SPEAKER_02 0:00

All right, so Keith, let's progress a little bit in the process. So at this point, you've been appointed, you've done the investigation that you've talked about, and now the the case is sort of coming to a head. We're either going to come to the point where we can reach agreements or it's going to have to go to trial. Talk to us a little bit about how your work as a GAL proceeds at that point.

SPEAKER_01 0:21

And I have not done this a lot. I generally have independent conversations with both lawyers. I know a lot of GALs who pull both lawyers into their office and sit them down and say, this is the way this is going. And Lynn Worley, for instance, has had a lot of success with that. Um, I haven't done that a ton. Um, I uh I've talked to everybody and try to work it out, and sometimes it works, and but when it doesn't, the next step is mediation. So, Keith, um explain to us what mediation is. Okay. So mediation is bringing in an independent person who's there not to represent anybody or anybody's interests except to try to bring the parties to an agreement.

SPEAKER_02 1:08

Yeah.

unknown 1:09

Yeah.

SPEAKER_02 1:09

When I act as mediator, I often say I kind of view my client as the deal. I want to get the deal done the best that I can.

SPEAKER_01 1:19

Yeah, without any regard to the details of the deal. It's if we can agree, great.

SPEAKER_02 1:24

Right. Exactly. So how as a GAL, how do you participate in mediation?

SPEAKER_01 1:30

It's interesting because as a GAL, very much like the mediator, I'm there to try to get these people to avoid the damage of litigating a child custody case. Right. And so it's different for every case as I try to determine what's going to work best here. So sometimes uh often in mediations, the wife and her attorney will be in one room and the husband and his attorney won't be in the other. And sometimes as the guardian ad lightum, I go back and forth. Um, sometimes I'll stay in one room, sometimes I'll be in an independent room. And do you leave that up to the mediator? I work with the mediator to make that choice. Yeah. Because um while the judge leans on the guardian ad lightum a lot, the mediator leans on the guardian ad lightum a ton. Right. Because I know the case, I know the parties, I know their proclivities, and so I'm gonna give the her, the the mediator, lots of hints on how to handle these people.

SPEAKER_02 2:48

Right. Right, because that is tough. As from the mediator's perspective, you're meeting these people for the very first time, there's tons of tension because they feel like this is a critical moment in the case, which it really could be. And you're trying on the fly to read personalities and communicate effectively in the style that's helpful for those people, that individual person in that room, taking into account the hopefully the assistance, but sometimes the interference of their attorney and getting a deal done and being reasonable and having fair expectations.

SPEAKER_01 3:23

Sure. And the mediator is I mean, outside of a couple cases where you have two great lawyers that provide full mediation statements, the mediator is largely ignorant of where the hot spots are, you know, where they are and what to avoid. And you the guardian and lightem knows those things.

SPEAKER_02 3:43

Yeah. So let's say that mediation is unsuccessful, and the case is going to go to trial. How then as a guardian and lightem are you preparing for trial?

SPEAKER_01 3:55

Well, it's interesting because we all do it a little differently. Um, by statute and by case law, we're a party and we get to call witness, uh witnesses, we get to uh enter exhibits. Uh we're also an expert that has produced a report that's going to come in, and um, we get to uh uh cross-examine um the witnesses that the other parties call. And so it can be a very active uh role, and it can be a very um laid-back role. I had a trial this last week with a Guardian Adlium, and I think he asked in a half-day trial, asked three questions total.

SPEAKER_02 4:36

Yeah. Yeah. So from my perspective, the Guardians Adlium in Oklahoma, at least in the counties in which I practice, are tend to be much less active participants in the trial than I experienced in Virginia. I'm much less engaged.

unknown 4:54

Yeah.

SPEAKER_00 4:55

That's been my experience as well, as one of the witnesses.

SPEAKER_01 4:59

And it it's a missed opportunity, I think. When I teach Guardian Headlightems, I talk about this a lot. But you're there to advocate for the child's best interests. Take take the role, you know. And so when they're talking about, you know, property division or or alimony, you don't have a role there. Right. But when they're talking about child support, when they're talking about time divisions, when they're talking about parenting, you know, you need to be active as a GAL.

SPEAKER_02 5:29

And if you're an experienced litigator, like I know you are, as the GAL, you have uh kind of a unique opportunity to play cleanup because you have the people asking questions and you're sitting there thinking to yourself, man, this question should have been asked, or or you hear a response that's uh surprising to you based on your investigation, and it gives you an opportunity to come in at a different angle to get the information in front of the judge that needs to be there.

