By Dan Couvrette, CEO, Family Lawyer Magazine
Dan: Today I have the pleasure of speaking with Steve Kolodny, one of the foremost family law attorneys in Los Angeles, California and probably one of the pre-eminent trial attorneys for family law cases in the world.
It’s a real pleasure to have him today to talk about his trial work, to talk about his family law practice, and to talk about his personal life in terms of trying to achieve a work-life balance, which is challenging for anybody who has as active a practice as Steve does and has had for many years. So I’m going to start off by asking Steve some questions about preparing for court.
Welcome to our podcast today Steve. It’s a pleasure to have you here.
Steve: Thank you Dan. It’s a pleasure to be here with you.
Dan: You state that preparing properly for a trial is the best method for reaching a settlement negotiation in a satisfactory result. Why is this so?
Steve: I believe that in order to properly settle a case you have to understand all of the details of the case first. Before you enter into settlement negotiations you need to know the parameters of your upside and downside are, so full preparation before settlement is, in my opinion, the only proper way to do settlements. We will almost never settle a case at the very beginning just to cut costs because without understanding the scope of the issues and the financial parameters, I do not believe that you can properly serve the client.
Dan: Now I know that you handle a lot of complex cases, both in terms of child custody and of the financial aspects of the divorce. When you say preparation, can you give me an idea how many hours of preparation you’re talking about?
Steve: It’s difficult to talk about preparation in the number of hours because each case is different. But I believe in a property case or a financial case, whether it’s property or support, you need to do an in-depth analysis of the property, particularly in California and other community property states where date of acquisition is very important to determine the difference between community and separate property, tracing assets and their date of acquisition and the manner of title is critically important in California; we have some special provisions about reimbursement so knowing what was separate property, how that separate property flowed, if at all, into the acquisition of what would be community property and determining the scope and the nature of the reimbursement is very important. It often amounts to millions and millions of dollars, or if not millions of dollars, a very high percentage of the overall estate, particularly when you deal with separate property being invested in houses.
So the amount of time is dependent on the size of the estate, the complexity of the assets and such. In dealing with support issues, it’s critically important to look at all the components of support, all the components of income, determine whether or not someone is receiving adequate compensation for the services that they are performing because the compensation is community, while leaving compensation in the business to allow to grow may give the community an interest in a separate property asset. You need to know all of these things before you get started.
If you’re dealing with a custody case you need to look into the background and the history of people. You need, in today’s world, to be looking on Facebook and all the other social media to see if there are things that will embarrass your client that you need to know about. You need to know if there’s something there that will embarrass the other side or be important in terms of psychological presentation to the trial court based upon stupid things that people put on their Facebook and other similar accounts.
Dan: Steve, you emphasized the importance of the initial client interview and I know you deal with a lot of high net worth individuals, I’m wondering whether those people treat their divorce more as a business process or business transaction or if they’re as emotionally involved in their divorce as people who have less income and less in the way of assets. How do you find the high net worth individuals?
Steve: For some reason, and I think it’s because divorce deals with the most basic of human emotions, even the most sophisticated business people get emotionally involved in their divorces and become emotional about aspects of their divorce that may be relatively insignificant in the overall scope of things. It’s very rare that even a very sophisticated businessman will look at this purely as a business transaction. Certainly not at the beginning of the case but as things progress, often their viewpoint changes.
Dan: You’ve emphasized the importance of the initial client interview, what are the key objectives that must be achieved during this phase of the process?
Steve: I believe that the most important thing in the initial client interview is to establish the parameters of the relationship and to determine whether you, as the lawyer, are going to be comfortable working with this person as a client. This is one of the most intense interpersonal relationships that exist. If you’re not able to be comfortable with the person you’re working with, if you’re not able to feel like you are going to be getting accurate and complete information from them, or you’re not going to have access to them because they are too busy doing something else, you need to rethink whether or not this is a case that you want. For most people other than professional athletes and super busy executives, but more so with professional athletes, you need to establish a rapport with them in the very beginning of the case and understand that you are going to be working substantially with others — handlers, managers, business agents — but you have to have an understanding with the client that they must be available to you when you need to speak with them. You should not ever take a case if you anticipate never having contact, direct personal contact with your client.
Dan: You’ve written that every case needs a theory. If you can just explain what you mean by a case having a theory and has this always been your point of view or did you learn about every case needing a theory through your experience?
