Transcript

Scott Becker: I think that competency becomes important when the family law arena starts to act like a criminal law arena, because that’s where all this stuff comes from. That’s where all these protections come from.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today, we’re excited to welcome judge Scott Becker to the Texas Family Law Insiders podcast. Judge Becker is a partner at McCathern, Shokouhi, Evans, & Grinke in Frisco, Texas. Before joining McCathern, and he presided over the 219th Judicial District Court in Collin County for eight years. As a judge of a general jurisdiction court, Judge Becker presided over civil, family and criminal law matters. He’s board certified in both family law and civil trial law, and he practices family, civil and criminal law. Judge Becker has a Bachelor of Arts from the University of Texas and a JD from SMU School of Law. Thank you so much for joining us today.

Scott: Thanks for having me. It’s really cool to be here.

Holly: So why don’t you tell us a bit about your background?

Scott: Well, I mean, I was told from an early age, you know, you’re gonna make a good lawyer one day. When you’re 10, and 11, and 12 years old, and you constantly argue and smart off to adults in your life, whether they be parents or coaches or teachers. You know, they think they’re just being witty and, and kind of sarcastic in that. But if you hear that your whole life, you tend to internalize it over time.

And as I got older, and watch some movies and TV shows that had, you know, lawyers in it, and saw what they were doing, and I thought those adults might be right, like, I can do that. And instead of getting criticized for it, as a child, I can get like a job doing that. So it just kind of blossomed that way from an early age. And I thought about other stuff and always just kind of kept drifting back to becoming a lawyer one day. So, that’s how I got here.

Holly: So what you’re telling me is the fact that I’ve been telling my daughter for years that she would be a great lawyer is eventually going to pan out.

Scott: It might or your daughter might be like my wife, who was also told by her father, you know, you’d argue with a fence post Jaina Lee, and she heard it her life. And she went into economics and marketing and sales and has like a real job. And she’s not a lawyer. So that could be your daughter, too.

Holly: I’ll, hold out hope. So how would you describe your current practice?

Scott: Well, I was thinking about that, in anticipation of our session today. And I would say that probably 75 to 85%, of what I do is, is family law related. And then the other 15% is I just fix stuff. I have the good fortune to represent several athletes. Our firm has a good relationship with several athletes in the area and some very connected families. And so it’s often I find myself doing things related to those clients that have nothing to do with family law, just solving problems. So I put out fires.

Holly: You’re a fixer. So today, the reason I thought to bring you on the podcast was because I saw your presentation and advanced in 2022 on the issue of competency, and I thought it was a really interesting topic that not a lot of family lawyers think a whole lot about. And we certainly don’t want to be in a position where we’ve never thought about it and all sudden, bam, we’re faced with it in court. So today, we’re going to kind of dive into this a little bit and help some female lawyers figure it out. So when is competency relevant to clients in a family law context?

Scott: Well, I’m glad we get a chance to talk about this, because as you pointed out, it’s not something that we’re going to encounter frequently. In fact, you might see it once in your entire family law career, it’s pretty rare. It doesn’t happen a lot in the criminal context, which is kind of the background that I had that allowed me to alert to this particular situation. And kind of, you know, deal with it on the fly. Had I not had that background, I’m not sure I would have dealt with this in the same way when it happened to a client of mine.

I will want to make sure that I make very clear to your listeners and viewers that when this issue comes up, it’s very rare. And if you have to go down this path and assert this, it’s like a nuclear option. This is not your first choice of things to do on your spectrum of how to represent your clients. It’s something you want to be very cautious with to use only sparingly. And if you need to use it, use it but don’t just see oh wait, I bet that can work on my case next week.

Don’t do that because if you overuse this, you will become viewed as an obstructionist lawyer that, you know, is just doing things to delay and stall, and it’ll be harder for you to negotiate with opposing counsel in other cases. And when you stand in front of judges, they’re going to just going to discount what you have to say, because they think that you’re just that obstructionist lawyer. So if it happens, use it and do these things. But, be careful, don’t just pull out this huge nuclear weapon for just a simple little matter here and there, okay.

