Intrinsic fraud is, according to Black’s Law Dictionary, “that which pertains to issues involved in the original action or where acts constituting fraud were, or could have been, litigated therein.”

So is James Hresko’s claim of fraud by his ex-wife in concealing assets intrinsic fraud pertaining to issues that could have been litigated in his divorce?  Or is it extrinsic fraud which actually prevented an adversarial trial?  If the fraud is intrinsic, James cannot reopen his divorce.  If extrinsic, he can.

Well, it depends on where you live.  In California, Missouri or Montana, concealment of assets is extrinsic fraud that reopens the case.  In New York, Texas and North Carolina, it is intrinsic fraud and the case cannot be reopened.

The Court of Special Appeals decided that Maryland would follow the latter decisions and hold that misrepresentations of assets are intrinsic to the divorce.  It said that James was not prevented from trying his case.  Therefore, he could not reopen his divorce.

He had “every opportunity to examine these representations through discovery methods or in court.  Instead, he chose to file an uncontested answer and permitted the matter to go to judgment,” the court said.  “Public policy in this state demands an end to litigation.”

Hresko v. Hresko, 83 Md. App. 228; 574 A.2d 24 (1990)

Someone once told me you only have to practice divorce law for six months before you become a social worker.  I like to think I am pretty attuned to the emotional aspects of divorce, but every once in awhile, I get a situation that stumps me.

In those cases, I call on my experts, namely (a) my wife who intuitively knows far more about relationships than I ever will, and (b) a friend who works in sales and is a genius in these matters.  I keep the names confidential but describe the problem to them in general terms.

Today, I got in one of those situations.  I was negotiating by email with a lawyer on a case in litigation.  We were pretty close in dollars to a settlement.

I wrote, “Why don’t we settle this case.”  I was surprised by his answer.

“The problem is the way your client treats me and everyone else connected with me.”

How in the world do you respond to that?  I am trained to solve legal problems.  But this is not a legal problem.  So I ask my experts.

My wife took a practical straightforward approach.  She said I should say, “Look, we all want to get this over as quickly, expeditiously and amicably as possible.”

My friend in sales had another approach.  He suggested “If you will write me about the specifics, I will speak with my client about it.”   Always ask questions.  Sometimes, when the other side has to write it out, and think about it, they look at what they have written and decide it is not all that important anyway.

I decided that both approaches were excellent, so I combined them into one email.  I will be interested to see what response I get.

Words are the tools of a lawyer.  Words can be used to persuade and convince.  Words can be used to build relationships or harm relationships.

Discounting is the label I give to words that harm relationships.  It means you show by your words you do not respect the other person or their opinions and beliefs.  In fact you disrespect them and have contempt for them.

You can listen to, and acknowledge, an opposing point of view without agreeing to it.  Or you can discount it.  Here is an example of discounting in a letter I received from an opposing counsel in a divorce case recently.

“Jim:  This needs to stop. You are doing a disservice to your client. This is beyond ridiculous. If your client would stop this nonsense, sign the agreement I sent last night she would get a check the next day and this would be done.  Instead, you are making changes that make no sense, conflict with each other and costing my client (not to mention yours) unnecessary fees.  I will be tied up all day Monday and will be leaving the office early, out of the office on Tuesday and am leaving at 5:30 today and have deadlines I have to meet before then.”

Divorce lawyers have to develop a fairly thick skin in the heated exchanges of a litigation practice.  But do you really think that a letter like this ever persuades anyone to do what you want them to do?  Our response was to file suit.  Discounting never works.  As the Good Book says, A kind word turneth away wrath.