As a young lawyer, I remember a conversation with a trusted colleague who has since retired. They had practiced divorce law for about as long as I had been alive at that point. The advice was more or less as follows:
Some divorce lawyers argue about the law in court. What a mistake. If you are arguing about the law then you are really just telling everyone that you either don’t know what you are doing or have no case at all and are being unreasonable. Just focus on the facts.
Now I certainly don’t think this advice applies all the time. It was an exaggeration to make an important and worthwhile point. This is also a spin on the old adage that attorneys should argue the facts when the law is against them – and argue the law when the facts are against them. By never arguing the law, I suppose you could try to at least act as if the facts were always in your favor.
However, I often think back to this advice whenever I see a young (or sometimes just plain ineffective) lawyer at court muddling through their case. Most of our trial judges know the law very well and don’t need to be reminded of the specifics in every case. The demand for trial time always exceeds the available supply. During the precious time you have to make your case and convince a judge of your position, the overwhelming focus should be on the facts. It is amazing – amazing! – how many lawyers don’t understand this and undermine their own cases.
To give you some idea of what it is like to watch a mess like this unfold in court while waiting for your own case to be called, it would be easier to give a “traffic court” sort of example. Imagine a trial over a ticket for running a red light. Instead of just calling their witnesses to the stand and asking them if the light was red, yellow or green (facts) or if they came to a stop or drove through the intersection (more facts) – the lawyer instead just spends 20 minutes lecturing the court about the law. What the law says you do at an intersection if the light is green, yellow or red. While this is a simple example, there are often genuinely simple controversies in family court that play out this way every day.
-Jon Von Kohorn
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