Editor’s note: On March 5, the Texas Lawyer editorial department hosted a roundtable discussion in Fort Worth, "Domestic Relations: How to Make Your Case in Family Court." Panelists included 231st District Judge Randy Catterton, 233rd District Judge William Harris, 324th District Judge Jerome Hennigan and 360th District Judge Michael Sinha. This is the first part of the discussion. The second part will be published in an upcoming issue. The judges’ discussion covered pretrial procedures, how lawyers should package documents, what associate judges hear, requests for attorney fees and mediated settlement agreements. It has been edited for length and style.
John Council, senior reporter, Texas Lawyer, Dallas: Good morning. . . . [I]t’s part of my job to report on trial procedures for [the] benefit of you and your clients, and that’s why we are gathered here today with this exceptional panel of Tarrant County family court judges to see what we can learn from them. I want to thank Judge Randy Catterton, Jerry Hennigan, Bill Harris and Michael Sinha for joining us. So without any further ado, let’s start with the questions. . . . What if an opposing party sets a case for a hearing and the opposing lawyer either doesn’t show up in your courtroom or really late? How long would you wait to make that attorney wait in your courtroom for the hearing to begin? What do you do?
231st District Judge Randy Catterton, Fort Worth: Normally 15 minutes. We had — I tried to be more lenient previously, but it’s really become a real problem with attorneys not showing up on time, and not only not showing up on time but not even calling to give us a head’s up. So, if we’ve heard nothing — if we have an attorney that’s sitting there with his client or her client and we’ve waited 15 minutes, first, I have — I call the attorney’s office to find out if there’s been any type of emergency that they just haven’t announced yet. If we get no decent response from that telephone call, then I’ll consider default.
Council: Judge Harris, same question. The courts are busy. Would you make somebody wait until the end of the day? I mean, if they’re on the clock, are you going to make a lawyer wait?
233rd District Judge William Harris: No. I give 30 minutes —
Council: 30 minutes.
Harris: — on that before I discharge the parties, but I think — sort of what Judge Catterton said. I think if you’ve got a hearing set, I’m not going to make you wait down there all day. I believe the local rules on a default require a 30-minute wait, but I’m not positive about that. It’s something that I’ve just always sort of done. One of the problems that I see is the people show up on time, but they run in and tell the bailiff, "I’m checking in and I have to go somewhere else," and the bailiff says, "You need to stay in the courtroom," and they run off anyway. And I handle that on sort of a case-by-case basis. I don’t have any hard, fast rule. If you run off and really, really delay [a] hearing, I sure might favor if you look at, you know, an award of attorney’s fees for the time, but other than that, it’s kind of a case-by-case basis.
Council: Judge Hennigan, I would imagine this happens all the time. Let’s say somebody just checks in and just disappears and goes to another court, goes to another courthouse. What do you do? How long do you give them until you grant a default?
324th District Judge Jerome Hennigan: One of the problems we have is: We have so many people that practice criminal law, as well, and in some — in criminal law settings, sometimes they’ll go to the criminal courts and then not be back. As far as I’m concerned, I do wait the 30 minutes. If a lawyer comes to me and says, "I’ve got to go" — the lawyer standing there says, "I’ve got to go, my client has to go" — then we’ll do something about it. Oftentimes, the other lawyer has things to do. But one of the real problems we have, what I would like for everyone to work on — I practiced law for a long time, so I know how it works — but it’s very difficult when you’re trying to do two or three cases at the same time, some in criminal court, some in the family law courts, so I would like for you to be a little bit more cognizant of the fact that you have got someone else waiting. You know, oftentimes, you don’t really have the court waiting because we have other things to do, but I think that’s something you need to work on. And I try to work with everyone on it. And, like I say, I did it for a long time, so I know it’s difficult, but I think everyone could try a little harder on it.
Council: Judge Sinha, how long are you going to make a party wait, and at what point are you going to grant a default?