Steve: I think the phrase “theory” is something I learned much later in my practice. It was always something that I understood and that I always did but I never put the right words to it until I started teaching and listening to others teach trial theory. I believe that theory is critically important to the case because we are doing in effect, a performance to an audience of one. You must be able to put your material together, your evidence together in a way that will be persuasive to the judicial officer that’s hearing the case. That’s what a trial is all about. So your theory needs to start out in a way that will appeal to the factual correctness of your position and the psychological impact that its presentation has upon on the judicial officer. The theory of the case will change as you develop more and more facts. You’ll have one theory that seems to be the way you want to put together your evidence and its presentation at the time of the initial interview. You will probably find, as you do more and more information gathering and test things that your client says to you against the documents that exist, you may need to change that theory in some form or fashion to adapt to the facts. And then as you get closer to trial you may come up with some other completely different ideas that will cause you to switch your theory of presentation. Theory really means the presentation of the ultimate script to the trial court.
Dan: Now of course if your case is going to trial, a judge can make or break your case. What are some of the things that you do to establish and have done to establish and maintain your credibility with judges?
Steve: Be truthful. Don’t deceive by omission. Don’t deceive by suggesting things that are completely illogical. Your credibility with the trial court counts for probably 10% of what happens in trial and probably 25% of what happens in motion practice. If the judge believes that you are credible, if the judge believes that you will not feed them a line that will not stand the test of an appellate court, they will look at what you suggest and argue with more favor because they know they can rely on you. There is much discretion that the judge has in on family law cases, far more than in any other field of law. So credibility with a trial court, a trial court believing they can rely on what you tell them, is important in all aspects of what we do.
Dan: So based on your court experience and the success you’ve had in the courtroom, what is the right way to present evidence? And if there’s a wrong way, what is the wrong way to present evidence?
Steve: Now there’s only one right way to present evidence and that is to do it just exactly as is provided for in the rules of evidence in your jurisdiction. There’s a basic way of establishing foundation that pretty much applies everywhere in the United States. There are basic rules for foundation, basic rules for authentication. You must just follow those procedures. Taking shortcuts works if you have an unskilled opponent. But taking shortcuts also tells the judge that you are not a skilled litigator. If you’re a skilled litigator, you show that by following the rules of evidence, knowing your evidence, being able to make objections, being able to present evidence in a concise, clean, simple manner. That also raises your credibility on all levels with the court. When you’re preparing evidence presentations, you need to think about laying the proper foundation for your expert witnesses. Don’t bring in someone who’s really not a true, experienced expert. Lay their foundation and the basis of their expertise at the very front. Don’t ask compound questions because they result in answers that are not clear and specific and don’t give the judge a comfort level about what the information is.
When you’re using documentary evidence, always make multiple copies — one for the court, one for the clerk to use to enter into formal record, one for yourself, one for opposing counsel, one for the witness. If it’s a complicated document or something that involves complicated or difficult names, have a copy of the exhibit for the court reporter to make her job easier. Making the job of the court staff easier will get you a lot of points with people who have the ability to make your life simple or difficult.
Dan: Steve, I know you handle many cases with high net worth individuals, so you deal with a good number of financial professionals, business valuators, CPAs…what qualities and abilities are most important to you when you’re looking for a financial professional to work with?
Steve: Well Dan I think the critical thing in dealing with experts is to find experts that are honest. Experts who will tell the truth, experts who are experienced enough to know how to handle cross-examination. A Made As Instructed (MAI) expert, who will give expert testimony as instructed by the client or lawyer, is not going to stand up to any good cross-examination. I have chosen, in my career, not to associate myself with experts of that caliber simply because I think the courts start to think if you use experts like that, you may not be any better than the experts you hire. So I tend to look for people who will tell the truth, who are prepared to admit a mistake if one has been made in their preparation work and it’s brought to their attention. I tend to use pretty much the same people because I’ve learned to rely on them. You want somebody who can prepare information in a concise and understandable fashion. It’s not very helpful to have an expert who is so esoteric that nobody can understand what he’s saying. Their testimony should be in simple English. A 12-year-old should be able to understand what your expert is saying so that you’re sure the judge can easily understand it. [I’m not saying judges are 12-year olds, I’m just saying the information should be understandable.]
Those are the things that we generally look for. Experience in testifying is helpful because experience allows your expert to be able to better handle cross-examination and not get befuddled by hypothetical questions that deal with the “is it possible?” scenarios; as we know, as lawyers, anything is possible, and if the expert is not prepared to deal with those kinds of questions, they may get flustered and start to backtrack on the solidity of their opinions.
