlines.

For example, the following “evidentiary points” areapplicable to a request that the mother be appointed asthe primary joint managing conservator:

a. Mom has always been the primary caretaker;b. Mom has handled the majority of the doctor’s

appointments alone;c. Mom, unlike Dad, has attended all of the

parent-teacher conferences;d. Mom is involved in the children’s extra

curricular activities, while Dad works late;


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e. Mom’s involvement with her boyfriend, whileinappropriate, is unknown to the children anddid not interfere with her parenting;

f. Dad’s access must be limited during hisalcohol treatment.

V. KEY ASPECTS OF SUCCESSFULPREPARATIONThe following are key pointers with regard to

preparatory issues for a temporary hearing.

A. Financial Information StatementAn accurate and comprehensive Financial

Information Statement (FIS) is essential to supportrequests for monetary relief. The FIS is a roadmap forthe financial part of a temporary hearing. Encourage theclient to consider expenses from the very beginning ofthe case. Have the client examine computer accountingprograms, check book registers, cancelled checks as wellas any other sources of information that might shed lighton monthly expenses.

Consider including the following in addition to the“customary” expenses:

• school tuition deposits due in the near future• private school fees or “required” donations not a

part of the regular tuition• holiday gifts• un-reimbursed medical treatments, such as speech

therapy, psychological counseling, etc.• school clothes and uniforms• tutoring expenses• special event expenses, such as dance recital

costumes, prom expenses, field or other school trips• spending money for vacations already booked• driver*s education• non-monthly expenses that may come due, such as

home owner*s association dues, MUD taxes, andpest control

The FIS should also include variable expenses, includingexpected changes in mortgage or rent payments, andchild-care expenses during the school year versus thesummer. Anticipate additional expenses as a result ofseparation, such as increased fuel and costs for travel toand from the children*s residence for visitation.

Question your client about each entry. The clientwho has never paid bills may need assistance in thereview of bank statements, credit card statements, andcheck book registers to draft an accurate FIS. Thechildren*s primary caretaker may have detailedinformation about expenses relating to the children, butno idea of the bigger picture of the family*s income andexpenses.

Finally, look at the FIS with a critical eye,comparing relief requested to budgetary realities.Families who are already over-extended on credit cardsand other debt must cut back dramatically. Discuss eachbudget item and decide if it appears reasonable and thenif it can be afforded.

B. A Budget for the Monied SpouseConsider suggesting an order placing both parties on

a budget and limiting the use of extra cash by the“monied” spouse. This proposed budget should take intoaccount each party*s responsibilities for maintaining thestatus quo and paying debt service. Consider an orderthat places all receipts in an account and only authorizesspecific disbursements.

C. Temporary Spousal SupportThe TEX.FAM.C0DE § 6.502(a)(3) authorizes the

award of temporary spousal support. The court mayallocate income and resources to pay necessary expensesand protect the status quo, particularly when children areinvolved.

In making a request for temporary support, providethe court with specific information about each party*sincome, how that income has traditionally been used,how much income each can earn, anticipated expenses ofthe children and of each spouse (see section on FinancialInformation Statements), and access to community funds.An unemployed spouse must show efforts to becomeemployed or reasons for not being employed. Look alsoto the Family Code requirements for permanent spousalsupport and be prepared to prove and argue those factors,if applicable.

In defending against a request for spousal support,point out that “temporary support should be awardedbased on considerations of both the degree to which theapplicant is destitute of means to pay for his or hernecessities during the pendency of the suit, and theability of the requested spouse to pay.” Herschberg v.Herschberg, 994 S.W.2d 273, 278 (Tex.App.—CorpusChristi 1999, no pet.) [“Temporary support is only meantto pay for necessary expenses.” Id.].

D. Interim Attorney*s FeesFamily Code Sections § 6.502 (a)(4) and § 105.00

l(a)(5) authorize the court to award interim attorney'sfees. The trial court has broad, though not unlimited,discretion in making temporary orders for support and forattorney*s fees during the course of divorce proceedings.Herschberg v. Herschberg, 994 S.W.2d 273 (Tex. App--Corpus Christi 1999, no pet.); Villasenor v. Villasenor,911 S.W.2d 411, 420 (Tex. App.--San Antonio 1995, no.writ). Interim fee awards are to guard against the danger“that the spouse in control and possession of a bulk of themarital estate will use that control to his or her advantage

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=994&edition=S.W.2d&page=273&id=57932_01




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in the adversarial process, leaving the other spouse withinferior representation and at a disadvantage with regardto the division of property.” Herschberg v. Herschberg,994 S.W.2d 273, 279.

