How to Recognize a Superior Divorce Lawyer
A superior lawyer is different from a competent one.
Being a competent lawyer is hard enough. Being an excellent one requires commitment and dedication, and a deep yearning to keep improving and developing expertise in the craft. Skilled advocacy encompasses many different disciplines including technical legal knowledge, legal reasoning, procedural knowledge, psycho-social deftness. and performance skills. All these and more must be mastered to be effective in difficult cases and obtain superior results for clients. Here I will try to answer
why a superior lawyer is important to you and how you can recognize one when you encounter him or her.
Preparing the Case
One of the most important aspects of preparing a case is developing a comprehensive and cohesive “theory of the case.” A theory of the case is usually a one-sentence emotionally-compelling narrative that drives the decision-maker to find in your favor.
Preparing a winning theory of the case requires knowledge of the law as well as of all the relevant facts. Even one powerful fact that is inconsistent with your theory can destroy it. (For example a theory that a parent puts the children ahead of everything else would be destroyed by even a single instance of the parent leaving a child outside their school in the rain and snow for several hours as they pursued a dalliance or went drinking with mates.)
Preferably, a great theory also includes what the late Judge Ralph Adam Fine calls “legal jiu-jitsu,” the technique by which a skilled advocate uses the adversary’s strength against them by converting their greatest strength into a weakness and converting one’s own weakness into a strength.
Developing such a winning theory requires strategic thinking and the foresight to predict how things will play out, comprehensive knowledge of the law, and knowledge of human psychology. It requires knowing what must be done to defend against the opponent’s eventual counter. It requires an honest, balanced, disinterested assessment of the strengths and weaknesses of each side’s case. And, of course, wisdom and judgment. One someone feels beseiged the brain and body goes into self-preservation mode, ignoring everything but the perceived imminent threat. That’s why many people are unable to solve problems they have, even though they’ve solved the very same problem for others. It is because when someone feels besieged, they’re mind locks up and they are psychologically unable to take a broader, fully balanced view of all their available options. (For more on this, watch my presentation to the American Bar Association Family Law Section on “Divorce Without Destruction: Overcoming the psychological imperatives that make good people fight viciously” below.) You, therefore need a wise and clever counsel to give you the safety that will allow the brain to unfreeze so that you can make the decisions that will be right for you in the future as well as the now.
The practice of law is not arithmetic!
The practice of law is not arithmetic. A lawyer can’t get up and say “2 + 2, your Honor” and have the judge conclude “4, of course.” Many people mistakenly believe that the law is immutable and that it clearly compels a particular result in every case.
Lawsuits are like stories and how the judge “feels” about the story (and, unfortunately, the litigant) is as important as what the law says about it. Moreover, there is no other area of law where the Court has as much leeway and “discretion” as it does in family law matters. Thus, the secret that master litigators know is that litigation is as much about emotions as it is about technicalities.
Master advocates know that it is more important to present an emotionally-compelling case to a judge or jury, one that leaves them feeling that to not rule in the advocates’ favor will do a grave injustice. The technical “law” merely give the judge or jury the ability to rule in the advocates’ favor; the motivation to do so, however, must come from the emotional story of the case.
Thus, even if a litigant is able to master the “arithmetic” of the case, and knows the winning argument, too often the litigant cannot make the judge “feel” the injustice and therefore stands a grave chance of losing. That is why lawyers have a well worn adage, “Any lawyer who represents himself has a fool for a client.” For this and many other reasons it is almost always a mistake for a party to represent him- or her-self, even if the party is an experienced and skilled litigator. (For more, download my free monograph, “So, You Think You Don’t Need a Lawyer?“)
The Different Skills, Disciplines, and Techniques of a Superior Lawyer:
A competent advocate, and certainly a superior one, must master many disciplines, skills, and techniques. These include:
A. The substantive law governing all of the issues involved in your matter.
The “elements” that need to be proven for you to prevail in your matter. For example, to be awarded custody a Court will look for the “best interests of the child.” Many issues have been identified and included by the Courts in a best-interests rubric. The superior advocate must know them and recognize them when a client makes statements that might be relevant to a best-interests analysis. In each case, each point in contention will be governed by certain controlling law and the advocate, to be effective, must be familiar with the law, its application, and its exceptions;
B. The procedural law.
Procedural law refers to the “rules of play” and the “batting order” of the Courtroom. It includes how to get things done in Court, when formal motions need to be made, the rules governing such motions like, for example, when the motion must be made by Order to Show Cause. It includes how and when different motions must be made, what attachments have to be appended to them, when and how the motions may be opposed, and who goes first in presenting evidence. Although these are only the “rules of the game,” if you don’t know which way to run after you hit the baseball, you won’t be able to win the game.
