Chapter 8 : Trial

• Library: The Complete Guide to Divorce Practice: Forms and Procedures for the Lawyer(ABA) (2017 Ed.)

Chapter 8: Trial Commentary JUDGES DO NOT WANT TO HEAR DIVORCE CASES. IF THEY HAVE TO HEAR A DIVORCE CASE, THEY WANT TO HEAR AS LITTLE AS POSSIBLE.

This maxim should govern your trial of divorce cases. Keep the case as simple and unemotional as possible. Let the judge's emotions attach to the facts, rather than to your emotions. Make it easy for the judge to follow your line of argument by the use of charts, graphs, timelines, proposed rulings, or anything else that makes your argument easier for the judge to follow. If your argument is understandable to the judge and your opponent's argument is confusing, the judge will tend to go with you.

It takes a lot of work to prepare a case to be simple, but that work usually pays off.

Just because a trial technique works for one attorney does not mean that it will necessarily work for another attorney. An attorney with a deep, booming voice can sit and object and stop the trial. An attorney with a little squeaky voice may have to stand up and wave her arms to get objections to work.

One night I was watching television when Henry Fonda's one-man play of Clarence Darrow came on. The play was excellent. I had my little infant son¹¹ sitting on my lap as Henry Fonda was going through Darrow's life and his trials. One of Darrow's trials involved defending a group of anarchist coal miners against a murder charge in the Midwest. The coal miners had gone on strike and the bosses sent in strikebreakers. During the fight that followed, someone died and the strikers were charged with murder on a conspiracy theory. Clarence Darrow was called upon to defend these people.

In his final argument, Darrow said to the jury, "The easy thing to do is to hold these people's strange beliefs against them. The easy thing to do was to be prejudiced by their odd last names. The easy thing to do was to be put off by the clients' gruff manners. And the easy thing to do would be to send them to jail. The hard thing was to look past all those prejudices and problems and do justice in the case. You, the jury, are here not to do the easy thing but to do the right thing."

At that point my son began to cry; I got up to care for him, and I never saw the rest of the play.

I had a case set in criminal court on a probation violation. The client had been arrested for two DUIs, had failed to keep in contact with his probation officer, had failed to pay his fines, and had failed to pay his costs. The only thing he had going for him was that in the last six months he had found Jesus and had stayed out of trouble.

I got up in front of the judge and I told him that, "The easy thing to do would be to send this man to jail. The easy thing to do would be to look at his past record. The easy thing to do would be to hold his rearrest against him. The easy thing to do is to hold against him that he has failed to keep in contact with his probation officer. The hard thing to do is to look at the reform that has taken place in the man in the last six months. We are not here to do the easy thing but to do the right thing."

At that moment the courtroom was silent. Every eye in the courtroom was focused on the judge because nobody believed anyone's veins could pop out on their forehead as far as the judge's did.

The judge said, "The easy thing to do is to send your client to jail. The hard thing is trying to figure out how to send you, too, but I'm working on that."

I was depressed about that outcome for a long time. I was telling the story at a seminar when an attendee came up and told me that obviously I had not seen the rest of the play. It was true. My young son had started crying and I had to get up and take care of him. It appears that Clarence Darrow lost on that argument.

SCRIPT

One would certainly expect that having written this book and having practiced divorce law for as many years as I have, I would know what to ask in an uncontested divorce. But with every uncontested divorce I go to court to handle, I use the script. I have it filled out so that amidst all the chaos and confusion at the courthouse, I have before me what questions to ask. If I am approached by another attorney on another case or if my client gets lost or if any of the million things that can happen at the courthouse do happen, I still have the script to turn to when the judge calls my case.