I think that competency becomes important when the family law arena starts to act like a criminal law arena, because that’s where all this stuff comes from. That’s where all these protections come from. And when you’re dealing with enforcements where your client might face jail time, then the statutes and the case law deal with that and call it sort of a quasi criminal proceeding. But I’ve never heard of a quasi jail. Like if your client is going to go to jail, to me, that’s a real criminal matter. And you need to become familiar with this process to make sure your client is competent to undergo those proceedings.

Holly: So in our typical, you know, divorce trial, or a temporary orders hearing, whatever, competency is really not going to be a factor, except to the extent maybe somebody needs a guardian. But when we’re talking about declaring somebody incompetent, we have to have that criminal piece?

Scott: I think so. And you’re right, there are, I mean, there are concerns in representing people that we think might not be competent to make decisions for themselves and help us as their lawyers in guiding and making decisions for how they want to handle their case. And in that arena, there’s a different path, you can go down to get somebody declared incompetent, and get them a guardian appointed and take the necessary precautions, there. I’m not here to talk about that today. That’s not what occurred.

And there’s, that’s a slower process. That’s one where you can put it on pause, and you can figure things out, and you can take the right steps. What I had to deal with was much more quickly paced, and kind of popped up on the fly without the ability to have these other motions filed and hearings held. They were held in a much more compressed timeframe. And so when we’re talking about competency, it has two parts to it. When somebody is trying to put our client in jail, we’re gonna go back to the criminal context here, the criminal definitions, the Code of Criminal Procedure, because that’s really what’s happening.

A criminal process is taking place, it’s just being prosecuted by somebody other than the state of Texas. It’s being privately prosecuted, but it’s still really a criminal proceeding, okay. And I wrote some notes down here, competency, in my paper, you’ll see that it talks about somebody is competent, if they have an ability to assist their attorney in prosecuting or defending the claims, and they have a rational understanding of what the heck is going on. Okay, if either of those two things is missing, then the person is not competent.

Holly: We were kind of talking about, you know, what, what qualifies as competent or incompetent. And I know, every family lawyer out there has had their fair share of what we would call crazy clients. And that percentage is going to be way higher than the percentage of clients that are actually not competent. So what are some signs or things that we can look for in our crazy client that might tell us okay, this goes beyond typical family law craziness?

Scott: Well, first of all, you’re going to know your client better than anybody. So you’re going to have a baseline for each client, right? Hopefully, you’ve met the client before you showed up at the courthouse for the hearing that day. Hopefully, you’ve at least Zoomed with them. And now that we’re at least here in North Texas, we’re kind of pretty much done with Zoom hearings, and we’re having clients come into our offices, we’re able to meet face to face more frequently. You’ll have a baseline for what they’re, you know, regular personality is right? And you’ll have a baseline for when they start getting upset or freaked out or overly anxious.

And you’ll know okay, that’s normal, you know, quote-unquote, normal responses to hearing negative information or being concerned about an adverse outcome at court. And you’ll know, okay, what should concern you is when you encounter your client, and they are beyond that baseline, like they’re beyond the normal level of freakout that you’ve seen in them. And they’re beyond the normal level of freakout you’ve seen in some of your worst clients. Like whoa. Some and basically, you’ll see the behavior and you’ll think something’s off today. There’s something’s wrong.

Like this is, it’s when that happens that you go, oh, maybe there’s something else going on here. It could be something as simple as maybe you’re dealing with a client with a substance abuse issue. And when they get nervous about coming to court, they use the substances and it freaks them out. And by the time they show up for court, they’re either, you know, super stoned, or super amped, or, you know, drunk or something like that. And you can tell those things. Well, they’re in no condition to go into a courtroom and testify if they’ve just had, you know, half a bottle of Jack Daniels in the parking lot to smooth things out. That’s, that’s not competent. The way you fix that might be judge, we need to delay today.

