# Things your lawyer should not have to learn from Counsel Opposite **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 14, 2010, 8:21pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116 "2010-04-14T20:21:41Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Sailboat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sailboat/32/461_2.png) [@Sailboat](https://boards.straightdope.com/u/Sailboat)\ **Post date:** [April 15, 2010, 4:57pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/21 "2010-04-15T16:57:22Z")
The only time so far I’ve personally consulted a lawyer (rental property issue) he told me afterward he was pleasantly surprised that I had a real issue, followed his directions, and didn’t seem to be trying to scam anyone. I guess he doesn’t see that too often. ---
**Author:** ![Turek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/turek/32/18782_2.png) [@Turek](https://boards.straightdope.com/u/Turek)\ **Post date:** [April 15, 2010, 5:24pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/22 "2010-04-15T17:24:33Z")
> [@Oakminster](#): > > 1. Divorce case–you are pregnant, and your formerly soon to be Ex-husband is not the father. 1b) Your lawyer’s on it. 😃 ---
**Author:** ![Any\_Other\_Name](https://avatars.discourse-cdn.com/v4/letter/a/f17d59/32.png) [@Any\_Other\_Name](https://boards.straightdope.com/u/Any_Other_Name)\ **Post date:** [April 15, 2010, 5:47pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/23 "2010-04-15T17:47:50Z")
> [@Qadgop\_the\_Mercotan](#): > > Doubtless someone who knows what they’re talking about will be along soon to answer this, but it’s my understanding that in most jurisdictions, any child born/conceived in wedlock is legally considered to be the child of the the husband, regardless of who supplied the sperm. IANAL. I’d learned this from someone in this situation, but the best cite I can find right now is [Time magazine from 2007](http://www.time.com/time/magazine/article/0,9171,1580398,00.html). Googling for “child support not the father” results in a lot of hits, but mostly news stories which are not so much detailed as they are filled with outrage. And while proving paternity by another would make that person liable for child support, it doesn’t automatically release from child support liability the husband who is not the father. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 15, 2010, 5:55pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/24 "2010-04-15T17:55:05Z")
> [@Oakminster](#): > > I’m sure my brethren of the Bar can add other items to the list… From criminal defense? Naaahhh… criminal defendants are invariably forthcoming and complete when they report facts to their advocates. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [April 15, 2010, 5:55pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/25 "2010-04-15T17:55:34Z")
> [@Noel\_Prosequi](#): > > …And my opponent comes up to me and says “Mate, can you just remind me, how does this defence of accident work again? What am I allowed to say?” I was utterly gobsmacked… What did you tell him? :eek: That’s just completely bizarre; couldn’t he get disbarred for something like? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [April 15, 2010, 6:01pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/26 "2010-04-15T18:01:05Z")
That you are the father? How much would that suck? ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [April 15, 2010, 6:09pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/27 "2010-04-15T18:09:24Z")
> [@Wilbo523](#): > > Not a lawyer, but why the hell would the “proven to be not-father” even be remotely liable for child support? In many/most states in the US the primary goal and emphasis of the law and the courts is to not to release the man declared or assumed as father at birth from any financial child support obligations. If it is done (proving non-paternity) before or just after birth you can be released, but after a few years as father, even if you discover the child is not yours, getting the CS obligation removed is much, much more difficult and occasionally impossible. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 15, 2010, 6:18pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/28 "2010-04-15T18:18:05Z")
By the way. California has a 3 year statute of limitations (is that the right term in civil cases?) for proving you are not the father. After that, the (now ex) husband is on the hook for support. One time I was in court, the case before mine had a dad finding out his 6 year old wasn’t his. The judge basically said TFB. The staute is that you had 3 years. Kind of sad that your best legal defense in Cali is getting your kid DNA tested at birth just in case. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 15, 2010, 6:19pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/29 "2010-04-15T18:19:58Z")
The Supreme Court of Ohio a few years ago ruled that a man who had long paid child support to a child born to him and his by-then-ex-wife was required to keep doing so, even after DNA testing showed the kid wasn’t his. The court acknowledged it was a tough call, but between the competing values of finality and accuracy of legal determinations, decided that finality was the more important in that case. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [April 15, 2010, 6:31pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/30 "2010-04-15T18:31:22Z")