360th District Judge Michael Sinha: Well, I wait a half an hour for any kind of default, but the other effective tool that I use sometimes is ask the client who might be there to call their lawyer’s office, because nobody responds better than a client’s phone call.
Council: You mean more than a judge?
Sinha: Well, sometimes we are just busy with other cases. So anyway, that’s another little way.
. . .
Sinha: The other thing is, if you check in and you’re talking, we don’t know that sometimes, too. Because people don’t check in. They go straight to the conference room, and they are working on their case, and we don’t know where they are. So, even if you’re talking among yourselves and you’re doing good things and getting stuff done, if you’ll check in with us and let us know that you’re even conferencing. The other thing that running late does is it also kind of puts you at the end of the line. If we started a case and it was going to take an hour and yours was going to take 15 minutes and we get, got a little bit hung up because we had to wait on you, we’ll sometimes just start that hour case, and I feel so bad when everybody else was there, someone ultimately shows up, and then they’ve got to wait another half an hour because we started our hour case. So, do your best to be there on time. If not, at least call us. That is big brownie points, if you’ll call us. The first person that I would have you call is our bailiff from each respective court, the associate court and the district court, because sometimes our coordinator gets so bogged down in the beginning of the morning, but the bailiff is the one with the docket board. And if you need that number afterwards, I’d be happy to share it with you.
Council: Great. All right. Judge Sinha, I’m going to stay with you. Let’s talk now about pretrial procedures to the extent that you have them. First question: Do you normally have pretrial hearings, and what issues do you cover in those hearings?
Sinha: Well, we have what’s called a pretrial scheduling order. And — prior to setting anything for trial that might be contested — it’s a wonderful tool because it not only gets you a court date, but it also sets up deadlines where you can establish deadlines for discovery and mediation and access facilitation and introduction of exhibits, and all sorts of things are covered in our pretrial scheduling order. If you ever get put on the dismissal docket, that’s a great tool, too, because if you then come to us, set it for trial, get a pretrial scheduling order all set up, it will keep it off the dismissal docket. And, to be honest with you, when you file a case, it wouldn’t hurt you to get that pretrial scheduling order set up right away, say, after a temporary order or after you file your initial pleadings, because right now we’re scheduling nine, 10 months out for anything that might last a day or longer. So, you would be doing yourself a favor to get with our court coordinator. She and I work together on the pretrial scheduling orders.
Council: Judge Hennigan, do you have a pretrial scheduling order, and what [do] you cover in those procedures?
Hennigan: We do. We have pretrial scheduling orders, and we cover everything: discovery deadlines, mediations, when you are supposed to get your exhibit list, your witness list — basically, the whole gamut of what you are going to need at trial. I agree with Judge Sinha. I said that earlier. Also, I don’t really do pretrial scheduling orders if you have a pro se on the other side, because I think it does very little good. Just set it for trial as soon as you can. We also have status conferences, which we hold 30 days, approximately, before the trial date just to find out where you are on everything and if you’re going to need a continuance or you are going to need some issues. . . .
Council: . . . Judge Harris, what do you cover pretrial? What do you want handled before a trial starts?
Harris: I don’t use a pretrial scheduling order. I don’t use any kind of a one-size-fits-all deal. If you want a pretrial scheduling order, you file a motion for it, I’ll sure give you one. I’m glad to do that, but I kind of let the lawyers do their own deal with pretrial scheduling. . . . [L]ike Judge Hennigan was talking about, we have status conferences where you have to come in, and if a case sits without any activity for, you know, a specific period of time, I want you to come in and tell me what you are doing, sort of get it all high center. The biggest thing about the status conferences is to make the lawyers come down and look each other in the eye, because there [are] a lot of times, if you just make them look at each other, they’ll settle the case right there. And, so, that’s one of the things we do. The other thing is: If you request a trial that involves a jury or involves more than three days nonjury, you have to have a conference with me 30 days prior to sort of, you know, iron things out. But that’s the only pretrial.
Council: Judge Catterton, what is your standard [operating] procedure on pretrial and pretrial motions, and what do you want handled pretrial?