The Family Code provides no guidance as to theamount of attorney*s fees that may be awarded on aninterim basis. Generally, the amount of the award shouldbe based on the needs of the applicant weighed againstthe ability of the opposing party and the estate to pay thefees. The party seeking payment of the fees should beprepared to show:

• A lack of resources to pay fees and expensesnecessary to present the case adequately;

• Circumstances which make the case especiallycomplex, such as a custody contest or the need forextensive discovery;

• An estimate of anticipated time and expenses;• The other spouse*s ability to pay the requested fees,

for example, disparity of income and access toresources;

• A source of funds from which to pay the fees(earnings, community property accounts, creditcards, “toys” that can be sold).

Consider the following approaches to interimattorneys’ fees:

a. An order transferring funds to a new account tobe used only for litigation costs;

b. An order providing that each side’s attorneys’fees are to be paid from a specified sourcewithin five days of presentation of a bill, witha proviso that, without delaying the payment,either side can request a hearing on thereasonableness or necessity of any of the feesincurred;

c. An order specifying that a credit card with ahigh balance limit shall be used to payattorneys’ fees;

d. An order prohibiting a party from paying thatparty’s own counsel unless a like sum is paidto the other side;

e. An order prohibiting an attorney fromaccepting a payment from any source unless alike payment is made to the other side.

Attorneys are entitled to be paid reasonable feesincurred performing necessary services. Early in a caseis the opportune time to create a system whereby theattorneys get paid timely. Such a system avoids theinappropriate “litigation by starve out” approach and alsoavoids the situation where one side is feeling the pain oflitigation costs while the other side (for whatever reason)is not paying the costs of legal services. Being aware of

litigation costs and of the risk of depletion of thecommunity estate encourages prompt and reasonablesettlement.

E. Interim Fees in Modification CasesThe general provisions of Family Code Title 5 apply

with equal force to modifications as to originalproceedings. TEX.FAM.CODE Subtitle A, “GeneralProvisions,” see Hughley v. Hughley, 923 S.W.2d 778,779-800 (Tex.App.—Tyler 1996, writ denied) ( all sub-parts of Title 5 are governed by the general provisionssection). Section 105.001 provides for temporary ordersduring a modification action. TEX.FAM.CODE §105.001. One form of temporary order available ispayment of fees. Interim fees may be awarded inmodification actions. MacCullum v. MacCullum, 801S.W.2d 579 (Tex.App.—Corpus Christi 1991)(superceded by statute on a separate issue in Terry v.Terry, 920 S.W.2d 423 (Tex.App.—Houston [1st Dist.]1996 no writ) (Section [105.001] authorizes interimattorney*s fees in modification suits). See also Ex ParteKimsey, 915 S.W.2d 523, 526 n.1 (Tex.App.—El Paso1995 no writ); Morse v. Baker-Olsen, 929 S.W.2d 659,662 (Tex.App.—Houston [14th Dist.] 1996 (same).

In defending against the award of attorney*s fees ina modification case, focus the court*s attention on thereasoning for interim fees in Herschberg – the spouse incontrol of the bulk of the marital estate will use thatcontrol to his or her advantage in the adversarial process,leaving the other spouse with inferior representation andat a disadvantage with regard to the division of property.See Herschberg, 994 S.W.2d at 279. Present evidence ofthe requesting party*s ability to pay his or her ownattorney*s fees balanced against your client*s lack ofability to pay. The court should additionally consider thequestion of whether an award for interim attorney*s feeswill unfairly compromise your client*s financial position.

F. Temporary Use and Possession of PropertyIssues regarding use and possession or property

usually focus around the family home, vehicles, furnitureand, perhaps, use of a vacation home or sportingequipment, such as a boat.

The children generally follow the home. Where nochildren exist, consider the following:

• use the home for work;• who has historically maintained the home;• proximity to work;• the party to whom the house will be awarded at the

end of the case;• ability to make mortgage, utility payments; and• fault — a spouse who abuses or who has had an

affair will have no “sympathy card” to play.










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Vehicle use will normally follow the status quo.Requests for use of additional vehicles, however, shouldbe accompanied by testimony in support of that request(third vehicle used by nanny should probably be awardedto the party with primary possession of the children).Requests for the use of particular furniture should bespecific — bring a list of those items requested, and bereasonable. Likewise, be reasonable in your proposal foruse of recreational vehicles, and vacation homes.Consider a proposal that allows both parties to share theuse of these items.