So my client can sober up, you know, it’s different than what I encountered. But anytime you start seeing clients behaving beyond that baseline that you’re used to, and beyond that baseline of what would be acceptable for just all right, they’re gonna get nervous, they’re gonna get upset, they’re gonna get excited, they’re gonna get angry, they’re gonna get sad. Like, this is beyond that. The client that I engaged, experienced all of those emotions in about 67 seconds. That was my first clue that oh, my goodness, this is beyond normal. I mean, and if you read the paper that I wrote, he had the appearance of normalcy. He was dressed appropriately for court wearing a very nice suit, he had very nice, you know, great head of hair, it was all combed well, he had great shoes, he just looked like you want your clients to appear in court.

And I left him for five minutes and came back, and his hair was a wreck. He looked like he slept in a gutter. I mean, he was crying, he was laughing, he was banging his head against the table, he was telling himself stupid, he was saying horrible things about her, all in the span of 30 seconds. And my favorite thing was, his shirt wouldn’t stay tucked into his pants, if you had stapled gunned it to his hips, it was just not gonna happen. And I couldn’t deal with the guy. I couldn’t communicate with him. And that’s what triggered for me this thought of man, if this was a criminal case, he’s not competent to proceed in this matter. And then it hit me oh, my goodness, it is a criminal case, they’re trying to put him in jail. So that’s what kind of started the analysis for me.

Holly: So what do we do if we have a client where we have those concerns about competency?

Scott: Well, now that you’ve, you know, engaged this podcast, and you’re going to read the paper afterwards, and so on, it’s going to detail for you the steps, but the first thing is, you want to make the judge and the other lawyer aware of your concerns. You don’t want to go in there, and just pop this on them by surprise. You know, as they’re ready to start the hearing, you go oh, like, you’re gonna need to make a record. But before you do that, you should probably pull the other lawyer aside and see if you can’t go have an informal chat with the judge and say, judge, I’m seeing some things that are beyond the norm here.

And I’m concerned that my client may not be competent to proceed, and I’m gonna have to make a record that way. That way, you’re giving the judge a heads up, we’re about to venture into some weird territory. Maybe the judge will have the opportunity to pull out those parts of the code and familiarize themselves. Maybe the judge has dealt with it before. Maybe you’re dealing with a judge of a general jurisdiction court, and they’ve had to deal with competency concerns in criminal matters. But you don’t want to just spring this on them at the last second, like, before, anybody has a heads up, okay.

Holly: So you mentioned that you’re gonna have to make a record. What sort of things are you going to put on the record, and I, what immediately occurs to me as a concern here is the ethical rules that say we can’t say anything detrimental to our clients or take any action detrimental to our clients, and sharing the things that we’ve witnessed, arguably could be detrimental to them.

Scott: I hear your concerns. And I would say that if we don’t share those observations on the record, because then, first of all, my client’s appearance was also notable in the courtroom. So his disheveled appearance, his unkempt appearance, his crazy look, and his behavior and his actions were all observable by others. So I was merely having the record reflect what was happening. I was not conveying any privileged information. And I always made certain to stop short of doing that and saying, I cannot convey anything that my client has conveyed to me under attorney-client privilege.

But I can express to the court that I have various huge concerns about his ability to proceed today, based on the communications we’re having. I think I can say things like that, that allows me to walk that tightrope there. The burden at the beginning of this process starts with me. And the burden is really low. It is simply to raise the issue. And all that needs to happen if you look at the code is it’s any source can provide some information. Well, I’m a source and I’m providing some information and I am documenting on the record, why I have these concerns. Okay.

As soon as I do that the rest of the process, the burden shifts to the court and to the opposing counsel to show that, yeah, you may have these concerns, but the court is satisfied that your client is competent, or we’ve provided information for the court sufficient to show he is competent, and we can keep going here. I think the most prudent course of action for a judge in this instance, is once the record is made, to at least have the client formally examined for competency by the appropriate officials that are designated in the Code of Criminal Procedure who’s considered a competent individual to conduct these evaluations, they can typically be conducted within a week. So we’re not talking about a delay of, of weeks and months.