SPEAKER_01 5:58

Exactly. In a case I recently was trying as a guardian ad litem, um, both mom and dad uh had been aware of basically the child getting caught trafficking drugs at school. And neither brought it up. Neither parent, neither parent bothered to tell their attorneys or me until we got to the courthouse for trial.

unknown 6:23

Yeah.

SPEAKER_01 6:23

And so both attorneys were scared to death to ask a question because they didn't know the answers and they didn't want to sink their client. Yeah. And so the first rule of trial advocacy, well, not the first, but one of the first, is don't ask a question you don't know the answer to. And I got up there and I chewed both their butts from uh while they were on the stand and just roasted them because I didn't care who the answers were. We needed the truth out in court. And um, I think the judge kind of appreciated it. And it actually, I think worked out to the kid's best interest by far because we got to the bottom of it. If we hadn't, if I assume the judge would ask, but we got there more organically because I was there asking the obvious questions that nobody wanted to answer because they just didn't know.

unknown 7:19

Yeah.

SPEAKER_02 7:19

And that's the kind of information that the judge needs. You actually wouldn't be fulfilling your role as an officer of the court and expert appointed by the coin if you didn't get into that area. Because it's not only was it critical for the judge to understand that there's something going on with this kid potentially, but also the judge needed to understand why the parents weren't active in the situation or informing any.

SPEAKER_01 7:42

You know, it was interesting, they were both active in their own way, they never talked to the attorneys or me, and they never talked to each other. Wow. And it's kind of funny because my recommendation in that case changed significantly during the trial. Yeah.

SPEAKER_02 8:01

And how many, and uh when that occurs, uh, I know attorneys sometimes get frustrated, but when you're the guardian laddum and you hear something new that's material to your recommendation, you have an obligation to reassess and see if your recommendation needs to change based on this information you didn't have before.

SPEAKER_01 8:20

Right, and yes, and and uh my change in that case was actually almost more fundamental. Um I thought the kids needed uh counseling. I thought there was a lot of things we could do to improve the way the parents interacted with each other and the kids. But ultimately, what that case demonstrated to me is something I talked about at the beginning of this, and that you have a parent that makes the ultimate decision in a Sol Custy situation on the major things that are going on in the kids' lives, right? And it's not the court's role to be a super parent, right? And so did I think the kids should be in counseling? Yeah. But ultimately the court's role isn't to determine where the kids go to school or when the kids go to counseling or what doctor the kids go to or whether the kids get vaccinated or not. The judge's role is to pick a parent, correct? And then let that parent parent. Right. And so, mid-trial, I listened to the way they handled this situation, and I just said, Hey, Your Honor, I know my report says counseling and all these other things, but you know what? This is a sole custody case case. Um, mom's raising this child, and we need to step back and let her do her job the way she sees best, you know, the way she sees fit. She's not harming the kids. She gets to raise them, not us.

SPEAKER_02 9:58

Yeah, that's called the Constitution of the United States.

SPEAKER_01 10:01

Right. And you know what? It's difficult to look at a kid that I think could really benefit from some counseling and say, yeah, but he's not my kid. So that's a tough thing as a guardian head light up. I advocated for the child's best interests within the framework of the case. That meant this parent should get to make the call. And that's what I did. And it was kind of freeing.

SPEAKER_02 10:29

So we've talked about the investigation, we've talked about mediation, we've talked about trial. Um, I'm kind of curious how you think a parent can best work with a JAL for the best interest of their child.

SPEAKER_01 10:44

Before we leave the trial part, can I uh answer a question you didn't ask? Go for it. One of the things I do as part of my practice is I find reasons to testify in court. Because my clients, when I represent mom or dad, they're on the stand and it's very difficult and it's very unnatural. And I love being in a courtroom because I get to ask questions and I get to do my do my thing my way. And the courtroom is very different when you're on the witness chair. Oh, yeah. And so I get in the witness chair as a fee expert, as a G A L, and the room's very different. And you don't get to talk about the things you want to, like just right now, right? You didn't ask me about this, but I want to talk about it. So I got to stop and say, hey, I want to talk about this, right? You can't do that from the witness stand. Except as a G A L. Right. So I get to be on the stand and mom's attorney and dad's attorney, and the judge asks me questions, but I also get to offer my opinion and ask everybody else questions. And that's a super fun, uh super fun role because I get to be a super witness. I don't, I'm just not limited to what I get asked. And that's a huge frustration for mom and dad as they're in trial because I really want to tell this story, and nobody asked me. And I I talk to my clients about that, and it's a constant thing that they experience. Right. So I get to tell my story regardless of whether I'm asked about it.