C. The rules of evidence.
Completely aside from the rules of procedure, there is a separate body of law controlling the admission of evidence in Court so as to permit the Court to consider it. It is a sufficiently complicated area that law schools devote a full four-credit course to it–one of the most difficult. It includes the notorious “hearsay” rule, a simple several-line rule, with several exclusions and dozens of exceptions that sometimes make even judge’s eyes roll into the back of their heads. The Rules of Evidence includes the procedurl rules for establishing the foundations for the evidence that you might want to have introduced into evidence.
D. Burdens of proof, standards of proof, and burdens of persuasion.
In addition to the “elements” for each cause of action that you or your adverse party raise in Court, you must also bear in mind which party bears the “burden of proof” on each issue, and what the “standard of proof may be. The law has several different standards of proof that apply to different matters. For example in criminal cases the prosecution bears the burden of proof for every criminal element but the defense bears the burden of proof for any affirmative defenses. The standard of proof in criminal matters is “beyond a reasonable doubt.”
In civil cases the standard of proof is often “by a preponderance of the evidence.” That means that the fact-finder is left feeling that it is “more likely than not” that something either occurred or did not occur. In some matters the standard of proof might be “clear and convincing evidence.” That is higher than a mere preponderance but less than beyond a reasonable doubt.
Which party bears the burden of proof depends on the particular issue. For example, there is a presumption in the law that any property acquired after the marriage by either party is marital. Therefore, a party claiming that property was owned before the marriage, or purchased during the marriage with separate property money, bears the burden of proof on that issue.
As if all this were not complicated enough there is a shifting burden of persuasion. That is on some issues, once one party has come forward with some evidence, the burden of persuasion might shift to the other to refute the evidence introduced.
A superior lawyer, therefore, must always consider the standards of proof, the burdens of proof, and the burdens of persuasion on each element of every disputed issue and seek to use these to the client’s advantage and to the adversary’s detriment. Losing sight of one of these can be the death knell of a client’s case.
E. Courthouse — and, what we call here in New York, Part — rules.
Each Courthouse, and each Part (Courtroom) within the Courthouse, often publishes their own rules that control the Courthouse and the Courtroom, respectively. The superior lawyer must scrupulously adhere to these as well as to the governing law, the Civil Practice Rules and Procedure, and the statewide rules of the Administrative Board of the Courts and the rules of the Chief Administrative Judge of the Courts.
F. The custom and practice of the Courthouse or judge.
Some courthouses have their own convention or way of doing things that are not denominated in their published rules. Some judges have preferences, and are annoyed when their preferences are ignored.
G. General court decorum and “batting order.”
In addition to all the formal rules above, there is a general, formal, custom and practice about how to behave in a Courtroom. Moreover, there is an established “batting order” about who goes first and what happens next. As with the rules of procedure above, not knowing the lineup and being prepared for the proper order can have dire consequences.
H. Proper protocols and techniques for effective direct examination.
There are specific, detailed rules for proper direct examination and improper questions will not be allowed. In addition to the formal rules, there are advanced techniques known to superior lawyers in order to make direct examinations more powerful and leave a more lasting impact on the fact-finder.
I. Proper protocols and techniques for effective cross-examination.
Like direct examination, cross-examination has its own set of rules and protocols, and techniques on how to effectively destroy an unfavorable witness. (The rules of direct and cross-examination are generally encompassed within the rules of evidence but because of the skill and technique required to do it well is a separate study, they’re broken out separately here.) They require a lot of preparation to do well but are extremely effective. Done poorly . . . well, as one commentator noted, “Cross-examinations are more often suicidal than homicidal.”
J. Protocols and techniques for making effective opening and closing statements.
Like with other areas, many books and courses are devoted to every one of these elements of trial practice. There’s a good argument that cases are won or lost at the opening statement. Closing statements, of course, drive all of trial preparation.
K. Strategy and tactics, Game Theory and The Art of War.
Knowing what options are available is only a small, albeit important, part of protecting a client. Predicting the effect of one course of action over another is important so that the superior lawyer can give the client the information the client needs to make the decision(s) that are right for them.
A skilled advocate must be a clever strategist and tactician, schooled in Game Theory and familiar with military strategy to be able to create and successfully implement not just a strategy, but a strategy that will achieve the client’s objectives. Like in chess, the same move that otherwise might win the game, made too early or too late can cost the player the game. The practice of law is less like an arithmetic problem and more like a game of strategy and tactics. The ability to see into the future and be make predictions, gives a superior lawyer the ability to use what would otherwise be the opponents’ strengths against them.
L. Raconteur and the art of storytelling.
The essence of advocacy is sales. Selling an adversary on why to settle on favorable terms with you or selling the decision-maker (be it judge or, in some cases, jury) on the justice of your case. Thus, knowing the story is not enough. The advocate must be a skilled raconteur, able to bring the story to life, to evoke emotions that compel the decision-maker to not allow an injustice to be done or to continue; to redress the wrong that’s been done. This is not a mechanical, STEM skill. It is a performance-arts one. In addition to all the technicalities listed above, it also requires great emotional intelligence and the quick wit and ability to utilize the process in such a way that the client’s story has a dramatic impact. Anybody can pick up a paintbrush and paint a wall. But only an artist can make the wall imbue its inhabitants with the specific feelings the artist seeks to be evoked.