And that way, the judge has gotten that blessing to move forward and say, yep, a professional has looked at him. And while he may be upset, or angry, or she may be emotional, or what have you, it’s not to the point where they’re not competent to proceed, and then the judge has got that shield to keep going. If the judge does keep going without conducting that hearing, and the judge takes it upon themselves to say, I’ve observed this individual, and I think they’re competent. All that does is it builds in a bullet point for appeal. Because if the judge does find them in contempt, and incarcerate them, that’s the first thing that’s going to be in any appellate brief is they weren’t they were sanctioned and punished and incarcerated, and not competent, that’s gonna be the first thing that gets them released.

Holly: So if you, the judge orders, you know, I’m gonna have this person evaluated by so and so, who foots the bill for that evaluation?

Scott: Well, that was an interesting little wrinkle. And as we mentioned before, in most criminal cases, most of the defendants going through this experience tend to be indigent. And so the cost is fronted by the county that is prosecuting that defendant. In this situation, we’re not dealing with an indigent defendant. I mean, they’ve hired private counsel. But they’re probably in court, one of the reasons they’re probably in court is because they’re not paying certain financial obligations. So they’re not exactly swimming in cash either.

And I think what we resolved to do was we made the county front the bill, but it gets tacked on like a court costs, like any other court cost, or a filing fee or service fee or anything of that nature. And then when the judge ultimately makes a ruling on the ultimate enforcement, that’s gonna happen, eventually, the court costs can be tagged against that party down the road. So upfront, you’re probably looking at the county paying for it. On the back end, if there’s a negative outcome, then that person is probably going to be paying for all those costs. The person who was incompetent at the time.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. For more information, visit Draperfirm.com, or call 469-715-6801.

Holly: Is there anything else involved in the evaluation beyond this third party, I don’t know if it’s a psychologist or whomever it is that’s doing that evaluation?

Scott: Well, that typically what’s done is that person conducts the evaluation according to the standards, they’re meant to follow in the Code of Criminal Procedure and according to their practice guidelines within their profession. And then they’ll generate a written report. And typically, before they generate that report, they’ll reach out to the lawyers ahead of time and saying, look, I did the examination. And here’s my preliminary findings, I’m going to generate a report that says this, just giving you the heads up. They do that as a cursory function. A lot of times just like we do in custody evals and things like that, that experts will sometimes reach out to us ahead of time and, and give us a heads up as to the general tenor of what they’re going to be writing in their reports.

And that happened in this case. The expert reached out and as it turns out, in my case, my client was found to not be competent. The expert will ask for as much information as they can get in a quick period of time. If your client does have a history of mental illness, or substance abuse or treatment or anything like that, they’re going to want to look at those records, the evaluator is going to want to see that because that impacts the lens that they’re looking through to evaluate this person. And so if they have that, and they can get that quickly, they will do that.

Holly: So you get your evaluation back and it says this party is not competent. What happens?

Scott: Well, that report is also forwarded to the court so the judge is made aware and typically the judge will have scheduled like a callback setting just to go hey, everybody, come back here. So we can talk about this after the evaluation is done. And it’s typically done with the idea of if the guy is competent, we’re having your enforcement hearing that day. And if it turns out that your guy is not competent, then we’ll all figure out what the next step is at that follow up, come back hearing. And typically what the judge does it that point is, well I say typically, like this has happened a lot.

What we figured out, the next step was, after my guy was found to be incompetent was, we came back to court, I had been retained by my client solely for the purposes of representing him on the enforcement. Once he was determined not to be competent, there were some concerns procedurally about whether or not it was a conflict for me to represent him on the competency concerns. And the court actually determined that he needed to be, my client needed to be appointed separate counsel for the competency contest that was now going on.

Because the other side had a right to contest the findings, or have a trial on those and, and I had not been retained to address that issue. And now that my client is not competent, he also can’t contract with me to do anything else. And he can’t negotiate with the other side. He can’t, it’s sort of it really freezes things up, which is sort of gets back to why I told everybody at the beginning, if you’re going to play this card, make sure this really applies because they can really muck stuff up and be a delay and everything and you don’t want to be seen as that stall lawyer that delay lawyer that obstructionist

Holly: So I assume then if somebody’s not competent, the court is going to postpone the hearing further. How can that person regain competence?