Requests may include an order to sell. If the partiesare over extended, consider the reality of the partiesbeing able to keep a recreational vehicle or vacationhome. It may be more realistic to sell the property duringthe pendency of the divorce.

G. Children*s IssuesCustody is very often won or lost at the first

hearing. At the end of the temporary hearing, one parentwill often not be living with the children in “their” homeand may lose the key advantage of being an integral partof the children*s day-to-day lives. By the time that finaltrial arrives, months have passed and a precedentestablished. Now is the time to present the theme of yourcase, and to carry that theme throughout preparation tofinal trial.

Present the temperament and emotional make-up ofeach party. Present significant conduct, includingprimary caretaker, violence, substance abuse, alcohol ordrug dependency, moral instability, leaving the childrenunattended, or criminal activity. The mental and physicalhealth of the parties is also significant.

Learn your client’s parental track record. Gatherinformation about family history and personalinvolvement with the children through a custodyworksheet and questionnaire. This worksheet shouldaddress the participation of both your client and yourclient*s spouse in the child*s day-to-day activities andchild-care responsibilities.

1. Representing the Primary Caretaker vs. the Non-Primary CaretakerIt is unlikely that you will prevail in a request for

temporary primary conservatorship unless:

• your client has historically been the primarycaretaker of the children; or

• the other parent has serious problems, such asalcohol abuse, drug use, mental illness, or violencethat impacts his or her ability to care for thechildren.

If you represent the primary caretaker, request tomaintain the status quo and provide the court with the

details of your client’s extensive involvement in thechild*s day-to-day needs and life, including school,church activities, doctor and dentist appointments,homework, friends, and social activities. Stress theimportance of maintaining as much stability as possiblein the daily life of the child.

If there is a question with respect to your client*ssexual activity outside the marriage, meet it head on.Diffuse the impact of this information by bringing it outthrough your client; do not make the judge wait to hearthis from the other side. Be prepared to show that thechild has not been impacted by the “wayward” behavior.

If representing the non-primary caretaker, you havea substantial de facto burden. Courts tend to maintain thestatus quo unless there is evidence that the status quo isharming the child. If the parties have operated with themother being the primary caretaker, then the naturaltendency of the court is to continue that system. Whenrepresenting the non-primary caretaker, the de factoburden is to show a “damn good reason” to change whatthe parties have been doing.

It may be difficult to determine which parent is the“primary” caretaker. Even in the case of a true stay-at-home mom, there is often ample involvement by fatherswho wake children in the morning, prepare breakfast andschool lunches, and take the children to school or daycare. These traditional “mother” roles are now oftenshared, and the father’s involvement should be broughtto the attention of the Court. Facts such as these canprove that the status quo means frequent ongoing contactwith the child by both parents.

When representing a party who has not been theprimary caretaker, you may point out that an “expandedstandard” possession schedule creates a scenario wherebythe non-primary parent has at least forty percent (40%) ofa child’s waking, non-school, non-daycare time.Consider asking for a fifty-fifty possession schedule.Argue that this is not materially different from thestandard possession order. Show the client’sinvolvement. It is much easier to move, at final trial,from a fifty-fifty possession schedule to the parent withprimary possession, than to move from the non-primaryparent possession to primary parent possession.

A party who is not a reasonable candidate fortemporary primary conservator may achieve more parityby requesting, for example:

a. Joint decision-making rights and duties. Givereasons to support this request, such as pastparticipation in medical decisions, history of takingthe child for checkups and for emergency care,active participation in school events, parent-teacherconferences, and extracurricular activities.

b. Time over and above a Standard Possession Order.Give the court reasons to support this request. For


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example, Dad may have always coached soccer.The season is about to begin, so let him have theregular practice night, in addition to the SPO. Showthat the extra time, particularly overnights, will notbe disruptive to the child*s routine. Consider thedistance the parties now live from one another. Ifthe parties live nearby, make sure the court knowsthat fact. Show that appropriate sleepingarrangements exist in your client*s home whichprovide a safe, private, comfortable environment forthe child.

c. Keep the Other Parent “In the Loop”. Require theprimary parent to keep the other parent “in the loop”as to school events, sports schedules, party and playdate invitations, etc. Require the other parent toinclude your client as a contact on any informationsheets regarding the child and provide copies ofschool documents.

H. InjunctionsCourts commonly order mutual standard injunctions

for the preservation of property and protection of theparties and children at the temporary orders hearing,pursuant to TEX.FAM.CODE § 6.502 and § 105.001.

