Without an objective eye on the important/relevant facts of your case, you will not be able to effectively advocate for your client.
By Randall M. Kessler, Family Lawyer
Think of your case as a funnel. The client comes into your office for the initial consultation and from that moment until the final trial (or settlement) you will be accumulating, acquiring and deciphering multiple facts. When the ultimate resolution arrives, it will be based upon your succinct, thoughtful and impactful presentation of the most pertinent, relevant or poignant facts.
Attorneys are often unable to succinctly convey the relevant facts of a case because they become too emotionally invested in the client/outcome. I believe this is especially true for domestic attorneys. Keeping an objective eye on your case is probably one of the hardest (but most important) characteristics to have in this field. Without an objective eye on the important/relevant facts of your case, you will not be able to effectively advocate for your client.
Temporary Hearing Basics
The following is a short list of practice pointers to keep in mind when preparing for a temporary hearing:
The purpose of a temporary hearing is to establish initial financial support, e.g. temporary child support, alimony, and/or attorney’s fees. Thus, the merits of the case are not at issue.
During the hearing, each side may only present oral testimony of the party and one witness. Any additional witnesses may testify via deposition or affidavit.
Witness affidavits must be served upon the opposing party/counsel no less than twenty-four hours prior to the hearing.
If the temporary hearing involves alimony and/or child support, each side must present a Domestic Relations Financial Affidavit to the court.
The rules of evidence are relaxed during temporary hearings, e.g. the court may admit hearsay. Remember, however, that hearsay has no probative value.
In many states, keeping these basic rules in mind will allow you to be better prepared and help you narrow your focus to the relevant issues that the court will be concerned with at the temporary hearing.
What the Client Thinks is Important is Not Determinative
You cannot be “client-driven.” Clients often want to focus on issues that may not bother, concern, or affect the trial judge. Since many attorneys are solo practitioners, they often lack the time and resources to “bounce” ideas off of others. This is why an attorney must attempt to look at the case objectively as if he/she is the judge. Doing so will help you step back from the day-to-day grind of the case and look at the “big picture.”
Outlines, Bullet Points, Videos and Photographs
Judges love demonstrative aids because they are easy to understand and they break up the monotony of endless talking from attorneys.
But remember that when it comes to visual aids, “less is more.” When there is not much on a page you pay more attention to what is actually on it. The same is true when you are presenting your case to a judge—pick out your strongest points/facts and make them quickly.
The “Rule of Five”
While five does not have to be the magic number, it is good to try and narrow the points you want to make to a certain number (3, 4, 5, 6 or 7 if you have to). If you can explain your case in five sentences, you will have become a better lawyer.
If you are looking at your points as the judge, hopefully your next question is, “Okay, why should I award that amount?” You have taken away the question of “what should I do” and turned it into “why should I do it.” The key to an effective argument does not simply consist of presenting your five important points/facts in the hope that the judge will understand your end goal—you must also tell the Court what result you wish to achieve.
What judge is going to take you seriously if you ask for relief, but you look down at the ground, shrug your shoulders or seemingly acknowledge that you are asking for too much? Body language is important to whomever you are speaking. When you are in an initial consult, your body language will be perceived by your potential client. When you are at mediation, your body language will be perceived by the mediator, your client and the opposing side. But most importantly, when you are in court your body language will be perceived by the judge or jury.
We advocate with not just our voice, but with our attitude and everything we bring into the courtroom. If you do not believe your client is entitled to something, then neither will the judge. Of course, you must use your best efforts to give your client a “reality check” so your argument will be believable and credible to the Court. If you consistently seek much more than you know is reasonable, sooner or later the Court will discount your arguments and simply look to the other side as to what should be done.
Charts and Diagrams
Not all cases are simple and straightforward, but that does not mean you need to add more bullet points. Rather, develop charts, graphs and diagrams that you can present to the Court when each of the topics arises.
Don’t Become Angry
Many of our clients want us to be angry on their behalf, but it is common for Courts to want to help the non-aggressive/less angry side. If you can rise above the fray and keep a level head, the Court will usually look to you for direction. If you can give a calm, rational explanation of what should happen, the Court will likely use your words as a starting point as opposed to your opponent’s. An angry party does not benefit from an angry lawyer.
Again, Emphasize “Telling the Court What We Want”
From the moment you step into the Courtroom and begin to speak, the judge has one question in his/her mind, “What do you want?” As set forth earlier, you must give the Court a succinct answer to that question. Relevant facts are of little significance to the judge if he/she does not know why they are being presented.
Perhaps the most important reason to prepare a bullet point list, chart or an outline is to keep you organized and to make a good impression on your client. Clients pay us to think about their case, analyze it and present it in a reasonable, orderly, and persuasive fashion and you taking the extra steps will be appreciated. Having a chart will also indicate to the Court that you simply did not pick up the file, run it to Court and then “play it by ear.” You thought about the case, weeded out irrelevant facts, and tried to hand the judge the situation on a silver platter. The more you do this, the more likely the Court will be to simply turn to you and say, “Why don’t you tell me what you want and why you want it?” And finally, always bring a proposed order for the judge to review. This should be presented by paper and submitted electronically for the judge’s review.
Finally, think ahead. Exclude extraneous evidence. Focus, filter and finish the case efficiently and effectively. You can do this even when time is short.
Randall M. Kessler, is the founding partner of the Atlanta family law firm Kessler & Solomiany, LLC. Mr. Kessler was the Chair of the Family Law Section of the ABA (2011-2012), Chair of the Family Law Section of the State Bar of Georgia (2011-2012) and he teaches family law at the John Marshall Law School in Atlanta. He has over 20 years of experience in Domestic Relations and Family Law matters including divorce, custody and child support.