I have been a litigator my entire legal career. Trials are complicated and nuanced affairs. Many people have been talking about the Johnny Depp and Amber Heard defamation trial. Amber Heard’s legal team has had much criticism in the court of public opinion. To turn back the clock, the same type of criticism was directed at the prosecution in the O.J. Simpson murder trial that took place in the mid-nineties, about which time I began practicing law.
Looking back over my career, it strikes me as daunting as to how much procedural and substantive information a lawyer has to absorb to be a good and reputable trial attorney. There are rules of evidence to be mastered, many of which have evolved over centuries, having come from legal systems from foreign continents. Heavily is our US system of jurisprudence influenced by English law and custom.
Evidentiary rules and procedures is only one aspect of putting together a trial. Information has to be organized into digestible “packets.” This is necessary because divorce trials can, and often do, span a myriad of issues. One need only look at Massachusetts General Laws, Chapter 208, Section 34 to understand what “packets” of information these cases entail. According to that chapter and section of our law:
“The court, after hearing the witnesses, if any, of each of the parties, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.” M.G.L. c. 208, § 34 (2022).
Consider those factors spanning 5, 10, or 20 years or more.
Now consider that the court often limits the amount of time and the number of witnesses a party may call at trial. Some judges are extraordinarily stingy with the amount of trial time they grant. So, all this information has to be condensed into powerful persuasive packets of information and disseminated in an efficient manner.
That is a tall order to fill in and of itself.
Add to that that people (witnesses) often have never testified before and get nervous, stumble over words, and have to have their recollection refreshed at trial, which is a process unto itself.
Step one in the anatomy of a divorce trial is to separate muscle from fat. That process entails that the lawyer and the client work together to determine what are the most important and strongest aspects of their side of the divorce complaint, and what information is the most persuasive and compelling information to support and strengthen their theory as to how the court should make a determination after trial on that issue.
This endeavor requires a good working relationship between lawyer and client, and unwavering trust in the lawyer’s capability and proficiency at cutting through the confusion and emotional fog that the client often, and naturally, brings to the case. Most clients simply don’t know what is and what isn’t important to the court. And, importance is not a static thing. A case may have one hundred important packets of information on an issue that the client wants the court to hear. But, there often is not enough time to put one hundred packets of information before a judge on a single issue. So, prioritizing the packets by level of importance becomes the next task once they have been identified.
Now, in my experience, this first step itself has a chilling effect on many lawyers who advocate throughout the process aggressively and sometimes unreasonably. It’s a lot of work and takes a lot of insight and organizational skills. Lawyers who “throw information at the wall to see what sticks” at motion hearings are usually those who, in my experience, possess the least organizational skills and insight to discern the nuance between one piece of information and another and to effectively compress information into the time allotted.
As it applies to the organization of information part of a divorce trial, Bob Seger put it right, when he sang in Against the Wind, to deal with “deadlines and commitments . . . what to leave in, what to leave out.”
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