Dangerous Expectations

Last night, I was honored to participate in a Mock Trial series sponsored by the family law section of our local bar.  Our installment last night was the trial of the marital property segment of a divorce trial.  One of our judges was gracious enough to preside over the trial and to give us his feedback when we were done.  His comments mirror a lot of the advice I give my own clients here in the Trenches, and reinforce the truth of my admonitions.  Here is what he had to say:

1.   He thanked the attorneys for being detached and professional in the courtroom, and not stooping to personal arguments or ad hominem attacks.  Although it makes the clients feel better that their attorney is taking their case so personally, it detracts from the proceedings and the issues and facts the judge needs to consider.

2. Although clients want to tell their story, and want the judge to hear how badly their spouse treated them during the marriage and long-suffering they were (and every client wants this), the judge not only does not want to hear it, but also can negatively affect the judge's view of that client when making their final decision.

3.  The court is limited in what can do concerning "the stuff," known in the Trenches world as "tangible personal property."  If the parties don't agree on what to do with the stuff and, most importantly, who gets to keep it, the court can only order all of it sold or in limited cases, order that someone can use it for a short period of time - before it gets sold.

4.  Another word about arguing about the stuff.  The court does not want to hear about the dog, the goldfish, the record albums, the pots and pans and the sheets.  They will cut off the testimony concerning those items because of #3, above.  Further, they will be impatient with the client who raises the issue because they've wasted court time.  Oh, and also, see #2, above.

5.  The court wants the attorneys to educate it about the applicable law.  They want the attorneys to admit when an argument they've made is not supported by the applicable law.  They are open to any creative argument that can be supported by applicable law.

6.  Speaking of creativity, and perhaps the most important takeaway from last night....settlement is the only place for creativity.  The court is limited, severely, by what the law allows it to do.  The court may not be creative.  It may not think outside the box.  If the law doesn't support it, it may not give a party what they want no matter how much they may think they deserve it, or how compelling or sad the argument.  The law and the evidence supporting it are everything.  If you want a creative solution, stay out of the courtroom and stay away from a judicial decision.  Here in the Trenches.