Consider requests for non-standard injunctions andprepare to show evidence supporting those requests. Therequests include:

• Prohibition on overnight guests unrelated by bloodor marriage;

• Restricting consumption of alcohol in the presenceof the children or within 12 hours before a period ofpossession;

• Prohibiting illegal drug use;• Restricting the child*s access to a non-party about

which concerns have been raised (family memberalcoholic, alleged pedophile, etc);

• Restricting out-of-state or international travel;• Restricting ability to operate a motor vehicle with

child in the car unless a Smart Start-type device isinstalled in the car; and

• Prohibitions on access to a particular financialaccount, etc.

I. Inventory ExchangeIncluding a request for an order requiring the

exchange of sworn inventories is essential. A sworninventory early in the case forces the opposing party todivulge all assets and debts as well as any separateproperty claims. This allows one to tailor later discoveryto better counter these separate property claims.

Remember that an inventory and appraisement is adiscovery tool. Ismail v. Ismail, 702 SW2d 216 (TexApp. – Houston [1st Dist.] 1985, writ ref’d n.n.e.). Aparty who fails to properly or timely complete their

inventory in accordance with a temporary order may faceexclusion of evidence in support of claims made in thatinventory, such as reimbursement claims, and separateproperty claims.

J. Psychological Evaluation and Social StudyRequests for temporary relief may also seek a court-

appointed expert to evaluate the needs of the child andthe parenting abilities of the parents.

K. Drug/Alcohol TestingWhen the need for substance testing exists, provide

the court with specific behaviors justifying the need forinstanter drug or alcohol testing. Be prepared, also, toprovide the court with information on appropriatemethods for such testing (i.e., u.a. or hair) and testingfacilities in the area.

In addition to one-time, instanter testing ordered bythe court, consider the possible need for continuedrandom testing throughout the pendency of the case. Acourt may allow for this random testing through goodcause shown.

L. Additional Requests for Temporary OrdersAdditional requests for relief on temporary orders

may include (but are certainly not limited to):

1. CounselingRequests for counseling may include asking the

court for mandatory participation by the parties in maritalcounseling, in co-parenting counseling for the benefit ofthe children, or to cooperate in a child*s therapy.

2. Children with Special NeedsA standard possession order may not be appropriate

for a child with special needs. Provide the court withinformation about the child*s needs through your client*stestimony, medical records, or the child*s physician ortherapist. Offer a proposal that addresses the child*sneeds and that allows for appropriate access for the otherparent. A child with autism, for example, who needsstrict routine and familiar surroundings, may require agradually stepped-up possession and access order asopposed to immediately being thrown into a new homeand new surroundings for extended periods of time.

3. Accounting and Periodic Records AccessOne may also request the party in control of

community funds to provide accountings and producerecords on a regular basis to document spending or keepthe other spouse informed on management of communityfunds. This requirement might also be appropriate if oneparty is awarded the sole right to manage the parties*business or the children*s accounts. Consider asking forelectronic access to credit cards and financial accounts.



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4. Appointment of Amicus AttorneyA temporary orders request might ask for the

appointment of an Amicus Attorney, whose function willbe to advocate the child*s “best interests”. If your clientfeels strongly that the child*s wishes need to be heard,consider making this request of the court.

5. Interview with ChildPursuant to TEX.FAM.CODE § 153.009 (b), in a

nonjury trial, the court may interview the child inchambers to determine the child*s wishes as toconservatorship. When the issue of managingconservatorship is contested, on the application of aparty, the court shall interview a child 12 years of age orolder and may interview a child under 12 years of age.Id.

A party may request such an interview to avoidcalling the child as a witness, to ensure that the child*swishes are known by the fact finder, or to let the childprovide information to a judge in a forum in which thechild will not confront his or her parents. One may alsowant to request an in-chambers interview whenconflicting choice of conservator statements have beenfiled or if other reasons exist.

Recall that the temporary hearing is probably thefirst time the court has any exposure to the case.Therefore, prepare a list of suggested topics of inquiryfor the court’s interview with the child. File it andprovide a copy to the judge. Make it easy for the judgeto learn your side of the case.

These interviews can be dangerous – one would besurprised to learn the things children will confide insomeone in a position of authority. A child may havebeen telling your client what that parent wanted to hear,but may tell the judge the opposite.

