General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
The Trials (and Tribulations) of a Family Law Practice
BY MARK E. SULLIVAN
Mark E. Sullivan is a sole practitioner in Raleigh, North Carolina.
The trial of a family law case is a lot like flying an airplane - it's made up of long stretches of sheer boredom, punctuated by moments of terror. While there is no single best way to do it, some basic flight plans can help you avoid obstacles, look out for danger, and do a competent job in your journey from opening statement to closing argument.
When taking a family law case to trial, follow these four rules: maintain credibility at all times, don't surrender control of your case, be creative in your methods of persuasion, and don't ever try a case if you don't have to.
The judge shifted uncomfortably in her chair. She was in the middle of an equitable distribution case, and something she'd heard caused her to interrupt the lawyer examining the wife.
"What's that you said about your china?" asked the judge. "You say it's not marital property?
Why is that?"
The wife calmly responded, "Because it's borrowed - from my mother."
"Did she ever ask for it back?" queried the judge.
"No, not yet," replied the wife.
Upon hearing this, the judge rolled her eyes up toward the heavens. "This is the family china you and your husband used! And now you're claiming it's borrowed? You've been married 19 years. It's been two years since the separation and you still have it. And you are telling me...telling me here on the witness stand...that it's not marital property because it's borrowed?"
Clients Say the Darnedest Things
What we have at work here is a problem in persuasion - the judge cannot identify with the witness. She finds something the witness has said to be unbelievable, and it's causing her to lose her ability to identify with the witness, which will soon become a witness credibility problem for the wife's lawyer.
The three basic principles of persuasion are primacy, recency, and identity, and it's the last of these that caused such a problem in this equitable distribution trial. Primacy is the first thing you say, the first evidence adduced by a witness. Recency is the last item - the final piece of testimony, the closing argument. And identity, whether in a domestic trial or some other hearing, means that the trier of fact has to be able to connect with the witness, or with the position taken by an advocate. These principles operate in all civil trials, not just ones involving family law issues. They may be ignored only at your peril. They are often ignored in family law trials.
And that's what went wrong in this case. After the judge heard the incredible - in her opinion - testimony coming from this witness, she simply suspended belief and ignored the witness's testimony. She ruled that the china was all marital property. There was no new evidentiary theory in operation here; the best way to describe this approach to testimony in a family law trial is the old saying, "If it looks like a duck and quacks like a duck, then it must be a duck!" In this case, the judge's opinion was based mainly on good common sense. She decided that if the parties treated the property as their own, then the court would treat it that way also. She couldn't identify with the wife and her testimony, and this loss of credibility translated into a loss of dollars for the wife.
The Domestic Trial as a Civil Trial
Too few practitioners realize that a domestic trial should be handled like any other civil trial. Witness preparation, techniques of persuasion, adequate discovery before the trial, use of a trial notebook, preparation of visual aids - all of these belong as much in the domestic trial as in a slip-and-fall case, a contract suit, or an action for eviction. The rules of cross-examination don't get suspended just because a case involves family law, and there is no "family law exception" to the rule against hearsay testimony.
Unfortunately, too many domestic practitioners ignore this. They think that trying a family law case can be done "by the seat of the pants," and they seldom give adequate time or thought to trial preparation and cross-examination. The results, as in any other civil trial, are glaringly obvious.
A Great Cross-Examination
In another case, the lawyer was trying to get custody for the father. But he was questioning a well-qualified mother who knew a thing or two about being inside a courtroom herself. Dad's lawyer's cross-examination of Mom consisted entirely of questions that obviously came from Dad himself - to which the lawyer couldn't possibly have known the answer! Here's how it went:Q. "You say that Dad keeps the kids up until 'all hours,' right? Well, you also keep the kids up late when they're with you, isn't that a fact?"It should be very clear who's ahead in this cross-examination.
A. "Oh, no. When they're with me, which is most of the time, they go to bed at 9:00, right after their baths and their stories in bed."
Q. "But they do like being with Dad and going to activities with him, don't they?"
A. "I'll say they do, especially when he takes them to R-rated movies like he did last weekend."
Q. "Well, you let them see R-rated movies in your house also, don't you?"
A. "Oh no. We only have G-rated videos or TV movies in our house. I always preview the selections that are shown."
This is a problem frequently encountered in family law cases, entitled "Who's in charge here?" In tort and contract lawsuits, clients seldom feel that they know enough to be able to tell the lawyer what to say in cross-examination. But this is not the case in domestic litigation, where the other party is quite well known because she or he is usually the client's ex-spouse. Usually the client knows, or thinks he or she knows, exactly what to ask the other party on the stand. This kind of approach often backfires, with devastating effects.
There are two ways to resolve this problem in a family law case. First, don't let the client be in charge. He or she hasn't been to law school. Only you are equipped to decide what to ask. While you may - and should - accept guidance from the client on questions to ask and lines of inquiry to pursue, only you should make the final decision on what to ask and why. The second way to avoid this problem is never to stray from the famous cross-examination maxim of Irving Younger: "If you don't know the answer, don't ask the question!"