Catterton: We do not set pretrials automatically. We do require that they be requested. Once they are requested, it’s just on a case-by-case basis. I want both of the lawyers there, at least — possibly have their clients there in the bigger cases. We discuss what the issues are, primarily what the timing is going to be, determine whether or not you’re going to have a jury, not have a jury, try to be — I preach to them about being realistic for the time that you are asking for. I will give you as much time as you want but no more than what you ask for, and I try to hold that, hold them to that. We have, all of us, have move than 2,000 cases that we’re juggling, and it’s important to give us realistic estimates of the time involved. I also have a backup docket that I keep preaching to people about. We’re setting everything especially for trial. I didn’t use to do that. I used to use the old system where you just sent in the setting letter, and I took the oldest case first for that week and work through it. The attorneys wanted cases set on a specific date and time basis, and I’m doing that. But I’m also doing a backup docket, where you send them a letter and you request your case be placed on the backup docket. And we’re getting to at least half of those cases every week. There is not enough people taking advantage of it, so it’s not hard to get to, you know, half of 10 cases or half of eight cases. But we are getting to those cases, especially the cases that are going to take a day or less. We are getting to most of those. So, I’m encouraging people at all of the pretrials to talk to LeAnn, get a setting letter form, because it’s real simple. Just pick a week at least 45 days out, and we can probably get your case heard on that backup docket.
Council: Judge Catterton, during trials, how do you like lawyers to package documents for you? For example, do you want them to give you a notebook of live pleadings for exhibits before trial starts?
Catterton: I want them primarily to pre-mark all of their exhibits. We waste a heck of a lot of time in trial with lawyers stopping and doing the Perry Mason thing of going up and handing it to the court reporter and say[ing], "Mark this as an exhibit." Have them all marked before you get there. I don’t require a pleading — to see the pleadings beforehand. I’ve got that before we start, and I do review all the cases before we go to trial. I’m sorry. I also require a witness list. I have the witness list there. The first thing I’m going to ask you is: Are you really going to use all the people on this list? Most of the people that have witness lists, they’re everybody from, you know, the security people at the front door through the — through me. So, just be realistic about who you are going to be calling. Be honest about the time that you’re going to need.
Council: Judge Harris, how would you like lawyers to package documents, and what’s important for them to have done before the trial starts?
Harris: Well, like Judge Catterton, I require witness lists, exhibit lists and those documents. I agree completely with the pre-marking and pre-argument. In fact, I have stopped trials before when the lawyers are — you know, there are — every single exhibit, they claim, "I haven’t seen this; I don’t know what this is." I have stopped trials before, taken recesses, go back in the jury room and look at each others’ exhibits for an hour. Then you come back, and we will argue admissibility, and then we’ll continue with the trial. Because, like Judge Catterton said, that is a time thief. And, by the way, just as a tip, the court reporters will hate you if you hand them an exhibit and you ask, if you say, "Madam court reporter, please mark this as Petitioner’s 78." And while she is putting the exhibit tag and marking it you continue to talk because the court — my court reporter would tell you that she is skilled but she cannot mark exhibits and take shorthand at the same time. And I don’t think any of the reporters — just don’t do that. Have them pre-marked. It’s not that hard to do. My court reporter will even give you free exhibit stickers if you don’t have your own. But I like them packaged up. I like the exhibits in a ring binder, but I also — if you bring them to me in a ring binder, if you would be so kind following the trial, if you would take your ring binder back home with you, because we have a whole room full of ring binders.
Council: Judge Hennigan, tips on packaging trial documents in your courtroom?