Finally, determine whether to request a record of thein-chambers interview. Upon motion of a party, thecourt shall cause a record to be made when the child istwelve years old or older. TEX.FAM.CODE § 153.009(d). Consider making this request of the courtparticularly if you are defending against a choice ofconservator statement or if you do not trust the work theAmicus Attorney is doing on behalf of the child. Thetranscript becomes a part of the court*s record and maybe valuable in subsequent hearings. Id.

VI. OBTAINING DOCUMENTS NEEDED FORTEMPORARY HEARINGS

A. Document SubpoenasTime is limited in preparing for a Temporary Orders

hearing. Thus, releases may not timely produce neededinformation. Send out subpoenas for the information tobe produced at the time of the hearing.

The 1999 revisions to TEX.R.CIV.P. 176 initiallycaused confusion among family practitioners.

TEX.R.CIV.P. 176.3(b) specifically provides that “asubpoena may not be used for discovery to an extent, ina manner, or at a time other than as provided by the rulesgoverning discovery.” This rule prevents a party fromattempting to circumvent the minimum response periodof Rule 196 (Request for Production) by serving. adiscovery subpoena requesting documents from a partyrequiring response in less than thirty days.

Some practitioners erroneously interpreted this ruleto preclude a subpoena requiring a party to bringnecessary documents to a hearing set within the thirtyday limitation. Most courts interpret TEX.R.CIV.P. 176to not include trial subpoenas. To avoid violating theprohibition against the inappropriate use of a subpoenafor “discovery,” one must narrowly tailor the hearingsubpoena to specific documents clearly needed for thetemporary orders hearing.

The Family Code contains provisions expresslyproviding for disclosures in connection with childsupport. Specifically, Section 154.063 of the TexasFamily Code provides that the “court shall require” aparty to furnish information sufficient to accuratelyidentify that party’s net resources and ability to pay childsupport, as well as to produce income tax returns for thepast two years, a financial statement, and provide paystubs.

Obtain information from other sources to both betterprepare for the temporary hearing and to accelerate thediscovery process. For example, subpoena theaccountant, bookkeeper or office manager for the party*sbusiness to produce documents relating to the business.Subpoena tax returns from the parties* personalaccountant or tax preparer. Subpoena the humanresources director for the opposing party*s employer toproduce both payroll records and information onretirement plans, employee savings plans, deferredcompensation, and stock options.

B. Retrieving Medical/Mental Health Records inCompliance with HIPAABe very mindful of HIPAA (“Health Insurance

Portability and Accountability Act”) and other statutesrelevant to the disclosure of personal health information,particularly information of drug and alcohol treatment.Nothing can put the brakes on a case like an assertion ofprivacy and privilege with respect to the disclosure ofmedical condition, mental health and substance abusetreatment information. If this is an issue in your case,request releases of this information from the opposingside early. The battle to get the documents could be along and expensive one, and it is best to know early on ifprivacy and privilege will be asserted. Section 42 CFR164.512(e), specifies two different means to retrievehealth records while remaining in compliance with theact. A “covered entity” may disclose protected health


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information in the course of any judicial oradministrative proceeding in response to the followingprocedures:

1. A court order, provided the entity discloses only theprotected health information expressly authorizedby the order; or

2. A subpoena, discovery request, or other lawfulprocess, if:

a. The entity receives satisfactory assurance that theindividual entitled to protection has been givennotice of the request or a good faith effort has beenmade to give such notice;

Specifically, the notice requirements are as follows:

• The requesting party has made a good faitheffort to provide notice;

• The notice includes enough detail about thelitigation so that the individual can raise anobjection to the request; and

• The time to raise any objections has elapsed;and

• No objections were filed; or• All objections filed have been resolved by the

court.

OR

b. The entity receives satisfactory assurance from theparty seeking information that reasonable effortshave been made to secure a qualified protectiveorder.

Specifically, the entity must receive a written statementand accompanying documentation demonstrating that:

• The parties have agreed to a protective orderand presented it to the court; or

• The party seeking the protected heathinformation has requested a qualifiedprotective order from the court.

Preparation of a proper protection order is of keyimportance. A qualified protective order means an orderof the court or a stipulation by the parties to the litigationthat:

(a) Prohibits the parties from using or disclosing theprotected information for any purpose other than thelitigation; and

(b) Requires the return or destruction of the records andany copies of them at the end of the litigation.

The usual procedure is to subpoena the informationfrom the health care provider. The health care provider’scounsel will normally contact the attorney issuing thesubpoena and file a motion to quash or for protectiveorder. Negotiate with counsel for the health careprovider an appropriate protective order that complieswith the HIPAA provisions cited above and that ordersthe health care provider to produce the records.