Some cases are “run of the mill,” where the issues have been dealt with so many times that it can be handled on auto-pilot. Too often, however, every case has unique angles that make the case and perhaps its outcome unique. Perhaps the area of law does not deal with a particular issue directly and the creative lawyer finds a maxim from another area to apply here to win the case. Perhaps this is a situation that does not have clear guidance in existing controlling caselaw. Moreover, finding “win-win” resolutions often require creativity, the ability to think of solutions outside the box, perhaps even solutions that no one’s considered before.
N. Stability and clear-headedness (to balance the creativity).
While creativity is important, it must be tempered by stability and clear-headed-ness. It is important for lawyers to recognize when an idea is so creative, so far out of the mainstream box that not only won’t it be accepted by any tribunal but it won’t even be considered. It might even destroy the advocate’s ability to represent the client as the lawyer will no longer be taken seriously by the tribunal. So creativity is important so long as it is tempered by knowledge of what is acceptable and the ability of the advocate to present even novel ideas in a way that make them sound reasonable. That is why we were able to achieve results that many other lawyers were not able to in Tony’s story.
O. Flexibility and nimbleness.
Litigation is never static. The sands of litigation are constantly shifting as the case moves forward, additional information is uncovered, the sides learn more about the controlling law, the judge makes rulings, and each of the parties adapt to them. As a result, something that was irrelevant yesterday may become crucial today; something crucial yesterday becomes irrelevant today. The skilled advocate must be nimble enough to “turn on a dime” and adapt to the shifting shape of the case, adapt the theory of the case and adapt the litigation strategy as needed. A big, bloated law firm, may have too many layers and too many people involved to make the necessary adjustments. A skilled lawyer must be flexible and nimble, able to adapt quickly and efficiently to the changes in the case. As Helmuth von Moltke the Elder, Chief of Staff of the Prussian army before World War I famously noted, “even the best-laid battle plans never survive the first encounter with the enemy.”
Though people-skills are important in advocacy, so are the scholarly ones. The people skills (EQ) will create an atmosphere for the fact-finder to feel compelled to find for the client. It is the law, however, that enables the judge to do so. The skilled advocate must therefore know all of the relevant statutes and case law and the reasoning and justification supporting those laws. The advocate must be able to recognize the issues that the parties and perhaps opposing counsel have not noticed nor identified. Most importantly, however, sometimes a case does not explicitly state the proposition that the advocate needs. The scholarly advocate, however, recognizes that for the court to have arrived at the result it arrived at, it had to hold the proposition that the client requires. The scholarly advocate is primed to recognize such unstated, but necessary, holdings of the case, and present it to the court for the win.
Q. Devotion and commitment to exert the mighty effort required to master and succeed.
In case all of the above has not made it explicit, doing all this work for the client is not simple nor easy. It requires dedication, devotion, and commitment to the client’s cause and victory. It requires what my law professor characterized as, “Sometimes you just have to mount the insurmountable wall!” I learned this from my mother, an Auschwitz survivor. Thrice she was sent into the line to the gas chambers, each time managing to extricate herself out and, ultimately, getting herself onto a work transport to a slave labor battalion. From her I learned never to be satisfied merely with the simple answer, and it is amazing how many times I’ve managed to snatch victory from the jaws of defeat by working through nights when necessary and appropriate, to find the evidence to prove the righteousness of my client’s cases. (Here about one such story here.)
R. The Formula For Success.
To summarize all of the above, a superior lawyer achieves a superior result for the client by combining Substantive knowledge (technical, psychological, & interpersonal knowledge and skills) with Advocacy Skills and Hard Work and Dedication together with Creativity, Flexibility and Nimbleness.
The Job of the Lawyer in an Adversarial System. Many people mistakenly believe that judges know all the laws. Some smart ones might. Many more do not. The “job” of the lawyer in our adversarial system is to “teach” the judge everything the judge needs to know to make the “right” decision.
The job of the other lawyer is to teach the judge everything she needs to know to make that side’s right decision. All the judge really should have to do is to point to one side or the other and declare, “You’re right.” That may sound easy, but it’s not. Well-litigated cases pose only hard calls for the judge to make.
To learn more about this or another topic relating to divorce and family law, check out our free New York Divorce Guides or call us today at (212) 964-6100!
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Of course, you will need a skilled lawyer to protect and defend you and your rights. Call our offices for a free telephone consultation and to learn how we can help you. A Manhattan Family Law Attorney at Chaim Steinberger, P.C. can give you a solid foundation for meeting your goals during divorce, legal separation, annulment, and more.