Scott: That’s a matter for that person and the evaluator and the treatment programs. Typically, if it’s a substance abuse issue, there’ll be some treatment to deal with that. Or if there’s other deeper mental health concerns, does the client need some mental health medication that he hasn’t been taking, or she hasn’t been taking, and they need to be monitored to take that. They’ll address that. So it’s really different for every person, as to what is causing the incompetence, and how long it might take to recover competency. And what steps might be necessary to do that. That’s a person-by-person, case-by-case instance. But you’re right in that the enforcement itself is not going away, it’s just on pause, while competency is restored.

Holly: So I would assume then that the evaluation is going to say, you know, my recommendations are that this person do A, B and C to restore competency.

Scott: It typically is even the one we had was even sort of hollower than that, or more top line than that, and it just said can be restored to competency through outpatient treatment. Okay. And then there’s, and since they don’t know exactly what’s going to be necessary to restore them to competency then there’s a collaboration between the treatment providers and the court. In our instance, in Collin County, we have a mental health coordinator, a woman by the name of Elise Ferguson, who is fantastic.

The bulk of her work involves working with the criminal justice system and potentially incompetent defendants of crimes. But she was an amazing resource for me on the fly in this matter, and then afterwards, she was helpful in coordinating different treatment options for my client and different and just kind of overseeing, making sure that my client didn’t just go in the wind, and never go to treatment and never get better and cause this thing to hang up forever on the court’s docket. You don’t you don’t want that either.

Holly: So I mean, I can envision a client who doesn’t want to have an enforcement hearing, because they did some things they shouldn’t have done, and they could be going to jail, who says, I’m not gonna go get outpatient treatment. I’m not gonna go to rehab. I’m not gonna do whatever this evaluation said. Does the court, can the court order them to do it? Does the court order them to do it?

Scott: The court can, if they take this first step, and outpatient is not working, then the parties can go back to the judge. And of course, like, I’m not gonna go back to the judge and say, Judge, my client won’t go to treatment, please order him to go to inpatient, you know, I’m not going to, I’m not going to make life harder for my client. But the other party seeking to hold my client in contempt is certainly going to be kept up to speed on the recovery process, and if my guy is doing what he’s supposed to or not.

And the providers should be reporting back to the court, so the court can on their own motion at some point, say, for instance, they might have periodic check back hearings like we had before. And if at one of those it’s determined that the client hasn’t gone to a single outpatient treatment program, for whatever reason, either because they’re willingly avoiding them or because part of their illness is preventing them from being healthy enough to and be responsible enough to go to treatment, and to take their meds as prescribed, and so forth and so on. The judge can take that information into account and the judge can, under the Code order somebody into inpatient treatment.

Holly: So we’ve mostly talked about what to do and what it looks like when you are representing the person who might be incompetent. So let’s flip it a little bit and talk about if you’re representing the one seeking the enforcement, and this happens on the other side. What are your options?

Scott: Well, first off, I want to point out that my opponent in this matter was Ryan Bauerle, and he was really good. He did a really amazing job. I mean, I thought I had a minor advantage in the sense that I had at least had a criminal background. And I might have been trying to figure this out as I go along. But he was trying to figure out how to respond to it as fast as I was trying to figure out how to make the argument and he did an amazing job. Okay. I noticed he was one of your other speakers on here on another topic, so I’m sure he did a fantastic job of that video in that podcast as well.

The first thing I will point out is the only reason that this contempt and enforcement and competency issue comes into effect is because of the aspect of incarceration. So if if you want to take incarceration off the table, then all of these protections about competency tend to fall to the back, and they don’t they don’t slow things down. That’s a conversation we’ve probably all had to have with our clients for a variety of reasons. Like, do you really want to send them to jail, the kids are gonna hate you for sending their parent to jail, and all these, we’ve all had that talk.

