Avoiding He Said/She Said in Divorce Cases

One of my least favorite things to deal with in any Court case is the “he said/she said” conundrum: one person says one thing, the other person claims the exact opposite, and neither side has proof.

In these cases, it will come down to the judge having to decide which person seems the most credible.

Document Your Conversations with the Other Side

Years ago as a young attorney I clerked for a district court judge. During one of the nastiest divorce cases I have seen, the attorneys got into a dispute as to what was agreed to. Both attorneys had to withdraw, and they then had to testify that the other attorney was mistaken/lying. A “he said/she said” between attorneys was very uncomfortable to the Judge.

Behind closed doors, the judge told me, “I don’t understand why attorneys don’t do things to document what was said.” In this particular case, it would have saved much time and much headache for everyone.

Since then, I’ve started a policy of documenting all communications. I always prepare a memo that confirms my communication with attorneys and clients over the phone, and I always do a fairly good job of sending out confirmation emails to confirm exactly what we agreed upon. It’s important for keeping everyone on the same page, streamlining the case and avoiding the dreaded he said/she said. I believe that most disputes aren’t because someone is lying, but because they have different memories.

What Does this Mean for Your Case?

If you are involved in any kind of Court case, be diligent about documenting your communications (this especially applies when you are involved in a divorce case).

Here are some specific actions you can take to ensure that a judge will never have to decide if he or she thinks you’re lying:

• Communicate through writing. As much as possible, choose to put your communication in writing. This means writing an email instead of making a phone call, sending a letter through the mail or sending a text message.

• Record your conversations. Depending on the State and specific situation, this may or may not be legal. However, if it is legal to record the conversations there will be no confusion about what happened.

• Sign an agreement about the conversation. When you do have a conversation with the other side, at the end, put down in writing what you discussed and what was agreed upon. Have both sides sign the agreement.

• Create file memos of conversations. If it is not possible to write down or record conversations, you can still document the communication yourself. After you speak with someone, take a few minutes to write down a description of the conversation including a date for your own records. If you can do this using an electronic program that sets a time and date stamp that cannot be tampered with, that’s even better.

As much as possible, document your interactions. The last thing you want in your divorce case is for your attorney to suddenly have to go on the stand as a witness to resolve a he said/she said situation—and we don’t like it much, either.