To prevail in any legal dispute, you must identify and focus on the facts and issues which will matter to the decisionmaker, your judge. This is called audience-centered preparation.
Many presentations are speaker-centered. Our ego and fears drive us to make our pitch based on what we want to say, what is important to us, in a format that makes sense to us. But we're not the decisionmaker. Our decisionmaker, the judge, is going to respond to a presentation that makes sense to the judge, a presentation that is prepared, relevant, and captivating. The judge will respond when we show that we really care about what we're talking about in a way that is designed to capture and keep the judge's attention.
The most important information in any legal situation is the information that the judge can actually rely on and use to make their decision. This is the only information that matters. In many family law cases, a great deal of time and money is spent fighting about issues that don't matter one bit, simply because one or both sides have become distracted by provocative, emotional topics. Success requires proactive, laser focus on the issues and information that actually matters.
Family law cases are emotional situations because they are all about the most intimate forms of human relationships. Due to the high levels of uncertainty and emotion, sometimes it's easy to be distracted away from what is most important for reaching a successful outcome. In divorce cases, generally each spouse knows a lot about the other, including how to provoke their former partner and inflame them.
There are many ways that an opposing spouse or parent can try to distract, including:
- Blame-shifting. Blame-shifting (called "projection" by psychologists) is where the other side does something, such as cancel insurance, refuse to pay a bill, or discuss adult issues with the minor children, then they accuse you of the conduct that they actually did. This is a common tactic by narcissists and bullies.
- Embarrassment. Family law cases involve intimate partners who know one another's darkest secrets. Often, one side may try to bring up the other side's history to embarrass them, even if the history is immaterial to the issues in the legal case. This happens frequently when one side has an old criminal history, went through rehabilitation for substance abuse, or received any type of therapy for mental health issues
- Exaggeration. The other side may make an accusation that has partial truth, but omit important context or overreach in the accusation to try to make your normal human behavior seem inappropriate or even malicious.
- Denial. In many parenting and custody disputes, one side will claim that they did not receive important child-related information from the other parent. They will ignore their own responsibility to be proactively involved with the child's school and medical care as well as texts and emails from the other parent. When confronted with texts and emails, they will double-down and claim that they never received the messages and continue to blame the other parent for not sending additional communication about the matter. There are several apps, such as Talking Parents and Our Family Wizard which focus on eliminating this kind of behavior. Many schools have apps and other types of online access that both custodial and non-custodial parents can use.
Attorneys can be distracted too. Many attorneys employ tactics to try to change their opponent's focus. Some ways attorneys do this include:
- "I didn't get that." Attorneys sometimes claim that they did not receive notice of an important event, such as mediation or a hearing, as a way to avoid having to participate in the event, delay the case, and to suggest to the judge that the other side is not communicating important information about the case. This is common, as the rules presently do not require attorneys to accept or acknowledge service by email. Some attorneys who engage in this behavior will not even pick up or sign for certified mail.
- Some attorneys also engage in blame-shifting, joining their client in accusing the other side of conduct that their client has actually done. Another type of attorney blame-shifting behavior is to not send out notice of filed documents and upcoming events, then blame the other side for not sending out notice.
- Avoiding topics. When attorneys are conferring and one brings up an issue that needs to be addressed, the other attorney may simply change the subject and refuse to acknowledge reality.
- Outrageous comments. In a divorce case where the husband was paying all the bills, including auto and health insurance, plus support alimony and child support, there was a dispute about whether a type of compensation from the husband's employer was income or property. At a hearing on that single issue, the wife's attorney yelled, "Judge, he's just trying to get out of paying his wife anything!"
Here are some tips for tuning out the noise and preparing a winning case:
- Make your case as simple as possible. U.S. Supreme Court Justice Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. Case simplification is critical, as you will be presenting your evidence to a judge who is a human being with a limited attention span. When the other attorney or anyone else says, "This is very complicated," they either do not understand this concept or they are deliberately trying to make the case seem complex to drown out the strength of your evidence.
- Identify your priorities for your case outcome. Even with a complicated divorce case, this can help you simplify the case. By identifying your priorities, you can choose which evidence to talk about first and which evidence may not matter. Identifying your priorities is part of establishing a plan for the outcome you desire, and it helps keep you from operating reactively to the other side's statements and behavior.
- Listen to what the other side is saying. Listening does not mean assigning truth to what they say, but it can give you remarkable insight into their theories and ideas. For example, if the other side or their attorney makes an outrageous claim that you know is not true, listen to it and consider that they may be blame-shifting -- they may have just told you what they have really been up to.
- Don't listen to what the other side is saying. With effort, you can distinguish between what they say that can give you insight into their theories versus what they are saying that is just baloney. For example, sometimes an attorney will say, "I know this judge and they will never give support alimony." If you have assessed your situation and you have a strong support alimony claim, ignore them. What are you going to do, dismiss your claim because the other attorney says something?
- Most importantly, make your case audience-centered. Audience-centered preparation means you focus on your audience and how they will respond to the information when it is presented. In family law cases, your audience is the judge. This concept can help you filter out the majority of the noise and information that may have meant something to someone at some time, but really will not move the needle one way or another in a courtroom.
Audience-centered focus is how we assist clients who are in a child custody dispute or are divorcing after recovery. Our clients often feel vulnerable when their former partners say they are going to use evidence of treatment to damage our clients' case. By centering our focus on the judge, we can flip the script on the other side: no one gets punished for seeking help, and by bringing up treatment and recovery, the other side comes across as an overreaching bully, and their credibility gets damaged in the process.
Trial requires trust: trust that the judge will make the right decision if given the right information. You want the decisionmaker to trust you and rely on your information. Gerry Spence says, "You cannot ask the jury to do for you what you will not do for them." In other words, to gain trust, you have to give it. You can demonstrate your trust by making your presentation 100% to and about your judge.
Remember who the decisionmaker is. It's not you or your attorney. It's not the opposing party or their attorney. It's the judge. When you are preparing for trial and then when you are actually in trial, everything you say and do should be done with the purpose of showing the judge that your claims are credible, your evidence is strong, and that you should prevail, no matter how loud the other side yells and no matter what they do to try to prevent an outcome. When you are testifying, keep in mind that although an attorney may have asked you a question, your answer is not for them. Your answer is for the judge. When the other side is yelling or behaving outrageously, remain calm and stick the facts. The contrast will be stark and in your favor.
Audience-centered preparation defines how we handle cases. When we are preparing for trial, we put together photos, timelines, maps, and other graphic information to assist judges with processing information in a way that makes sense to them. When we have large volumes of records, we try to develop a one-page summary of the data to make the judge's job as easy as possible. When we help witnesses prepare to testify, our preparation is audience-centric, focused on communicating our message to the judge at all times in the most credible way possible. Audience-centered preparation is a recipe for success.