And sometimes our clients are like, yeah, I’m not getting any money from them anyway. And the kids already hate me. So why don’t I send them to jail, maybe they’ll finally pay. It happens. In this instance, I will tell you that kids feelings towards a parent weren’t a consideration, wasn’t a factor. I can’t share with you, I really don’t know why the other client was insistent upon pursuing incarceration. But they were and so that’s why we had to go the rest of the steps. But that’s the first thing you can do to avoid this fight is just don’t have it, just take jail off the table.

Holly: So what if you, you know, your client wants, they want them thrown in jail, and you’re going forward down that path, is there a way to contest their claim of incompetency? And at what stage do you do that?

Scott: Well, if the first step that you need to be contesting it is your call when I said I had to raise the issue, and make a record of why I thought my client’s competency was a concern. And I’m trying to persuade the judge to just at least conduct an exam. You need to be writing everything down that I’m pointing out on the record and making your own counter record, just in case the judge says, yeah, I’m not going to conduct that exam, because based on everything that’s been presented to me here, I don’t think that gives concerns about competency. So you want to be able to give the judge enough things on the record for the judge to hang their hat on to not even conduct the hearing.

So, for instance, in our hearing, as I was trying to make my case, my client was rather vocal about his opinions about Mr. Bauerle and was using some rather unkind language. And my client was saying it under his breath, but loud enough for everyone to hear, even though he was saying it under his breath. I think at one point, the judge even stopped things down and admonished my client, very firmly and appropriately. He should have been admonished. So when those things are being said, my client, Ryan is making a record of yeah, that’s the way somebody is going to react when the other lawyer is trying to throw them in jail, they’re gonna be mad at me, they’re gonna call me names. That’s, that’s not evidence of a lack of competence.

That’s an awareness of what’s going on. They know exactly what’s going on. And so he was trying to take all of the factors I was showing to show how unhinged from reality my client was, to show how connected to reality that behavior was, right. The one part that I think was very hard for him to overcome and ultimately maybe swung the day for me was, I was not just saying my client didn’t understand what was going on. I was saying, my client can’t communicate with me in a rational way to help defend him in this matter.

And so every time he would mouth off something like that, I wouldn’t argue that that’s proof of his disconnect from reality. I would say, see, that’s what I’m dealing with. I can’t communicate with a client who’s going to behave that way. And I think that’s what made it hard for Ryan. It’s going to be a dance there. I think you should expect if you’re the one defending against this, and if you have a judge who wants to be cautious, and a lawyer who knows how to make half a record, you’re probably going to have to face the competency evaluation.

What your best hope for is that that competency evaluation comes back and says, yeah, they’re fine. They’re upset, they’re emotional, they have these issues, but they understand what’s going on and they can communicate with their lawyer. And then you’re going to be gold. If that report comes back, like mine did, where it turns out, they were incompetent, then you have to go other do other things to respond to it. Basically, it’s just wait.

Holly: So when you’re representing the prosecuting party, for lack of a better term, do they play any role either the attorney or the party in that evaluation?

Scott: They don’t participate in the evaluation. And they don’t participate in the generation of the report. But what they can do is once that report comes back from the evaluator, you are entitled to have a competency trial. And if you wish, you can conduct a trial before the court about whether or not to uphold this competency finding. And you can ask the judge to disregard that finding based on additional evidence you’re presenting that show that the alleged incompetent person may be malingering or faking it essentially. That adds great cost and great time. And I believe that now I’m doing this from memory, but I believe the alleged incompetent person has the right to a jury on that issue.

And so here you are, you just wanted to go down to court and get paid for your child support and your unpaid obligations and some medical, and you think you’re having to spend a few grand on your lawyer that you think you’re gonna recover in attorney’s fees if you win your enforcement hearing. And now all of a sudden, you’ve gotten dragged in to this swamp of an argument about competency. And, oh, we’re going to have a jury trial. And we know that those are way more expensive. And all you wanted was to get some child support paid. And some attorneys fees thrown at you for having to go through the extra effort you shouldn’t have had to go through. It can become quite costly for the person who’s owed something.