Be extraordinarily careful in this area. Specificallyidentify in the protective order the persons (such asexperts, consultants, parties, witnesses being deposed ortestifying, court reporters, judges, members of a jury) towhom the information may be disclosed. HIPAA is astatute loaded with provisions, the violation of which cantrigger serious civil or criminal consequences. Althoughthere is some disagreement as to whether a non “coveredentity” can be held criminally liable for violatingHIPAA’s provisions, one does not want to be that testcase. Carefully draft a protective order and utilizeextreme caution to make certain that further disclosureoccurs only as permitted by the order.

VII. WITNESS PREPARATIONGood witness preparation may effectively dilute bad

facts or tip the scales when facts are close. To spend "toomuch" time making sure your client is confident andready to testify is rare if not impossible. It is crucial toyour presentation that witnesses appear to the trier of factas open, honest, not defensive, not arrogant, impartialand at the same time biased for our side of the case.Make sure your client tells you all of the opposingwitnesses and what they may testify to in your case.

People we contact in our busy lives can makeexcellent witnesses, such as neighbors, teachers, schoolcounselors, school administrators, co-workers, friends,clergy, children’s coaches, parents of the children’sfriends, church members, daycare workers, socialworkers, psychologists, any professionals the family mayhave used, CPAs, attorneys, extended family members,eye-witnesses, healthcare providers, physical trainers, etcetera. Pare down the exhaustive list to a maximum ofthree to four that you will actually call to testify. Talk toeach witness before trial–you are ultimately responsiblefor this case and you need to be confident in thesewitnesses.

Every witness should know the following rules:

(1) Always tell the truth.(2) Do not exaggerate–be precise in your answers.

(Accuracy equals truth.)(3) Listen carefully to the question.(4) If necessary, repeat the question to yourself.(5) Make certain you understand the question asked.(6) Ignore the voice inflection or demeanor of the

opposing attorney.


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(7) Do not feel rushed–take your time when answering.(8) If you forget the question, ask for it to be repeated.(9) Answer only the question asked–stay focused on the

question.(10) Do not answer questions with questions.(11) Answer orally, distinctly and loud enough for all to

hear.(12) Be confident and firm in your answer.(13) Do not guess unless specifically asked to guess.(14) Do not box yourself in–questions such as "all" and

"every."(15) Always be courteous–do not argue with the

opposing attorney.(16) Remain calm–remember to take deep breaths.(17) If the questioning attorney is objecting to the answer

and saying, "Objection, nonresponsive.", then listenmore carefully and just answer the question.

(18) You are "on stage" from the time you arrive at thecourthouse.

Prepare a question outline for every witness whomyou intend to call in support of your requests for relief.Review the outline with the witness to make certain thatthe witness does have the knowledge that your client toldyou the witness holds. The American Bar Associationhas available video DVDs for witness preparation. Usethem.

A. Client PreparationGet control over your client as soon as you can.

Educate the client to the realities of a court hearing,including a written overview of the process explainingeverything from the role of court personnel, the fact thatthe proceedings are open to the public, appropriate dress,appropriate demeanor, as well as the basic summary ofthe order of proceedings. An educated client who knowswhat to expect in the courtroom will not be as subject tostress and will be better able to focus on their testimonyand the analysis of the testimony of others.

Prepare your client for questions about strengths andweaknesses, both of your client and of your client*sspouse. The client must be able to articulate andemphasize strengths, and also to acknowledge personalparenting weaknesses. The client must be prepared toanswer the same questions for the opposing party and tobe able to emphasize parenting weaknesses, while alsocrediting that party*s strengths as a parent. Except inextraordinary circumstances, for a client to answer“none” when asked about the positive attributes of theother parent will buy no good will from the Court andmay undermine the client*s credibility. This answer willlikely cast doubt on the client*s ability to co-parent andsupport the child*s relationship with the other parent.

Consider videotaping a “practice” session of directand cross examination so that both you and your client

can focus on problem areas in your client*s testimony. Ifa client is nervous, suggest that the client visit thecourthouse to watch a hearing.

Do not assume that a child*s mother willautomatically obtain custody. (See TEX.FAM.CODE §153.003) Present specific evidence of good parenting.Be forceful with testimony as to stability and the client’sability to provide for the needs of the child, whetherhealth, educational, or fiscal needs. Show to the courtthe loving relationship and bond between the client andthe child. Present positive attributes of the client as toeducation, peer group involvement, and the active facetsof parenting.

