An associate was recently telling me about her experience with an attorney in court. The attorney was making misrepresentations to the judge. The judge was trying to question her and get to the point. The attorney wouldn't stop talking and she would not stay on point. This is a case where the attorney is clearly doing a disservice to her client. It made me think of some things that attorneys should do to more effectively represent a client in divorce court. Here are my do's and don'ts:
1. In preparing pleadings, whether for a motion or a brief, be brief and stay on point. In your motion, or in a brief, give reasons as to what you want and why. Make it clear to the judge what you want for a client.
2. When you are arguing on behalf of a client, stay on point. Tell a judge what you want and why.
3. Do not orally restate everything that you already put in writing in a motion or brief as if the judge has not read anything. Most judges are prepared. In oral arguments, it is important to amplify what is set forth in a motion or brief but not to wander all over the place. Provide additional points to convince the court of your client's position.
4. Be prepared. Don't fumble around with paperwork in court. This is not only an embarrassment to yourself and your client, but is a good way to lose a motion or a case.
5. Don't lie. If your client is telling you to lie, perhaps it is time to withdraw from a case. If you have a reputation for not telling the truth, it is going to hurt you in other cases. Remember that judge's talk to each other. They know who the good lawyers are, who the bad lawyers are, who the bullies are and who will bend the truth for a client. Client's come and go, but the judges and other attorneys are going to be with you throughout your career.
6 If you are winning a motion or a case, stop talking. I have always believed that less is often more. Some attorneys believe that the more you say, the better, and a judge is going to give you a victory in a motion or hearing if you keep talking. Most judges I talk to disagree with that. When an attorney keeps talking, especially if that attorney is getting off point, all he or she is doing is undermining the case and probably setting himself or herself and the client up for a loss.
7. Be courteous. You may not like or agree with the judge, but the position is one that commands respect. Always be respectful in court. Even if you do not like or respect the judge, never show this in court. You are only undermining your position and your clients.
8. Dress appropriately. Early in my career, there was a judge in a court where I practice who would tell attorneys to leave court if the attorney was wearing anything but a white shirt and tie. Of course, by the end of his career, the judge changed but I believe suits and ties are appropriate. I do not even think a sport coat is appropriate for an attorney in court.
9. Explain to your client what to expect in court in advance, so that even though there are often surprises in court, the client has an idea as to what to expect or not to expect. Be realistic; do not oversell your case. Being unrealistic with a client is the best way to set yourself up for disaster, and perhaps lose a client.
10. Be on time. Do not keep the other side waiting, and make sure your client is on time.
11. Make sure your client dresses appropriately. Jeans and cut-offs are not appropriate for court. Many clients do not have a suit or sport coat and tie, but dressing neatly for a man is important, and for a woman a pantsuit or modest outfit is appropriate. One should not be walking into court as if she is about to go out on a Friday evening. Remember the adage, that first impressions are always lasting ones, and this is true for a judge who is watching you from the bench while your case is being argued in court.
Last but not least, I state this time and again: The best results are those that are worked out without going to court. When you go to court, no matter how strong your case may be, you never know what a judge will do. These are some of my thoughts, what are yours?
By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222