confused--how do you prove something is not true if it never happened?

[happyinorbit]

sorry for the lack of clarity! The statements have not been expressed outloud. Only as a response to a petition. Although, my attorney is quite confused because she stated that he has not really responded to anything and actually uses this filing as more of a petition of his own. She stated that clearly he is not a very good attorney and it appears he does not know what he is doing. Never mind that though......I justl looked at his paperwork and it does not state that anything about under penalty of perjury. My paperwork, drawn up by my attorney does have that statement, but his does not! Would this be implied, or does it really need to have that statement for me to move forward?

 

[quincy]

First, there are many many attorneys who are excellent, knowledgeable and successful lawyers, but their chosen field of law may never take them inside a courtroom. Their lack of experience in a court environment may make them fumble a bit with court forms and procedures, but that does not (necessarily) make them bad attorneys.

Your former husband is acting pro se in your custody matter and, with his legal background, he has an advantage over most pro se's, but unless he is a litigator, he is bound to make some mistakes.

That said, if the petition signed by your former husband is not a sworn petition, then the false statements made in the petition would not be perjury. They would just be false statements. Perjury is the act of intentionally making knowingly false or misleading statements under oath. Where there is no oath, there is no perjury.

It probably would not hurt for you and/or your attorney to somehow, perhaps in casual conversation with your former husband or within earshot of your former husband, bring up the fact that lying under oath is considered perjury and is prosecuted as a Class 4 felony in Arizona. That may be a big enough hint to your former husband so that he will refrain from slandering you in court.

Otherwise, there is not much for you to do. Call him out on the false allegations in court if they are made, and then act as you see fit on the perjury.

Good luck.

 

[happyinorbit]

haha! point taken and true. BUT in this case he is a former prosecutor, and defense attorney. He has LOTS of experience.

I will ask my attorney to ask him at our next hearing if he will stipulate to the statements he makes in his motion as true under penality of perjury. Perhaps that will do the trick!
Honestly, unless he will attest to it as the truth...why should it even be considered?

 

[quincy]

Why should it even be considered? I think we have all suggested to you that it probably WON'T be considered. There is no reason for the judge to consider it.

Maybe your former husband included these false statements in his petition (without swearing under oath to the truth of them) because, one, he knows that without swearing to the truth of the statements he has not perjured himself and, two, he knows that without an oath the statements are merely defamatory lies that you can do nothing about legally and, three, he knows that the statements would worry you - enough so that you would head over to FA with the question "how do you prove something is not true if it never happened?"

I honestly would not worry about the lies your former husband is making in his petition. He is a former husband. I believe it is a law that former husbands must lie about their former wives.

 

[Mass_Shyster]

Even of this is not sworn testimony, it is (if false statements were made on a court filing) a violation of the Arizona Rules of Professional Conduct:

ER 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

See MyAZBar :: Arizona Rules of Professional Conduct

 

[happyinorbit]

my thoughts exactly. He may be a fool, but he aint no dummy!
I find it so curious that the "under penalty of perjury" is missing. Again, I am not worried about how this translates in the court proceeding. I'm just saying, if my attorney asks him to state that he made these statements under penality of perjury....that it might be added "or then why should it be considered". So glad to know about the rules of conduct.Thank you for looking that up for me.

 

[Mass_Shyster]

One more thing:

Under the Arizona Rules of Civil Procedure, Rule 11, your attorney should be able to ask for sanctions for his signature on the pleading.

16 A.R.S. Rules of Civil Procedure, Rule 11(a)

Arizona Revised Statutes Annotated Currentness
Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)
III. Pleadings and Motions; Pretrial Procedures (Refs & Annos)
Rule 11. Signing of Pleadings (Refs & Annos)
Current SectionRule 11(a). Signing of pleadings, motions and other papers; sanctions


Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.

 

[quincy]

Nice research, Steve.

I am a bit curious as to whether a court and/or Bar Association would give to an attorney who is acting pro se the same slack that they often give pro se's who have no legal background. Although all attorneys are presumed able to try cases, in reality this is a fairly big presumption.

Not that this would apply here, with an attorney/pro se who is a former prosecutor and defense attorney, and not that any slack would necessarily be given for the deliberate telling of falsehoods, regardless of the legal background of the pro se. . . . .

 

[happyinorbit]

Thank you Steve. You are obviously a very giving person.

My attorney has advised me to hold off doing anything of this nature until after our trail.....as to avoid looking vindictive. Who me?

Anyway, the extra info will certainly be helpful moving forward. I am amazed at all the being offered in this forum. Thanks so much.

 

[happyinorbit]

now, i have to say that he did sign the document. his signature is there. however it is missing the under penalty of perjury line. the statute does not say anything other than the document needs to be signed. what am i missing?