If representing the father, be meticulous in yourpresentation of all of the above-listed factors to overcomeinnate biases.

While it may seem simple, the issue of child supportis often one of the most hotly contested. In preparing fortrial of this issue, be prepared with all necessary financialdocuments. Go to the source — the employer — ifnecessary to get the real figures, and evaluate bankstatements if you don*t trust the income information youreceive from the paying party.

Familiarize yourself with the proper calculation of“net monthly income” (TEX.FAM.CODE § 154.061) andthe definition of “resources” available for the calculationof child support (TEX.FAM.CODE § 154.062). Know,also, the factors the court will consider in varying fromthe guidelines, as set out in TEX.FAM.C0DE § 154.123.Prepare the client to address these issues.

Practice the testimony with the client.

B. Expert WitnessesThough much less common in temporary hearings

than final trial, one should still prepare to present ordefend against expert testimony. The following guideshould be instructive. (Adapted from: James B. Sales,Challenging Expert Testimony under Daubert/Robinson,2nd Annual Evidence and Discovery Symposium(1997).):

1. Select a well qualified expert who uses provenmethodologies

a. Research applicable literature in the particularfield of expertise.

b. Consult academicians, known experts, otherattorneys, and clients for recommendations andreferrals.

c. Avoid using “professional” or “hired-gun”testifying experts.

2. Develop evidence of an expert*s qualifications andreliability during discovery


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a. Question your expert at the deposition toestablish sufficient qualifications andreliability of his methodologies to withstandchallenge; otherwise, a party runs a risk thatthe expert will be excluded by an opponent*schallenge prior to trial.

b. Obtain an affidavit from an expert with therequisite information of qualifications.

c. Establish an expert*s qualifications andreliability through opposing experts andindependent non-testifying experts.

d. Obtain learned treatises and other literaturesupporting the methodologies and reliability ofthe methodologies employed by your expert

3. Educate the expert on the requirements of Robinson(E.I. DuPont de Nemours v. Robinson, 932 S.W.2d549 (Tex. 1995)) for determining “reliability”:

a. the extent to which the theory underlying theexpert*s testimony has been tested;

b. the extent to which the technique relies uponthe subjective interpretation of the expert;

c. whether the theory has been subjected to peerreview and/or publication;

d. the technique*s potential rate of error;e. whether the underlying theory or technique has

been generally accepted as valid by therelevant scientific community; and

f. the non-judicial uses which have been made ofthe theory.

Robinson, 923 S.W.2d at 556-57.

If challenging the opposing party*s expert, createand follow a detailed outline for examination of thatwitness in a Daubert challenge.

C. Lay Witness Interviews and PreparationThe initial interview of lay witnesses should occur

as early as possible and can be conducted by a legalassistant familiar with the case. Make certain that thewitness knows that you represent the party, and not thewitness. This first contact should include a very generaldiscussion in which the firm*s representative tells thewitness that the firm is not looking for testimony “for”our client, or “against” the other spouse, but rather forsomeone who is aware of the facts so that we can betterunderstand the situation of the parties and the children.

Discuss the witnesses with the client and, if there areseveral, try to focus the client on the best witnesses touse. Talk with each witness by phone yourself, abouttheir information and what possible input they may haveto the case. It is important to confirm for yourself thatthese witnesses are competent to testify, that they

actually have the information your client claims theyhave, and that they are able to communicate thatinformation.

Instruct the witnesses as to proper attire, courtroomdemeanor, appropriate responses on cross examinationand how to handle objections. Instruct your witnesses asto “the rule” — explain the consequences of violating therule. Tell witness and family members to avoid makingfaces, shaking heads, making gestures, or other displaysof any nature at the courthouse.

Finally, call the witness the day before hearing. Askif any new information has come up since your lastmeeting, and confirm that they will be there, on time andin the right place, pursuant to their subpoena.

VIII. TEN SILVER BULLETS FROM THE BENCH

A. The Texas Lawyer’s CreedB. If there are Local Rules, read them.C. Maintain a professional demeanor in the courtroom.

Do not “bicker” with your opposition. Instruct yourclient and witnesses about proper courtroombehavior.

D. Prepare! Do not have your client preparing aFinancial Information Statement in the hallwayoutside the courtroom. Give clients their“homework” early, including instructions to bringany documents they may need to verify income,debts, and the like.