SPEAKER_00 12:25

And I can I can echo that frustration as a witness. And I really like what you said, Keith, about being the cleanup person to come behind everybody else and ask the right questions of a witness such as myself to get information that we were not allowed to say earlier.

SPEAKER_01 12:46

And part of my role, talking about the thing I do as a GAL, is I'm going to work really hard to keep people like Linda, people like Jamie Vote, um the other professionals in town that provide these services that I rely on to keep them out of the courtroom. That would be great. It's cheaper, it's faster. And so I can say, I've interviewed Linda and I've interviewed Jamie and I've interviewed the kids, and here's my conclusions based on that. And the judge might say, Well, what did Linda tell you? And I can certainly talk about that without it being hearsay, and really get into all that without going to the expense, hassle, and potential downside for Linda of being in the courtroom.

SPEAKER_02 13:30

And so, for folks who don't understand, can you very briefly, because I know it could go on forever, explain what hearsay is and why, as an expert witness, the GASS fine, you can bring in what Linda had to say and it not be hearsay.

SPEAKER_01 13:45

Sometimes I'm not sure that Ron hasn't talked to a bunch of people that know the things that get me really excited. So this is one of those embarrassing things where I'm a complete nerd about. And when I teach other lawyers, um, one of the topics is um, for the love of God, understand what hearsay is. Um, because very few lawyers do, and most judges don't. So here's my three-minute essay, oral essay on what hearsay is and is not. And go, I'm timing you. Okay, ready? So it's core definition is hearsay is an out-of- out-of-court statement made in court for the truth of the matter asserted. So if I'm in court, I can't necessarily say Linda was driving a blue car that day. Okay. If we're trying to prove that Linda was driving a blue car. And so that definition does not exclude everything that comes out of someone's mouth outside of court, right? So, first of all, hearsay doesn't apply to the parties of the case. So anybody can say in the Ron versus his wife case, well, Ron said this, because Ron's a party. Okay. And I'm simplifying everything. It also only applies to statements, right? So then Ron asked, Where's dinner? That's not hearsay. Because it's not a statement, it's a question. Um I played that in court the other day, and the judge looked at me like, I loved it. Oh okay, so that's the basics. There's tons and tons of exceptions to hearsay. But you also have to be offering it for the truth of the matter asserted. So the child told me dad popped him in the mouth and split his lip and it bled. Objection, Your Honor, hearsay. Child made that statement out of court. Your honor. I'm not offering it for the truth that the dad hit the child and split his lip. I'm offering it because the child believes dad hit him and split his lip. I don't care whether dad really did it or not at this point. What I really want you to know is the kid believes it, and that's not hearsay. And judge's eyes glaze over and opposing counsel's jumping up and down and screaming, but that's not your say.

SPEAKER_02 16:32

And Ron's going, Ugh, Keith. No, no, I'm not. This is all accurate and good information.

SPEAKER_01 16:38

Now, as a wait, wait, but in your in your experience, yes. What percentage of lawyers doing this work get that?

SPEAKER_02 16:47

Yeah, very few. Or the fact that behaviors uh an action is not a statement. Or um observing a person's emotional state, or just all sorts of different things.

SPEAKER_01 16:59

But you what you'll what you'll hear in court constantly is well, what did they say then? And the other side jumps up and says, objection on a hearsay, and the judge sustains. You're like, oh, you're honored no. The next comment is actually a question, yeah, or it's offered for this other thing that's not the truth of the matter asserted.

SPEAKER_02 17:20

So getting back to your role as a GAL and testifying as an expert, sure. How do we get off on hearsay, by the way? Well, because Linda was taught, you were talking about how you would like to be able to help Linda, for example, stay out of court. Oh, and as an and as a GAL, you can help her do that because you can testify about what she told you. And why can you do that as a GAL?

SPEAKER_01 17:38

Okay, so again, not to slam our brethren and sisters that do this, but this is missed by quite a few people. I can talk about hearsay in court, not to establish the truth of what Linda said. So if Linda said the car was blue, and I'm trying to prove the car was blue, um let me take a step back. I can testify about why I made my conclusions that the car was blue. And if I conclude that the car was blue and Linda's out-of-court statement helped lead me there, I get to testify about it, but it only comes in to support my conclusion, not that Linda said not that the car was blue. The truth of that.

SPEAKER_02 18:36

Right. So it's not coming in as substantive evidence, it's coming in as a factor leading to your conclusion, and the parties in the court need to know how you reached your conclusion.