Hennigan: Well, it’s pretty much the same. I want all the exhibits marked, pre-marked. I want all the witness lists. I want the exhibit list. I would very much like — I agree with Judge Harris — I very much like for the lawyers to go over their exhibits, determine what they can agree on, what they can stipulate to, so we don’t have to go through all of that. And one of — I’m like Judge Harris — one of my pet peeves is when lawyers will get up and say, "I haven’t seen this before. It wasn’t in discovery." "It was in discovery." And, so, then you have to argue about it. So, again, like him, I’ll send people out and ask them to please get together and see what they can agree on and what they can’t agree on. I also want proposed property settlement division documents, parenting plans; have it all up there and have it ready, and let’s just try — if you can just try — to get through the trial as quickly as possible. And I think lawyers can save a lot of time for themselves and for the court if they just work together in the beginning and try to see what they’re going to be able to agree on. That’s my main thing I’d like for lawyers to do.
Council: Judge Sinha, how can lawyers package documents in such a way pretrial or before trial to make your life easier?
Sinha: Well, in addition to what everybody else is saying, one little hint I would like: If you do a proposed parenting plan, proposed property, have enough copies. I like a second copy, so I can do my chicken scratches on it. Because if you’re going to make one of them be an exhibit, I don’t feel like I can touch it, you know, but if you have a second one that I can use and I’m using yours, that’s a good thing. So, make sure you have enough copies where I can make some notes. And especially on property where I’m doing arrows and writing my own things about values. If I have enough copies and I can use one as a guide and I’m using yours, you’re ahead of the game. You’d be surprised how many people don’t have enough copies of exhibits. I’m amazed if I have to ask, sometimes, my bailiff or we have to take a break just to make copies of exhibits. Be sure — you can never have enough copies. When it comes to photographs, try not to use the originals. See if you can get them on a computer paper so that we can keep them. A lot of times with photographs, we ask or we try to remember to ask if you want those photos back because they’re, you know, pretty darn important. Now, some of them are scrapbooks and things like that, and we get that. But be sure and let us know if you want those things back, so we can return them to you at the end of trial. Other than that, I think everybody else has pretty much covered it.
Council: Judge Sinha, are there matters in your court that absolutely must be heard by you instead of your associate judge?
Sinha: Let me think about that for a second. [Is] there anything? We try to be — we have a different system, maybe, in the 360th. When we start in one court — for instance, if you are scheduled for me to hear your case as a final trial, I want everything in front of me, as far as like motions for continuances, pretrial matters, things like that. If you have agreed — because you can get in front of [Associate] Judge [Cynthia Johns-] Mendoza, say, in three months rather than in 12 months in front of me — I don’t want to hear that motion for continuance, I don’t want to hear any pretrial matters if she is the one listening to it as a final. So, that’s one thing to think about. Just remember which pattern you’re on and line you’re on. Other than anything I have to listen to, we really don’t have any hard-and-fast rules about that. Determination cases, I’ve even delegated — sometimes I have to add my signature to what my associate judge has done or heard. But we’ve done our best to try to delegate as much as possible. It gets more done.
Council: Judge Hennigan, like you and . . . Judge Sinha, you’ve been an associate judge. Is there anything that as a district judge you want to hear and always has to be heard by you but not necessarily by an associate judge?
Hennigan: Oh, not necessarily. I mainly want people not and try to jump by the associate judge or try to — what people will do, they’ll come in and make some sort of an agreement so they don’t have to have a hearing before the associate judge and then want to file a de novo and appear before me, and I don’t like that very much. And I also don’t want — I mean, I hear the status conferences; [Associate] Judge [Beth] Poulos hears the pretrial scheduling conferences. But, you know, I agree with Judge Sinha. I think anything that’s going to be heard in my court, I want to hear continuance motions and that sort of thing, but other than that I can’t really think of too much. I just want you to follow the system. I don’t want you to come over and say, you know, ‘You’ve heard this case before. You’ve heard this case three or four times, so would you hear this new motion here instead of Judge Poulos?’ You know, occasionally that might be the appropriate thing to do but not very often. And I realize sometimes you think that’s more convenient and less costly to your client, but there is a system I think we need to follow. So I’d appreciate that.
Council: Judge Harris, what do you absolutely always want to hear and not your associate judge?