OFFER OF JUDGMENT

I strongly recommend to you the use of the form Offer of Judgment. The offer of judgment is available in most jurisdictions. It is normally used by defense attorneys to make an offer of judgment to compel plaintiffs to settle their case on the basis of the offer of judgment or to be exposed for court costs, which can include deposition costs and possibly attorney fees. I strongly urge you to adapt this form for divorce practice, and I recommend that you use it with the offer letter. It can put you in the situation of intimidating wife's counsel with the possibility of assessment of attorney fees and costs—a situation you might not otherwise be able to bring about. The form Offer of Judgment is largely repeated in the form Proposed Ruling, which is submitted to the judge. If you do your homework and do an Offer of Judgment, then you will find it easy to draft the Proposed Ruling that you want to submit to the judge.

PRETRIAL AFFIDAVIT

Most jurisdictions that handle a significant amount of divorce work require a pretrial affidavit of one form or another. If your jurisdiction does not require one, do it anyway. The pretrial affidavit gives you a structure in which to deal with the marital issues such as assets, debts, income, and expenses. If the other side does not draw up or present such an affidavit, then the other side is going to be continually required to litigate the case within your structure. It is very difficult to win a case when you are litigating it within someone else's structure. It becomes, and usually stays, an uphill fight.

You will notice that the pretrial affidavit does not contain subdivisions for the various expenses. If you subdivide the affidavit, you encourage the judge to award support based not on the whole amount of the need but on those subdivisions that the judge believes are appropriate for that particular case. In other words, the judge may drop some of the subdivisions you want. If you put the expenses together as one total, it makes it difficult for the judge to make an analysis in terms of which subdivisions your client needs and which ones he or she does not need. You put the judge in the position of having to contemplate and deal with your whole list of needs and expenses rather than just a partial list.

MOTION FOR PRETRIAL CONFERENCE

I strongly recommend the use of the Motion for Pretrial Conference. Judges' discretion within the domestic relations area varies significantly from judge to judge. Unless you are sure you know what the individual judge's prejudices, preferences, and peculiarities are, then you want to have a pretrial conference before the day of trial. If your client is seeking every-weekend visitation with the child and this judge believes that every-other-weekend visitation is as much as anybody ought to have, you want to find that out at a pretrial conference without your client around. A pretrial conference allows you to explain the situation to your client privately in your office instead of finding out about the situation when you start trial. If you are going to be embarrassed, it is much better to find that out in the privacy of the Judge's chambers instead of in open court in front of your client and the other members of the Bar.

PRETRIAL MEMORANDUM

For the same reason that you draw up a pretrial affidavit and a proposed ruling, you also want to draw up a Pretrial Memorandum. This helps the judge see the case from the structure that you set up. Also, the memorandum helps you understand what is going on in your own case.

AFFIDAVIT FOR ATTORNEY FEES

Jurisdictions differ on the award of attorney fees. Most jurisdictions allow attorney fees. If yours does, I suggest that you testify about attorney fees. It is not unethical for you to testify about fees. However, you want to be able to document to the court the amount of time you spent and the expenses you have incurred.

You do not want to stop there. Even if you are the last witness to testify in the last proceeding in a divorce case, it is not the end of the case. There are going to be additional expenses involved. At the least you are going to have to draw up a final decree. You want to explain to the court the amount of work you anticipate will accrue after the date of the affidavit.

PROOF OF OFFICIAL RECORD CERTIFICATE

There is a wealth of useful information in the form of official records. Most states' rules of procedure or evidence allow for the entry of official records without the full task of having someone testify. The Proof of Official Record Certificate is a form that we find works in our practice. For example, one useful area is to bring into court the tax appraisals for the evaluations of various pieces of personal or real property.

CHARTS

For some time the business community has been aware that presentations of statistics can best be communicated to other people by the use of graphs and charts. It has only taken the legal community the better part of a decade to pick up on that.

Attorneys often try to get by with crude hand-drawn charts and graphs. If your chart looks as though it was drawn by a third grader, then it has about the same impact on your case that you would expect to have if the presentation was done by a third grader.

One of the reasons to use charts and graphs is to increase the professional quality of your presentation. A computer graphics program, such as Harvard Graphics, makes a professional-looking chart that can be very convincing.

MARITAL BALANCE SHEET

I believe that the Marital Balance Sheet is one of the most powerful tools for dealing with complex marital property issues. It allows for a listing of the...