Creativity in the Courtroom
Selling the spouse's case to the judge or jury means grabbing and holding their attention. Piquing the interest of the trier of fact means using new techniques of presenting testimony. One such approach is to use the computer to help demonstrate your facts and arguments. Family law cases are uniquely well-adapted to computer use because they all involve money. Cases regarding alimony, child support, and property division are solely about dollars; even those that seem to involve other matters, such as divorce, custody, and paternity, most of the time are really oriented around dollars in the form of property division and child support.
Take an equitable distribution case. The advocate who wants to show the value of the assets held by the husband or wife can use a spreadsheet. Spreadsheets can be done in one of several programs, such as Quattro Pro, Lotus, or Excel. Or you can prepare a simple spreadsheet using the "Tables" function of WordPerfect or Microsoft Word (see spreadsheet table).
In figure 1, the spreadsheet is far superior to the usual way the judge gathers information; namely, the yellow pad. It lists assets as well as debts. Its "bottom line" shows both the total values for each partner as well as the percentage share (50 percent each, 60 percent/40 percent, etc.) that each one receives. It's also self-calculating; the entry of a new number will automatically change the totals and percentages at the bottom.
With a spreadsheet in front of her, the judge can easily visualize the present distribution of assets and determine what would be a fair and equitable division of assets. And with a laptop or a computer on the bench, the judge can easily revise the values, remove assets that may be separate property, and rearrange the distribution of property to come up with the best and fairest division. All of this may be done during the trial itself if counsel has the foresight and creativity to provide the judge with a diskette containing the proposed spreadsheet at the start of the hearing. And if the judge is on the cutting edge of creativity, she'll order each of the parties' lawyers to provide to the court at the start of the trial a disk showing how each proposes to divide the property.
And that's just the beginning. Want to illustrate the division of assets? Try a chart or a graph. The spreadsheet in Excel, Quattro Pro, or Lotus can easily be transformed into a chart showing how the property is currently held (see Property Division A). And then the chart could be rearranged to show how the proposed transfer of assets (or debts) could result in a much fairer division (see Property Division B).
Never Try a Case If You Can Avoid It
As my Air Force ROTC instructor once said, "A day on the ground is another day of flying safely." This translates in family law cases into: "If you never try the case, you can't lose it!" In many of these cases, there is no good solution, and neither party will benefit from the time, expense, and antagonism of a visit to the courtroom. In many family law cases, a good settlement is better than a great trial.
And that's where alternative dispute resolution (ADR) has a role. Court-mandated mediation of custody disputes or four-way settlement conferences (two lawyers and two parties) can take away part or all of the domestic trial work done by family advocates. And resolving even part of a domestic case out of court means: (1) more control over the settlement by the parties themselves; (2) less money spent for lawyers, depositions, and other expenses; and (3) less antagonism than that which is usually generated by a trial.
ADR is especially well suited to several types of domestic disputes:
- Visitation issues. These disputes often require detailed input by both parents and surgical skill in dividing up a child's time between two battling parents.
- Personal property. ADR also works well on the division of tangible personal property, such as household furnishings, by the parties to an equitable distribution case. This is something that judges are loath to undertake and will go to great lengths to avoid - including court-ordered yard sales, if necessary.
- Child support. The mandated use of guidelines in all 50 states means that there's more predictability in the outcome and less unexpected variance in the amount of support. Many couples can reach an amicable settlement on monthly child support, medical insurance, and medical expenses with the help of a skilled intermediary and a child support guideline sheet or a computer guideline program.
It may not be possible to mediate the whole case. Trials are often necessary over the hotly contested issues of custody, alimony, and business evaluations. But even if a portion of the trial is eliminated through ADR, that means less work, less expense, and faster resolution of contested issues for the parties.
Spreadsheet Table for the Mary L. Smith case AssetsHusband Wife Total House in Apex, North Carolina𧇈,000.00200,000.00 1996 Volvo20,000.00㺔,000.00 1992 Volvo Station Wagon㺊,000.0010,000.00 100 Shares IBM Common Stockم,000.005,000.00 Retirement Plan at ABC Company300,000.00𧈬,000.00 Checking Acct at XYZ Bankك,000.003,000.00 IRA at XYZ Bank㺌,000.0012,000.00 Household Furnishings5,000.0020,000.0025,000.00 Total Assets 325,000.00 250,000.00 575,000.00 Debts House Mortgage ,000.00-50,000.00 Lien on Volvo, ABX Credit Union-10,000.00 ,000.00 Credit Card Debt-5,000.00-5,000.00-10,000.00 Total Debts -15,000.00 -55,000.00 -70,000.00 Grand Totals 310,000.00 195,000.00 505,000.00 Percentages-% 61.39 38.61 100.00