> [@Sailboat](#): > > The only time so far I’ve personally consulted a lawyer (rental property issue) he told me afterward he was pleasantly surprised that I had a real issue, followed his directions, and didn’t seem to be trying to scam anyone. I guess he doesn’t see that too often. As one who takes a lot of calls about rental properties and landlord-tenant matters, I’d say that _would_ be a pleasant surprise! ---
**Author:** ![Sailboat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sailboat/32/461_2.png) [@Sailboat](https://boards.straightdope.com/u/Sailboat)\ **Post date:** [April 15, 2010, 6:46pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/31 "2010-04-15T18:46:31Z")
> [@Elendil\_s\_Heir](#): > > The Supreme Court of Ohio a few years ago ruled that a man who had long paid child support to a child born to him and his by-then-ex-wife was required to keep doing so, even after DNA testing showed the kid wasn’t his. The court acknowledged it was a tough call, but between the competing values of finality and accuracy of legal determinations, decided that finality was the more important in that case. I was under the impression that the interests of the child – in having reliable support from _someone_, even if not the biological father – were considered to weigh heavily in the issue as well, but I admit I don’t know what the facts are. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 15, 2010, 7:14pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/32 "2010-04-15T19:14:54Z")
> [@Sailboat](#): > > I was under the impression that the interests of the child – in having reliable support from _someone_, even if not the biological father – were considered to weigh heavily in the issue as well, but I admit I don’t know what the facts are. It’s cases like this and others like people being held responsible when a friend gets flashed by a red-light camera that makes we wonder how fucked up our judicial system is when you can be penalized for doing something you can prove you didn’t do. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [April 16, 2010, 1:55am UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/33 "2010-04-16T01:55:08Z")
> [@Elendil\_s\_Heir](#): > > So of course you advised him, “The best way to illustrate it is by a courtroom demonstration, mate. Unzip and piss on the courtroom carpet, then explain that you have a weak bladder and that since it was an accident, you can’t be held responsible. Nothing simpler!” > > Right? Bwahahahaha! No, I didn’t do that, but I wish I had! And to **alphaboi867** , yes, this is terrible, but the market eventually spoke. For some reason he had an “in” in the prison (his secretary’s boyfriend was inside or some such thing) and all the prisoners seemed to think that that meant he would do the right thing by them, and so he seemed to suddenly keep appearing in murder trials. Eventually the prisoners realised that wasn’t so (word does get around amongst them, after all) and I haven’t heard about him for yonks. He certainly hasn’t done a big trial that I am aware of. What did I say to him? I tried to do the right thing, as best I could (after all, it wasn’t his client’s fault that his lawyer wasn’t up to it). I told the lawyer about the relevant cases, told him what I proposed to say (I had last address, so he wasn’t going to be able to hear me first and wing it from there) and left him to it. Didn’t make any difference in the end. The guy was convicted because even if he didn’t intend the weapon to discharge (a remarkably generous assumption), he presented the loaded gun to the victim’s head in the course of committing an offence, thereby engaging the felony murder rule in my jurisdiction, so accident and/or lack of intent weren’t really ever going to fly. The conviction survived appeal. So far as I can tell, killer is still inside (this was about 15 years ago now). So I got to be virtuous at little or no cost. Which, I suppose, isn’t really all that virtuous. Coincidentally, I drive past the house where it occurred on the way home every evening. I often wonder if the present owners know about what happened there. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 16, 2010, 4:07am UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/34 "2010-04-16T04:07:21Z")
Seriously, after I picked my jaw up off the floor, I think I’d probably say something like, “I’m not your lawyer, and I’m not your teacher. I won’t tell you how to do what you need to do at this stage of the trial. I believe your client should be convicted, and I won’t do anything that will get in the way of that. Let’s talk to the judge.” If the judge wanted to grant a brief continuance for experienced co-counsel to join the case, I wouldn’t oppose it. A prosecutor’s ethical duty is to see that justice is done, not to get another notch on his or her conviction belt. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [April 16, 2010, 5:10am UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/35 "2010-04-16T05:10:13Z")