E. Prepare! Draft one page summaries which identifythe parties, their attorneys, and the relief requestedby your client.

F. Prepare! Present your essential evidence first.Assume that time will be of the essence in yourpresentation.

G. Prepare! Be specific. For example: Where doeseach party live? Where does each work? Where isthe child’s school? What is each party’s workschedule - days of the week and hours of that day?What care is available for the child when the parentin possession is at work? If you are asking the courtto craft an access schedule, specific facts are vital.

H. Prepare!I. Prepare!J. Prepare!

IX. CONCLUSIONIn many cases, and more specifically in cases where

child-related issues are the pivotal issues, the temporaryhearing may be the most important event in the case. Inmany cases, the temporary hearing custodydeterminations will later become the final custodydetermination. This is not an absolute rule, but it is oftenthe rule. Even a property case can be lost at a temporaryhearing. If, because of the ruling at the temporary



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hearing, a property case client must struggle financially,or is unable to pay the cost of litigation, the ultimateconsequences can be devastating.

The conclusion is simple - prepare for temporaryhearing as if your entire lawsuit depends upon it -- itprobably does.


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APPENDIX 1

THE TEXAS LAWYER’S CREED--A MANDATEFOR PROFESSIONALISM

(Adopted November 7, 1989)

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the SupremeCourt of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalismrequires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhereto the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, “My word is my bond.”

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or positionin life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect andadvance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicialdisfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this Creed when undertaking representation.

2. I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly andeconomically as possible.

3. I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment tointerfere with my duty to provide objective and independent advice.

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand thatI abuse anyone or indulge in any offensive conduct.

7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financialresources of the opposing party.

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposingcounsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me torefuse reasonable requests made by other counsel.


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11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods ofresolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy,candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings betweenclients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engagein unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not includeprovisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of theparties.

5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, whenhearings, depositions, meetings, conferences or closings are cancelled.

6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, providedlegitimate objectives of my client will not be adversely affected.

7. I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discoveryrequests and responses.

9. I can disagree without being disagreeable. I recognize that effective representation does not requireantagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my controlto do anything which would be unethical or improper if done by me.

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring theprofession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimonytowards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstainfrom any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity ofan opposing counsel, without first inquiring about that counsel’s intention to proceed.

12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before orcontemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect thesubstance of the rulings of the Court.

13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies ofcorrespondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has beenmade to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are notobjectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing thediscovery process. I will encourage witnesses to respond to all deposition questions which are reasonably


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understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonablyclear.

18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I will not seek sanctions or disqualification unless it is necessary for protection of client’s lawful objectivesor is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust andimproper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of theCourt and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administrationof justice. I will refrain from conduct that degrades this symbol.

2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and thelaw.

3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

4. I will be punctual.

5. I will not engage in any conduct which offends the dignity and decorum of proceedings.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain anadvantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.

9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counselin efforts to administer justice and resolve disputes.


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APPENDIX 2

TEMPORARY HEARING ISSUE LIST

Monetary Relief

• Interim attorney fees

• Temporary spousal support

• Payment of mortgage or rent

• Payment of utilities

• Payment of taxes

• Payment of credit card debt

• Payment of other debt

• Homeowner’s insurance

• Vehicle insurance

• Medical insurance for parties

• Budget for the monied spouse

Child Related Relief

• Conservatorship

• Primary parent

• Residence restriction

• School decisions

• Medical decisions

• Misc. Rights

• Standard in possession rights

• Standard all at all time rights

• Possession

• Public place exchange of children

• Supervision of visitation

• Child support

• Medical insurance


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• Unpaid medical bills

• Psychological evaluation

• Social Study

• Contact with boyfriends and girlfriends

• Consumption of alcohol or drugs

• Discussion of case with child

• Disparaging other parent to child

• Drug tests

• Parenting classes

• Divorcing parents class

• Interviewing a child in chambers

• Parent coordinators

Use of Property

• Use of house

• Use of car 1 _____________

• Use of car 2 _______________

• Use of personal property in house

• Use of lake house

• Use of accounts

Injunctive Relief

• Temporary injunction property

• Temporary injunction children

• Temporary injunction electronic data

• Communication by email only

Discovery and Pretrial Orders

• Inventory and appraisement

• Exchange of account statements

• Electronic access to accounts


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• Exchange of credit card statements

• Mediation

• Pleading deadlines

• Discovery deadlines (120 day trap)

• Stipulations as to admissible documents

Exceptional

• Protective orders

• Lock up passports of children

• Receivers

• Anger management

• Battering class

• Children excluded from access to certain persons

• Control of family business

• Drug/alcohol screening

• Evaluation for drug/alcohol addiction

• Evaluation for child abuse/molestation

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