Dan: Steve, you’ve been practicing family law for a while now and I’m sure you’ve seen a few changes in terms of the way the family law cases are dealt with and perhaps the way litigation is handled. Could you take a moment to reflect on what changes you’ve seen and if you had a crystal ball, what might you expect to see in the next ten or twenty years in terms of family law cases, trials and the general process of divorce?
Steve: When I started trying cases in January, 1966, we tried complex divorce cases in briefcases that were maybe two inches thick. That’s just the way evidence was in those days. We didn’t have reams and reams of reports and documents. We didn’t have all this myriad of paper because we didn’t have easy copy machines. The practice of law has progressed, supposedly to the good, so now when we try complex cases we may have twenty or thirty file transfer boxes of documents brought into the courtroom. It’s just totally ridiculous but necessary by the processes that we’ve gone through with modern technology. I think we are going to see much more electronic demonstrative evidence in the courtroom, much more use of electronics in the courtroom. We’re going to go from thirty or forty file transfer boxes to one thumb drive, a computer and a screen for exhibits so you’re going to need to be proficient in that. I believe that lawyers should not be the people operating the electronic exhibits. You should have some professional there who deals with that so you can focus on your work, presentation of evidence or cross-examination and the use of those electronic exhibits. While doing so, I think family law in the future is going to get much more mechanical in its application. We’ve seen universal guidelines that have been effectively implemented by the federal government that essentially mandate procedures that have to be followed. I think we’re going to see more of that. In years past there was an attempt to create an electronic model to determine business valuations in California that fortunately failed, but I think we’re going to see more and more things like that. I think we’re going to see more use of referees or referee-type persons, special judicial officers to make preliminary findings on various issues because as the trial courts get busier, as funding for trial court goes down, as judicial officers become more scarce, we’re going to have to find other ways to get work done for the remaining trial judges. So I see in the next ten years a fairly significant shift in how we do things. I think we may even go to more arbitration of a lot of issues particularly in California now that arbitrations judgments can be appealed. There may well be a tendency to move out of the formal court system into some type of arbitration proceeding to resolve at least some of the preliminary issues, which could include valuation.
Dan: We’re going to switch gears here for a moment and move from your professional life to your personal life, and of course there’s always an overlap with somebody like yourself who’s very committed to what he does and family lawyers, not unlike other professionals, often struggle with establishing a work-life balance. What have you done to overcome this challenge and was it challenging for you to try and establish that or are you still in the process of establishing a work-life balance?
Steve: Well Dan, I think one of the things I’ve been singularly unsuccessful with in my life is establishing a work/personal-life balance. I grew up in a generation of people where work came first, which I think has changed dramatically for the good. The younger lawyers I see, their devotion for their children and their time to their children rather than work is pretty significant. In my era we just worked. We came home and our children were in bed and were probably still asleep when we got up and left in the morning. That’s kind of changed a lot which is a big, big change from when I started. I think it’s much harder for lawyers today to have the kind of commitment that I had to work, which I think in some ways got me to where I am because of the devotion to the demands of the practice. If something needs to be done, where I come from, or the way I was raised in my professional life, you needed to get the work done and the other things had to wait. So to a large extent I don’t have a balance. My balance is work comes first. It’s hard and I try, I try to work on that but it’s very difficult.
Dan: Now Steve I know you and I have met your wife, and you seem to have actually a very loving relationship. So is there something about the relationship you have that has worked? Does your wife allow you to be Steve Kolodny and is that perhaps part of how the balance has been struck is that there’s a lot of acceptance of who you are in this relationship?
Steve: Well it’s an interesting question. I think because Laila was in business for most of her life, it made her understand a little bit better what it’s all about. I think probably the biggest thing that resolved issues in our life was when I said “stop making dinner” because making dinner always resulted in “it’s in the oven,” “it’s getting dry,” and so on. So we stopped doing that and that took a lot of pressure off. But it’s a delicate balance, it’s a hard balance. I try to get home around 7 o’clock every night. That doesn’t always work because if there is something that needs to get done for court I stay get it done. It’s a very difficult process and balance but over the last almost 20 years she has come to learn I am what I am; I think that makes a difference. I try to make some accommodations as much as I can and still feel true to myself. And we’ve managed to work all this out.