Holly: So we’re just about out of time. But are there any last little nuggets related to competency that you wanted to make sure our listeners knew?

Scott: I just want to take this opportunity to repeat the idea that look, as you can tell from what we talked about here, it’s, it can become a monster very quickly. And so if you’re the person alleging it, and you’re concerned about it, don’t just do this willy-nilly don’t just fire this off. This is like we said in the beginning a nuclear weapon, it’s not a laser, it’s very cumbersome. And if you’re the person who’s annoyed with the other side, and you feel like you have to send them to jail in order to make a point, and, like, really think long and hard about that, because, you know, nobody walked into their lawyer’s office, at least, I haven’t found a client yet who said, here’s $150,000, go whip the other side for me.

Usually what they say is, I don’t know if I have enough money to hire you. But here’s a little bit and $60,000 later, they’re like, how did this happen? And that can very quickly happen with an enforcement proceeding, where competency is raised validly on the other side. And you really need to check yourself and figure out do we really want to be down this road? Or do we want to stop throwing good money after bad, and figure out some other way to solve this problem?

Holly: So something like that pops up. You show up at the court and there’s a competency question and the people who’ve known this person for a while think this is not normal behavior for this person. Should you consider saying, can we just continue this for a few weeks, and then come back and see if this issue seems to have resolved itself before you go down that competency path?

Scott: Absolutely. If there’s no hearing to be had, I don’t need to raise the competency issue in front of the judge at that hearing that day. You can just reset it. Now, if the concerns persist in between, now I as the lawyer for the person who may be off their nut, okay, that’s a legal term. I might have to start pursuing those other avenues. Like, I don’t think this is just the stress of the hearing. I think there may be some other issues at play here. And I might need to go look at going to the probate court and getting them a guardian, and doing those other things that are beyond just this hearing. I would be nervous about doing those things as well.

Because as soon as you allege incompetence, the other thing we touched on is you can’t negotiate a deal with the other side. Because I can’t go to my client who I’ve just told the court is incapable of negotiating with me and negotiate a deal. I can’t seek their approval. They’re legally incompetent until they’re not. And if they have a guardian appointed through the other longer process, well, now I’ve got to include the cost of that guardian’s work and time and factor that into any deal that might be struck.

Holly: All right, well, very interesting. Hopefully our family law friends out there have picked up some good information that they hopefully never have to use, but they might need it. So one question that I like to ask everyone who comes on the podcast is this. If you could give one piece of advice to young family lawyers, what would it be?

Scott: I would give this not just to family lawyers, but to younger lawyers everywhere. You need to be kind to all the court staff, all the opposing counsel and their staff. Like, the biggest mistake I see young lawyers make is perhaps they think that other staff are not lawyers, there are somehow less than a lawyer. And so they don’t necessarily, they’re not necessarily mean or rude, but they may be dismissive or condescending, or just not take the advice of those other staff members seriously. And I think one of the smartest things I ever did as a baby lawyer was the paralegals for the partners that I worked for, you know, I was asked to write a letter.

And I wrote it the best way I knew how, and showed it to them thinking, okay, I did my job. And they politely came back to me and said, you know, you might want to change this, and the partner likes it this way. And instead of me going, hey, I’m the lawyer, do what I say. I said, thank you very much. You’ve been a paralegal way longer than I’ve been a lawyer. So I’m gonna take your advice, and I’m going to, and I did that with our office staff. I did that with court staff. I did that with the opposing attorneys as often as possible, because those people can screw you, and you won’t even know it’s happening. You won’t even know it was them. So just be kind to them and, and hear what they have to say because they can probably help you way more than you realize.

Holly: So where can our listeners go if they want to learn more about you?

Scott: Well, our law firm’s website is www.mccathernlaw.com. You can go to my website there. Occasionally I send out tweets under @JudgeBecker. But most of the time I found myself lurking on social media rather than participating in it these days. And if you want, you know, find me on the website, email me, I’ll give you my cell phone. I’ll answer any questions you got. You can learn more that way.

Holly: Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast take a second to leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.