Harris: I don’t really have any hard, fast rules. I think the Family Code authorizes associate judges to hear almost anything the district judge can hear. If there is an objection to hearing a final trial, obviously, we honor that. One of the tips — I think Judge Hennigan was kind of hitting on this — but here is something to not say to the district judge. This is a tip. Don’t go in and say, "Judge, no matter which side wins, one of us is going to appeal, so would you go ahead?" Because that doesn’t work. We’ve heard it before. That’s a "Check’s in the mail" or, you know — it just doesn’t work. We had the associate judges — and we’re really blessed to have associate judges. The counties that don’t have them, I don’t know how they dispose of their stuff, but I take full advantage of the associate-judge system, and I agree with Judge Hennigan — Hennigan or Sinha. If you make an agreement at the associate judge’s level, don’t come to me with a de novo request because the de novo statute says that you can have a hearing on the findings of conclusions. If you have an agreement, I don’t think you get a de novo hearing. You won’t in front of me, unless you get the Court of Appeals to tell me that I have to.
Council: Judge Catterton, what do you want to hear that associate judges probably shouldn’t hear or maybe you don’t want them to hear?
Catterton: It has nothing to do with the associate judge not having the ability to hear it, but I hear all termination cases, final termination cases. Actually, I hear all final trials unless the — both parties agree to try it to the associate judge. There is a caveat there, though, because, if you do have the associate, if you agree to have the final heard by the associate judge, you waive your right to de novo hearing before me. You also have to provide your own court reporter, and your appeal would be directly to the court of appeals. The associate judge does not hear any jury trials. I don’t even know if they are authorized to. I’ve heard of them doing them in other counties, but they do not do — ours — [Associate] Judge [Lisa] Beebe will not hear any jury trials. I am strictly the only person to preside at jury trials. And I think I said terminations. I hear all the termination cases.
Council: All right. Judge Catterton, when do you think it’s appropriate to award attorneys’ fees in a case?
Catterton: Oh, god.
Council: And do you — I mean —
Catterton: Always. (Laughter.)
Council: Have you ever awarded attorneys’ fees as punishment?
Catterton: Oh, probably. I don’t know if it’s punishment or not, but I definitely award them if they have caused the other side to incur a great deal of expense and unnecessary fees. It’s really, truly a case-by-case basis. If it’s clear that someone has come into a case — like, we tried a jury trial recently, and it was just — it was so clear that the case shouldn’t be tried at all. Certainly, the way it was tried to the jury, it was very, very expensive for — maybe expensive for both sides, but definitely expensive for the side that prevailed —and attorneys’ fees were, pretty substantial amount of attorneys’ fees were awarded in that case. So, it really is a case-by-case basis. I try not to do it because someone has made me, upset me, if that’s what you’re asking. But I do award them when I believe that the conduct of one side of the case has caused the expenses to be escalated beyond what I consider to be normal expenses that each side would incur when they are working their way through these things.
Council: Judge Harris, what’s your threshold for awarding attorneys’ fees in a case? How far do you have to go before you consider it?
Harris: Well, again, I couldn’t agree more with Judge Catterton. I think it’s a case-by-case basis probably as much as any other issue. One of the things that I’ve done in the past, and Judge Catterton kind of alluded to this, like, for instance, on a modification of child support. A lot of times when the lawyer testifies as to the fees incurred, I will ask that lawyer if they have an opinion as to what, you know, would be a reasonable fee for this case — you know, filing the case, responding or, you know, reviewing the answer and having some, you know, short negotiation. And I will award anything over that. If it’s a case where it’s obvious that the person was entitled to an increase of child support, well, you know, get a baseline of what an agreed matter should have been, and then I’ll sometimes award the fees over and above that.
Council: OK. Judge Hennigan, what do you take into consideration when somebody — when a party requests attorneys’ fees?
