Record-Phone-CallsWord to the wise about technology – communications can be preserved, printed, and used at trial. Be careful what you say and how you say it. Resist the temptation to respond to every communication sent by an angry spouse or co-parent. It is possible these types of communications are being sent as “bait” to lure you fire back an angry, knee-jerk response. This can hurt your case.

Keep all of your emails with your spouse. If your spouse slips up and sends some damaging emails, those will be evidence in your case. But, you cannot just save the emails that are “good” for your case. The doctrine of spoliation prohibits destruction or hiding of any relevant evidence. So, don’t get delete-happy with emails that relate to the custody or divorce issues.

But, evidence doesn’t just stop with emails. Remember that recording devices exist too. Telephone calls can be recorded. Meetings can be videotaped. Even when you think things are private, like in your home, or even your bedroom, your actions can be recorded. Security cameras or nanny-cams can be turned on with a mobile phone at just-the-right time to record that fight where you react and throw something, but it may not catch the other party’s actions leading up to it.

Now speaking of recording phone calls, ONLY record phone calls to which you are a party. Do NOT record a call if you aren’t on the phone. This rule applies even if you own the house, the phone, and the wires that lead to the phone. This most especially applies if your child is on the phone with the other parent. Further, if you illegally record something and provide it to a witness in the court system, that witness’ testimony will be completely stricken, no matter how good it is. Also be cautious about recording statements made to you by a child. You may think that you are preserving how the child feels about something, but if there is the least bit of suggestion or prompting of answers to the child, the recording will be inadmissible and it will call into question your credibility through the rest of your time in front of the judge. Recordings can be a double-edged sword.

Videotaping also carries an additional burden of the possibility of invasion of privacy. What occurs in public may be subject to public videotaping, but recording what someone does in the privacy of their own home or bedroom or using eavesdropping devices can cross the line and subject you to criminal prosecution.

Under federal law, you may record your own conversations. But preserve those recordings exactly as they are made. Any gaps or errors in the recording will diminish or exclude that evidence. Remember the spoliation doctrine above also applies to recordings. You must produce all recordings that you have. Don’t destroy them, even if they are bad for you.

So, the best maneuver is to watch your “p’s and q’s” at all times, most especially once you know that litigation is coming.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.