Dan: You’re one of the top family law attorneys in the country, so I’m wondering if there are any other qualities and characteristics that you believe have played a role in your success.
Steve: I’m not willing to say that I can’t do something because somebody shows me a case or two cases that seem to indicate I can’t do it. When I am told that, I want to go back behind everything and find a way to do it. I think if you start out with the attitude that no matter what the task is, you can do it like that little engine that was climbing the hill, chug chug chug and step-by-step you get there. I believe this attitude is a very important element in being a successful lawyer.
A judge once said about me, “Kolodny is like a Sherman tank. If he comes to a wall and it blocks him, he just backs up and starts again, and he just keeps going until the wall is down and he gets what he wants.” Well I don’t know if that’s necessarily true, but indicative of the way I think about these things; if something looks like it’s difficult, it just means you’ve got to work a little bit harder to achieve your goal.
Dan: Did you have a mentor when you started in the family law practice and if you did, who was the mentor? And what do you think you learned from them?
Steve: I don’t know if I could call him a mentor. I started practicing in 1965. I was hired after I passed the bar. I went to work for Eugene Burchin. He had a work ethic like the one that I have now, probably in part or in substantial part, I got it from him. He had a philosophy that once a month we worked all night, around the clock, twenty-four hours. Then we went home, showered, met for breakfast, and went back to the office. We did that so that everything in the office was cleaned up by the end of the month. Gene and I were often in the office until midnight, 1 o’clock and back in at 5 or 6 o’clock in the morning. So a lot of my bad habits, or what I’ll call my bad habits, came from working with Gene at the very beginning of my legal career. Unfortunately he’s now passed on but as I met with him in his declining years we used to talk and laugh about how work was in those days. I think that’s where a good part of what I am now came from.
Dan: Are you still passionate about practicing family law? Is that the thing that still gets you up every day?
Steve: Yes. The answer is an unequivocal yes. Virtually every day, I mean there are days when you just say, “Why am I doing this? Nobody cares but me,” with some clients, but, in reality, every day I find another exciting challenge and thing that I want to do in my practice. I find the practice of law, family law in particular, to be exciting and challenging. It’s something that has caused me and some of my good friends that I have developed over the years in this business, to carry on this Trial Advocacy Institute in Houston, something that we give a huge amount of our time to. We do it because we try to get others to have the same feeling that we have about practicing family law, share our commitment to this area of practice and our commitment to doing this the right way so that family law is not considered a stepchild of the court and the lawyers who do it are given respect. We want to pass on our skills and our passion to others who will carry that torch as we start to age out.
Dan: Can you just tell me a little bit more about the Trial Advocacy Institute in Houston?
Steve: We do this program now at South Texas College of Law, which happens to be the number one law school in terms of trial advocacy, or moot court programs, I’m told. It’s an 8-day intensive program where you’re on your feet presenting evidence, asking questions, making objections, ending in a trial in the Houston courthouse of a family law case with actors playing the part of the parties and accountants. Forensic accountants testify with regard to the accounting issues. We teach intensively with regard to evidence, making objections, how to ask questions on direct examination, how to ask questions on cross-examination, teach a basic understanding of forensic accounting and forensic psychology in child custody cases, teach how to lay foundation for those experts, and how to cross-examine them. We have been told by partners in large firms who sent their associates there that spending eight days with us in Houston is about the equivalent of six years of working in their offices. I suspect in some ways it’s more than that because you have eight days of nonstop on-your-feet work, which many of these lawyers don’t get in courtrooms. The other huge advantage of our program is that you get immediate feedback about what you’re doing right and what you’re doing wrong, immediately showing you how to correct what you were doing wrong.
For more information, go to www.FamilyLawTrialInstitute.com. The program always runs for 8 days ending on the 2nd Saturday before Memorial Day. So it’s starts on a 3rd Saturday before Memorial Day and runs Saturday to Saturday, ending on that 2nd Saturday before Memorial Day with the trial in the Houston courthouse and our closing lunch and award presentation.
Dan Couvrette is a marketing expert for family lawyers and divorce professionals. He is the CEO of Divorce Marketing Group, a marketing agency dedicated to promoting family lawyers and divorce professionals. He is also the co-host of a monthly marketing teleseminar for family lawyers and co-author of The Essential Marketing Guide for Family Lawyers. He is the founder and publisher of Family Lawyer Magazine, and Divorce Magazine. He can be reached at 866-803-6667 x 124, or firstname.lastname@example.org.