Hennigan: Well, again, I agree with the other folks. It’s a case-by-case basis, but I take in consideration the merit of the case, whether or not the case should have been tried, who’s — there [are] some cases that just shouldn’t be tried and some cases that go on far too long. You know, you have motions to compel, and you have that sort of thing where I think attorneys’ fees are appropriate. So again, it’s a case-by-case basis. One of the things that I don’t want you to do that I see is, for instance, if you have someone that you’re filing an enforcement on for, say, $2,500 in child support, don’t come in and ask for $25,000 in attorneys’ fees. That’s not a reasonable fee for the amount of money that you’re seeking to recover. And, so — but I don’t know. That’s just a pretty broad and general question. It’s tough for me to give you any sort of bright-line-type guidelines as to how I would do attorneys’ fees.
Council: Judge Sinha, I’m guessing maybe in one case you have awarded at least some attorneys’ fees. What do you consider, and what’s the likelihood that you can get that in your court?
Sinha: Well, I have a different slant on attorney fees. First of all, I think one reason cases take way too long to settle or mediate, or whatever, is because people aren’t asking for interim attorney fees. And I hear someone that’s wanting $20,000 or 10,000 in final because they’re that far upside down. You shouldn’t have been in that position. So, as the case progresses, if you think this case is going to require interim attorney fees, you might get people thinking about wanting to preserve their community estate a little bit more, and perhaps they’re going to get to the settlement table a little bit faster. So, think about that. The other thing is when you’re defaulting somebody, I rarely hear anybody ask for attorney fees under default. Even if it’s a prove-up divorce. If your client is out a thousand dollars or $2,000 because you did work for them and the other side didn’t bother to answer and didn’t file any pleadings or didn’t do anything, I rarely hear attorney fees in that regard. Be sure and ask for them. It might be just a judgment, but you never know. And add it to your order. So, just keep that in mind as well.
Council: All right. Let’s talk about mediation, Judge Sinha. First off, do you always send a case to mediation as a matter of course?
Sinha: It’s in our pretrial scheduling order. We would love to see people do mediation, because we think the non-adversarial process is the best way to go. Frankly, I think if parties mediate, they have a better chance of not coming to court, as well, because they were the ones that empowered themselves to make those decisions rather than the court. So we’re big into that. We like lawyers to handle the mediations, if possible. We’ve had NewDay [Services for Children and Families] help once in a while, too, because it’s an economic issue for some folks. But, yeah, we’re big into mediation. We don’t absolutely require it, but, yeah, I mean, if you wanted mediation, we would be sure and give you even a continuance if it meant the parties could try to mediate and settle some of their differences. In terms of mediation, too, the other judges touched on it. Sometimes if the lawyers will just come in and talk to the court a little bit prior to trial and get our philosophy without getting too fact-specific, maybe some guidance from us might help the attorneys settle the case as well, rather than spending $500 a side or $1,000 a side to try to crank something out.
Council: Judge Hennigan, do you regularly order parties to mediation as part of your scheduling order, or is it case by case? How do you handle mediation?
Hennigan: We regularly order mediation. We encourage mediation, but it’s not — it’s not mandatory. If lawyers come and say, ‘It’s not going to do any good to mediate, our clients are — it’s a custody case and our clients are stuck on it, they’re not going to give up on it,’ usually, you know, if that’s the case, I don’t want to spend, have people spend, money on mediation if it’s just absolutely not going to do any good, but we absolutely encourage it. It is in our scheduling order.
Council: Judge Harris, don’t have scheduling orders or how do you handle mediation? Do you order it every time?
Harris: No. Same way I handle everything else. If I feel like there’s a need to order mediation, I might. I very rarely order mediation. I think it’s one of the best things you can do, and I encourage it. But, you know, mediation is one of those things where I think ordering it is just — it’s just not my style. I don’t appoint mediators. I agree with the other judges. I think the — when you select a mediator, I think it’s very important you select a lawyer. I think it’s very important you select a lawyer with some expertise in the area that’s being mediated. I agree with Judge Hennigan about the — some of the cases just don’t lend themselves to mediation, and if it’s an entrenched custody case, I don’t really — I don’t really try to even promote mediation. I think a lot of times it’s better just to save your resources, try the lawsuit, get a verdict or a ruling from the court. But I encourage it. I encourage it on every case, and I have seen cases that were custody entrenched, absolute[ly] we can’t ever resolve this, and then they go to, you know, a skilled mediator and all of a sudden you have an agreed order. So I think that they’re all mediatable.