I agree (of course) with the prosecutor’s ethical duty thing, which is why I drew his attention to the relevant cases and told him what I was going to say on the point (thereby throwing away the tactical advantage of addressing last). In the circumstances, running to the judge would have achieved nothing, since unless defence counsel accepted that he was not competent (which, being insightless, he would not) the judge wasn’t going to be able to do anything. He couldn’t _insist_ that defence counsel get someone else in - it doesn’t work that way here. And it was quite clear that I was not going to do anything that would get in the way of the accused being convicted. Giving defence counsel the law prevented him from making enough of a fool of himself to justify a retrial, and what I gave him was accurate and complete. I agree it would have been safer (from a CYA perspective) not to engage the defence counsel at all, but I back my judgment on this one. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 16, 2010, 12:29pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/36 "2010-04-16T12:29:19Z")
I’m not saying you’re wrong, just that that’s not what I would do. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 16, 2010, 1:29pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/37 "2010-04-16T13:29:07Z")
In the defense view, of course, there’s not any such dual duty; if I had found myself next to a prosecutor who didn’t know what he was doing, I would have leveraged that to the hilt to secure an advantage to my client. One thing that sort of comes close in my past experience was a prosecutor who, when he had a weak case – say a thin search rationale – would say, “Hey, how about we just agree to such-and-so disposition (way too harsh given his case-on-crutches) and I’ll make it up to you on the next one?” Yes, that’s the idea. I’ll screw this client so that some future client gets a sweet deal. Yeah, can I have that in writing? I always wondered what would happen if I took him up on that and then marched in with some guy who killed a busload of nuns on live TV, and said, “Hey, I’ll take that break you promised me now!” ---
**Author:** ![NinetyWt](https://avatars.discourse-cdn.com/v4/letter/n/cc9497/32.png) [@NinetyWt](https://boards.straightdope.com/u/NinetyWt)\ **Post date:** [April 16, 2010, 2:07pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/38 "2010-04-16T14:07:43Z")
I had the opportunity to testify as an expert witness a couple of weeks ago, and it was truly fascinating to watch the trial proceed. I was on the defense side. This was a case about a damaged storm drain pipe which was located on plaintiff’s property. She was suing some people upstream who owned a lake. Her counsel had not done their due diligence, IMO. They had an expert but he was a soil engineer; they had not engaged a hydrologist. There were a couple of things that plaintiff’s counsel learned in the middle of trial; one of them was when I informed them (in testimony) that there were 176 separate properties encompasing almost 200 acres upstream of the site which drained to the pipe in question. I could tell that plaintiff’s counsel wasn’t expecting that… he seemed very surprised…he hadn’t counted on all that stormwater coming from somewhere else, he had thought that all the water draining to the pipe came from the lake. ---
**Author:** ![Snickers](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@Snickers](https://boards.straightdope.com/u/Snickers)\ **Post date:** [April 16, 2010, 2:47pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/39 "2010-04-16T14:47:18Z")
I wasn’t there, but I heard about it. My father’s a doctor, and he’s been sued a couple of times in his 35+ year career. The last one was a doozy. I don’t know what the treatment involved, but the people who brought the suit had an expert up there that they totally weren’t expecting. He basically said that my dad and the doctor he practiced with did everything they could and that their actions saved the woman’s life. She looks at her lawyer, gobsmacked, and yells out right there in court, “He saved my life?! I didn’t know he saved my life!” Needless to say, she didn’t win her case. ---
**Author:** ![Swallowed\_My\_Cellphone](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@Swallowed\_My\_Cellphone](https://boards.straightdope.com/u/Swallowed_My_Cellphone)\ **Post date:** [April 16, 2010, 3:35pm UTC](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116/40 "2010-04-16T15:35:53Z")
> [@AClockworkMelon](#): > > [QUOTE=Dr. Q] > ]but it’s my understanding that in most jurisdictions, any child born/conceived in wedlock is legally considered to be the child of the the husband, regardless of who supplied the sperm. WHAT?! [/QUOTE] Seems weird at first blush, doesn’t it? My uncle married a pregnant woman. She was pregnant when he first met her the father was her ex. They were both young and put the baby up for adoption. Paternity was never contested because it wasn’t relevant to the proceedings. Since the baby was born while my uncle was married to her, on the birth certificate and all the adoption paperwork, he is listed as the legal birth father, even though the identity the the true father is known. [Previous page](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116.md?page=1) [Next page](https://boards.straightdope.com/t/things-your-lawyer-should-not-have-to-learn-from-counsel-opposite/536116.md?page=3)