Establish Winning Facts
Trials are about facts. For any fact that is important to a case, there is more value establishing that fact through the opposing party than proving that same exact fact through you, the client. Why? The nature of our court system requires each side to present their best case. Judges and juries are aware of this, so they have an inherent skepticism of any evidence that is presented by a person, and that person's attorney, as a good fact for his or her side. That skepticism goes away when the opposing party admits the same exact fact -- surely they wouldn't admit a fact that helps you, their opposing party, or that makes them look bad, unless that fact that they are admitting is absolutely true. Proving facts that way is done through cross-examination, which is an important skill for every trial lawyer. Cross-examination requires technical knowledge and skill. Sometimes we go into hearings, such as emergency custody hearings, temporary injunction hearings, and protective orders, with very little time or information to prepare. We are experienced and skilled at successfully handling tough, uncooperative witnesses in stressful, adverse circumstances with little opportunity for preparation. We know how to use the pretrial discovery process to set up proving strong facts at trial. In exceptional circumstances, our trial skills have allowed us to win custody and contract cases without our client testifying, because we were able to prove everything we needed to prove through cross-examination of the opposing party.
Use Visual and Tangible Evidence
The word “trial” may evoke an image of a witness on a witness stand testifying verbally in response to a verbal question from an attorney. Scientists and psychologists have determined that humans — judges and juries — remember things better that they see and touch rather than what they hear. As a result, we emphasize the use of visuals whenever possible. In family law cases, this means photographs of our client with the children, photographs of the home where the children will sleep, maps showing the location of significant events, and so on.
- current income information and recent tax returns (at least from the last two years)
- a list of property owned by each spouse before marriage, together with all information related to an increase in value of any of that property due to marital efforts, such as joint investments, home remodels and repairs
- a list of all property acquired during the marriage, including any business startups or partnerships, together with any available information concerning the value of the property, such as appraisals, Kelley Blue Book estimates, and the current sale price for the comparable property
- a list of all debts owed by each spouse before marriage and a list of all debts incurred during the marriage
- 6 months of statements for every bank account
- statements for utility bills and other regularly monthly expenses
- a statement for every retirement and deferred compensation account
- if health insurance is available, a document indicating the monthly premium cost
- a list of eyewitnesses with contact information for every material issue and fact
In addition, in custody cases we will need:
- a photograph of the client with each child
- recent report cards and any IEP for each child
- a statement showing the cost of child care
- photographs of the client’s home and each child’s bedroom
- a list of professionals involved with each child, including teachers and counselors
- a record of payment of child support
- documents related to any child’s health or behavioral issues
- a copy of the child’s health insurance card
- a timeline of significant events related to the child and the other parent
I. Disclosures and Discovery. We gather information that we, the other side, and the judge will need to make a decision. We do this through our own work and investigation, through subpoenas and depositions, and through written discovery requests to the other side. We make voluntary information disclosures to the other side without them even asking for it. Many attorneys try to play games and hide their information. That is their mistake to make, not ours. By managing the information, we set our cases up for long-term success. By hiding information, obstructive attorneys cost their clients unnecessary money and make cases take longer. We propose stipulations to streamline each case. Most attorneys do not accept our proposed stipulations because they operate out of fear and distrust, but we still make the proposals to try to make the case move forward.
II. Make a Written Settlement Offer. Cases resolve either by agreement or by trial. Almost every family law case is required to go through mediation. When possible, we make a written offer before mediation for the following reasons:
- The other side may accept it. Your case and associated expenses would come to an end, and each side can move forward with their lives.
- The other side may reject it. We then provide the mediator with the settlement offer and the information we used to make the settlement (such as a text message, a photograph, or part of a deposition transcript). This usually gives us an edge in mediation because the mediator has valuable information from us, knows we are invested in the negotiation process, and has an offer from us to work on the other side. Sharing our settlement offer with the mediator can lead to a successful mediation outcome, where the case is resolved by agreement.
- Even if mediation fails, making reasonable efforts to settle does a couple of things:
- There can be a psychological shift if you are willing to compromise and make an offer in writing. Even in a case where the other side feels that they have nothing to lose, making an offer to them gives them something to lose if they could now do worse in court than the offer would give them. For example, in a financial case, we may want the other side to risk leaving money on the table if they go to court. It changes the dynamics of the case.
- After the case, even if you lose everything at trial, making a settlement offer before trial is evidence of reasonable behavior and attempts to resolve the case. In family law, attorney fees are not supposed to be based on who "won." Attorney fees are supposed to be based on fairness and on who behaved reasonably -- to reward reasonable behavior and to discourage unreasonable behavior. We propose stipulations and make written settlement offers early to be able to show months or sometimes even years later that we worked to resolve the case and it was the other side who was unreasonable, not us.
III. Prepare for Trial at All Times. Our process is a trial preparation process. Starting with Part I, we are gathering, assessing and organizing evidence. We are trying to find ways to settle the case to mitigate the client's expenses, while continuing to assess the situation. We prepare questions and outlines for witnesses as the case moves through discovery and negotiation.
Most attorneys do not prepare their case for trial at the beginning or as the case moves on. This makes cases take longer: the case is not being worked proactively, so the case stalls at each stage: The attorneys play games in discovery. They don't make pre-mediation settlement offers, and often they don't even think about mediation until someone else brings it up. Then, if mediaton fails, they start thinking about trial, which often means they try to re-visit and re-open discovery and do things for the case that really should have been done already.
We set up our process simply by thinking ahead, using our knowledge of the rules and the legal process to set up our client for success in advance of each stage of a lawsuit.
Keep It Simple
Every case has its factual and legal complexities. If a settlement cannot be reached, a decision will be made by a judge or a jury. Obviously jurors may not have any legal background. Did you know that judges do not have any specialized training or skills to be a judge? Judges are not necessarily aware of the things that impact their own decision-making, including their own biases. Cutting-edge psychological studies show us that humans are worse decision-makers than we think we are, and that all human brains are inherently lazy. Our job is to present your case in a simple, understandable, and credible way so that your best possible outcome is the outcome that makes the most sense to mind of the decision-maker.
Our preparation and disclosure of information help us obtain results for our clients. Independent, objective evidence makes a case much stronger than a “he said / she said” battle of words. Our strategy pays off in negotiation, mediation, and in the courtroom. It is part of what makes us different from the rest.