Council: Judge Catterton, is that — if I come to your court, am I going to be ordered to mediation? I mean, is that a regular thing that you do?
Catterton: No, I don’t. I rarely order mediations. If — as Judge Harris said, I encourage them, but I rarely order it. I think that the attorneys usually are in a better position than I am to determine whether their client’s resources need to be spent in mediation. If one of the attorneys requests it and they come before me, I normally order it. That side of the case may front the money for the mediation, and I can sort it out if they don’t revolve that issue. But bottom line is I rarely order it, but I strongly encourage it.
Council: All right. Staying on the topic of mediation, and this is something that I think is at the Texas Supreme Court, and it’s causing a lot of people some consternation. Are there any circumstances in which you’d refuse to approve a mediated settlement?
. . .
Catterton: This is what I think we should do. It’s obviously before the Supreme Court. What is it, Smith vs. Lee?
Council: Yeah, US, Stephanie Lee, I think, whatever it is.
Catterton: Whatever it is. And the question is: Do you look at best interests when they bring you a mediated settlement agreement, or do you just have to sign the judgment? And this is what I will do or am doing: If they have a mediated settlement agreement, and they come to me and they want me to set that mediated settlement agreement aside, they’re going to have to support it with an affidavit that would support a modification within the year. In other words, they’re going to have to show facts in that affidavit that there is something that was significantly impairing the physical or emotional well-being of the child in that affidavit, and then I will set it for hearing and hear evidence about whether I should set it aside. Anyway, that’s what I do.
Council: Judge Harris, have you ever set aside a mediated settlement?
Harris: I don’t recall ever setting one aside. I’ve had this come up, this, you know, "not in the best interest" before. And, of course, the first thing I ask is the person purporting — you know, if it’s not in the best interest, well, why would you agree to something that is contrary to your child’s best interest?
Harris: A lot of times it’s buyer’s remorse on these mediated settlement agreements. I’m sure that I probably have set them aside. I agree with Judge Catterton. If you — if you’re setting one aside under this lead criteria about best interest, I think you have to have some evidence. I think, you know, that’s probably a good standard, is some kind of affidavit testimony that would support a modification within a year. Property division, things like that, I think you really got a big hill to climb on those because, you know, if it’s — particularly here because you’re in Fort Worth, Texas here — and in Fort Worth, Texas, a deal is a deal, and our juries are just really funny about that. Yeah.
Council: Judge Hennigan, if I’ve got some buyer’s remorse with a mediated settlement, what do I have to show you to get you to set it aside, or can I even do that? Do you consider that?
Hennigan: I can’t imagine I’d ever set one aside just because of buyer’s remorse. In fact, I think for me — I don’t think I’ve ever set one aside, but I think for me to set one aside, it’d almost have to be some sort of intervening incident that may have happened between the mediation and the time you bring it to me. I mean, obviously, for instance, if the child was sexually assaulted or something by one of the parties, I mean, obviously that would —
Council: It would have to be really bad.
Hennigan: But it’d have to be really bad. The buyer’s remorse would not do it for me.
Council: OK. Judge Sinha, what about you?
Sinha: Well, I concur on the buyer’s remorse. What I see on the MSA request to be set aside is not a meeting of the minds, and those are the hard ones when they leave the mediator and one person thought one thing and one person thought another thing. A classic example of that was just the other day I had one where they thought that the injunction relief of the temporary orders were going to be the injunction relief in the final order, whereas the other side thought it was the pro doc version, and so there were differences. So they left without a meeting of the minds. And sometimes I’ve asked people to go back to the mediator to just get some clarification. Perhaps they can help sort things out. But other than that, I have not seen anything that I’ve wanted to set aside. It’s just those meeting-of-the-minds ones that kind of get me stuck.