SPEAKER_01 18:46

Exactly. So in my in the big case where this came up, um there was a expert who testified about child, it was a child custody evaluator, and he testified about some things some ancillary witness, some grandmother or something had said. And the other side kept wanting to say those things had been proven in court. And I kept saying, Your Honor, those were admissible only to support the experts' opinion. They've not been demonstrated as facts. And the court got it, but opposing counsel never got it. And he kept doing it over and over and over again to where the court finally was just like, Mr. Jones, I understand your objection. It's sustained, but let him finish his thought.

SPEAKER_02 19:44

Yeah. Yeah. It is a complicated area for folks sometimes. But that's one of the that's one of the benefits that you were talking about. There are limited resources that the court has, and time is the most limited resource. And we're already waiting months and months and months to get a trial date. If you can have the court appoint a guardian of Lytham in whom it has trust, then that guardian can talk to 20, 30 people, look at all sorts of documents, and then have that be part of the report and testimony. And you've now saved having all of these people come in and you can actually spend the time of the court focusing on the real key material witnesses. And it just makes everything more efficient for the court.

SPEAKER_01 20:32

Right. And hopefully it provides a layer of protection to our mental health professionals, uh, particularly, so that they continue to work with us. Right.

SPEAKER_02 20:42

Because that's that's a real problem, is we're we're losing the quality people that we depend on.

SPEAKER_01 20:48

Right. Right. Particularly in Tulsa County. Uh speaking uh just another thing we ought to talk about. What does guardian ad lightum even mean? Guardian protecting the child's best interest in this case. Right. You're not a guardian in any other sense. Right.

SPEAKER_02 21:07

And so, example, so the distinction Keith is making is you're a guardian for the litigation, the ad lightum part. You're not a guardian, for example, getting a guardianship where you have custody. Or you're not a guardian in terms of, you know, the federal government may allow you to receive benefits on in behalf of the person and and do things with it. You're simply appointed for a specific purpose for a short period of time to do that job and then you're done.

SPEAKER_01 21:36

And and part of that is is I mean, that is limited to advocating for that child's best interest.

SPEAKER_02 21:44

And in and if you're in different parts of the world or different places, the Guardian Aladdin may have a bit of a different role. Even some places in Oklahoma, the Guardian Ad Light M is not able to give uh an expert opinion. They're not permitted to testify as to that in some jurisdictions. Have come to the conclusion that that's not their role, and they're simply fact witnesses who investigate and provide the facts to the court because they perceive it to be taking over the court's role in being that decision maker.

SPEAKER_01 22:13

There are actually also not just that, but there are courts that will not allow the Guardian Adams to uh cross-examine witnesses to call witnesses. Um there's just some real unusual takes on the law. Uh it varies a lot, county to county, judge to judge.

SPEAKER_02 22:33

So if that had if there's that variability in Oklahoma, you can only imagine the variability across the United States and throughout the world. Exactly. Well, Linda, is there anything else you want to touch on before we am score?

SPEAKER_00 22:46

I've learned a lot from you too, let me tell you.

SPEAKER_02 22:48

Well, from Tussure.

SPEAKER_00 22:50

And it just it just under underscored why I've enjoyed working with certain GALs for many years because I think we kind of confirm for each other that that we're both you know thinking in the same direction on a lot of things. Or maybe I've heard something that the the GAL hasn't heard. Maybe I've more consistently been listening to the child over a longer period of time or something, and and able to supply, you know, either some validation to what they're thinking or some new material.

SPEAKER_01 23:22

Yeah. I I also think um it's very difficult for the client to pick a GAO to have an opinion about who should be the GAO. And if you look up people on the internet, you're going to see kind of their the people who are most upset with them are going to be the loudest voices. And so you can't necessarily trust the reviews of Linda Van Volkenberg or the reviews of Keith Jones, the reviews of Ron Gore. And that's really where you have to trust your lawyer or your judge to help steer you away from problem GALs. And honestly, there's not a lot of problem GALs out there.

SPEAKER_02 24:09

Well, because they don't mind, they're not getting many cases anymore and they stop doing it.

unknown 24:12

Right.

SPEAKER_01 24:13

Right. But it is it is a matching pattern, you know, of this person's personality and background and thought process matches this couple, doesn't match that couple, that kind of stuff.

SPEAKER_02 24:27

Yeah, exactly. I agree completely with that. Okay. Well, Keith, thank you so much for joining us today and spending your time educating us about this. And I had a great time. So thank you.

SPEAKER_00 24:40

Me too. That's great.

SPEAKER_02 24:42

All right, everybody. We will see you next time. Have a great week.

SPEAKER_00 24:45

Bye.

SPEAKER_02 24:46

Bye.